*1* nms.329.10.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.329 OF 2010 IN SUIT NO.251 OF 2010 Bharat J. Patel and others. ..Plaintiffs -Versus- Urmila Ramsagar R. Pathak and others. ..Defendants .......... Mr.Vijay Thorat, Senior Counsel a/w Bipin Joshi a/w I.M.Vohra, for the Plaintiffs. Mr.D.D.Madan, Senior Counsel a/w V.K.Shiralkar i/b Shiralkar and Company, for the Defendant No.7. Mr.Ryan D’Souza i/b Jose George, for the Defendant Nos.11 and 12. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 18th October, 2010. P.C. 1 This Notice of Motion is moved in a suit which is filed by the Plaintiffs for a declaration that the documents at Exhibits-E to P of the plaint are illegal, void and not enforceable so also, not binding upon them. The documents are sought to be cancelled and whatever permissions have been given by the Bombay Municipal Corporation should also be set aside is the other request of the Plaintiffs. The Plaintiffs are seeking mandatory order against the Defendant No.13 Corporation to take appropriate steps for demolition of the work unlawfully carried out by the Defendant Nos.11 and 12 on the property which is more particularly described in Exhibit-B to the plaint. As far as the interim *2* nms.329.10.sxw reliefs are concerned, in furtherance of the main reliefs, the relief of appointment of the Court Receiver, Bombay High Court, so also, interim injunction restraining the Defendant Nos.1 to 12 and all persons claiming through them from developing, disposing of, alienating, encumbering, parting with possession, so also, creating third party rights, is claimed. One of the reliefs claimed is prayer clause (i) of the plaint, which reads thus:- “(i) Pending the hearing and final disposal of the suit, the Defendant No.13 be directed to issue stop work notice to the Defendant Nos.1 to 12 in respect of the building under construction at the suit site described in prayer (a) above.” 2 When this Notice of Motion was placed for ad-interim relief this Court noted that the construction has commenced in the year 2008, the Plaintiffs came to know about the documents in the year 2008 and the present suit is filed in January, 2010. Prima facie opinion with regard to the delay in approaching this Court has been recorded but since the pleadings are not complete, the Court ordered that the Notice of Motion be heard finally. 3 I have, therefore, heard this motion finally with consent of the parties. 4 It is stated that the Plaintiffs claim ownership of the suit property. The ownership is claimed on the strength of the documents which are referred to in paragraph No.1 of the plaint. It is stated that the Defendant Nos.1 to 4 are heirs and legal representatives of one Ramsagar Rudraprakash Pathak (deceased). It is stated that a civil suit was filed against the said Ramsagar Rudraprakash Pathak in the Bombay City Civil Court being Suit No.953/1983. On his death, the Defendant Nos.1 to 4 were brought on record. It is stated that the suit property is more *3* nms.329.10.sxw particularly described by a sketch/map annexed at Exhibit-B and a particular description of the entire property is at Exhibit-C to the plaint. 5 It is stated that one Shantilal Tejpal Lodha was the Plaintiff in the said suit before the City Civil Court. He was claiming leasehold right in the entire property under the agreement for lease dated 17.08.1975, which is purported to have been executed by the Plaintiffs and the Defendants jointly therein, from their predecessors in title and particularly the predecessors in title of the Plaintiffs in this suit. There was compromise arrived in the suit before the City Civil Court on 23.01.1991 and the terms record that the Plaintiffs presently before this Court are the owners of the property and they will grant lease in favour of the Defendant Nos.1 to 4 for a period of 99 years with a right to assign and sublet the leasehold rights in respect of the suit property. Relevant clauses of the consent terms are reproduced in the plaint and it is alleged, thereafter, that at no point of time any lease deed was executed in favour of the Defendant Nos.1 to 4. There was no execution of the said decree and now the consent decree cannot be enforced by virtue of the fact that the period prescribed by the Limitation Act has expired. On this basis it is alleged that no rights are created in favour of the Defendant Nos.1 to 4. That being the position, the Defendant Nos.1 to 4 could not have created any right in favour of the Defendant No.7 Society, therefore, the Defendant No.7 could not have executed the development agreement with the Defendant No.11 (Developer). In such circumstances, the documents executed namely purported lease deed, deed of confirmation and the power of attorney are all illegal, not binding upon the Plaintiffs. The details of such documents are set out at page Nos.12, 13 and 14 of the plaint. 6 Thereafter, