1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION APPEAL APPEAL APPEAL FROM FROM FROM ORDER NO.259 OF 2008 ORDER NO.259 OF 2008 ORDER NO.259 OF 2008 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO.311 OF 2008 APPLICATION NO.311 OF 2008 APPLICATION NO.311 OF 2008 Pitambar Pitambar Pitambar Mahadeo Mahadeo Mahadeo Chavan & ors.. Appellants Chavan & ors.. Appellants Chavan & ors.. Appellants (Orig.Plaintiffs) (Orig.Plaintiffs) (Orig.Plaintiffs) vs vs vs D.N.Nagar D.N.Nagar D.N.Nagar Sai Sai Sai Suman Co-op Suman Co-op Suman Co-op Housing Housing Housing Society Ltd Society Ltd Society Ltd ...... Respondents Respondents Respondents (Orig.Defendants) (Orig.Defendants) (Orig.Defendants) Mr.Nitin Mr.Nitin Mr.Nitin Gangal Gangal Gangal for Appellants for Appellants for Appellants Mr.Bharat Mr.Bharat Mr.Bharat Mehta Mehta Mehta a/w Mr.L.G.Waigankar for a/w Mr.L.G.Waigankar for a/w Mr.L.G.Waigankar for for for for Respondents Respondents Respondents CORAM CORAM CORAM : : : S.J.Vazifdar, J S.J.Vazifdar, J S.J.Vazifdar, J DATED DATED DATED : : : 4th April, 2008 4th April, 2008 4th April, 2008 P.C. P.C. P.C. 1.1.1. The impugned order warrants no interference The impugned order warrants no interference The impugned order warrants no interference inin in these proceedings. these proceedings. these proceedings. 2.2.2. The Appellants are the Plaintiffs. Plaintiff The Appellants are the Plaintiffs. Plaintiff The Appellants are the Plaintiffs. Plaintiff no.1 no.1 no.1 is the father and Plaintiff nos.2 and 3 are is the father and Plaintiff nos.2 and 3 are is the father and Plaintiff nos.2 and 3 are his his his sons. sons. sons. Plaintiff no. 1 is admittedly the owner Plaintiff no. 1 is admittedly the owner Plaintiff no. 1 is admittedly the owner of of of shop No.41 in the suit premises. Plaintiff no. shop No.41 in the suit premises. Plaintiff no. shop No.41 in the suit premises. Plaintiff no. 1 is admittedly a member of the society that owns is admittedly a member of the society that owns is admittedly a member of the society that owns the the the building. building. building. 3.3.3. The building is in a dilapidated condition. The building is in a dilapidated condition. The building is in a dilapidated condition. The The The land belongs to MHADA. There is a proposal by land belongs to MHADA. There is a proposal by land belongs to MHADA. There is a proposal by the the the Respondents for Respondents for Respondents for the redevelopment of the the redevelopment of the the redevelopment of the building building building to ensure the safety and for the benefit to ensure the safety and for the benefit to ensure the safety and for the benefit of of of about 40 members of the building. The about 40 members of the building. The about 40 members of the building. The Appellants Appellants Appellants seek to stall the redevelopment of the seek to stall the redevelopment of the seek to stall the redevelopment of the building. building. building. 4.4.4. On 10th October, 2005 an unanimous resolution On 10th October, 2005 an unanimous resolution On 10th October, 2005 an unanimous resolution 2 was was was passed by the members of Respondent no. 1 in passed by the members of Respondent no. 1 in passed by the members of Respondent no. 1 in respect respect respect of the said re-development. Admittedly, of the said re-development. Admittedly, of the said re-development. Admittedly, Appellant Appellant Appellant No.1/Plaintiff no.1 is also a signatory No.1/Plaintiff no.1 is also a signatory No.1/Plaintiff no.1 is also a signatory toto to the said resolution. the said resolution. the said resolution. 5.5.5. The Appellants/Plaintiffs had constructed an The Appellants/Plaintiffs had constructed an The Appellants/Plaintiffs had constructed an extention extention extention adjoining shop no.41. The extended adjoining shop no.41. The extended adjoining shop no.41. The extended portion portion portion in fact even blocks the free ingress and in fact even blocks the free ingress and in fact even blocks the free ingress and egress egress egress from from from that portion of the property. There is that portion of the property. There is that portion of the property. There is no no no dispute even by the Appellants that the dispute even by the Appellants that the dispute even by the Appellants that the extention extention extention was was was unauthorised and illegal. They admit unauthorised and illegal. They admit unauthorised and illegal. They admit that that that in respect of the extention they are in respect of the extention they are in respect of the extention they are tresspassers. tresspassers. tresspassers. 6.6.6. It is however submitted that though the It is however submitted that though the It is however submitted that though the Appellants Appellants Appellants are tresspassers their illegal are tresspassers their illegal are tresspassers their illegal construction construction construction ought to be protected at this stage ought to be protected at this stage ought to be protected at this stage from from from being demolished without the Respondents being demolished without the Respondents being demolished without the Respondents adopting adopting adopting the due process of law. the due process of law. the due process of law. 7.7.7. Appellant no. 1/Plaintiff no.1 was a party to Appellant no. 1/Plaintiff no.1 was a party to Appellant no. 1/Plaintiff no.1 was a party to the the the resolution of 10th October, 2005. He resolution of 10th October, 2005. He resolution of 10th October, 2005. He therefore, therefore, therefore, cannot oppose the re-development of the cannot oppose the re-development of the cannot oppose the re-development of the property. property. property. 8.8.8. Faced with this difficulty, it is contended Faced with this difficulty, it is contended Faced with this difficulty, it is contended that that that plaintiff plaintiff plaintiff nos. 2 and 3 are entitled to resist nos. 2 and 3 are entitled to resist nos. 2 and 3 are entitled to resist the the the redevelopment. redevelopment. redevelopment. They are however not members of They are however not members of They are however not members of the the the society. society. society. The evidence on record show that they The evidence on record show that they The evidence on record show that they are are are entitled to claim only through the Appellant entitled to claim only through the Appellant entitled to claim only through the Appellant no.1 no.1 no.1 their their their father. They are therefore not entitled father. They are therefore not entitled father. They are therefore not entitled toto to oppose the redevelopment which will affect the oppose the redevelopment which will affect the oppose the redevelopment which will affect the 3 entire entire entire society adversely. society adversely. society adversely. 9.9.9. Needless to add, the respondents shall be Needless to add, the respondents shall be Needless to add, the respondents shall be entitled entitled entitled to commence any construction only after to commence any construction only after to commence any construction only after obtaining obtaining obtaining the necessary permissions the necessary permissions the necessary permissions. 10. 10. 10. If the illegal construction is allowed to If the illegal construction is allowed to If the illegal construction is allowed to remain remain remain the rights and interest of all the other 40 the rights and interest of all the other 40 the rights and interest of all the other 40 members members members will be seriously jeopardised. It is will be seriously jeopardised. It is will be seriously jeopardised. It is clarified clarified clarified that that that this order and the pendency of these this order and the pendency of these this order and the pendency of these proceedings proceedings proceedings shall not preclude the parties from shall not preclude the parties from shall not preclude the parties from adopting adopting adopting proceedings in accordance with law for proceedings in accordance with law for proceedings in accordance with law for establishing establishing establishing their rights if any. their rights if any. their rights if any. 11. 11. 11. In the circumstances, Appeal from Order is In the circumstances, Appeal from Order is In the circumstances, Appeal from Order is dismissed. dismissed. dismissed. Consequently, the Civil Application Consequently, the Civil Application Consequently, the Civil Application does does does not suvive and is dismissed. The interim not suvive and is dismissed. The interim not suvive and is dismissed. The interim order order order shall continue for four weeks. shall continue for four weeks. shall continue for four weeks. 4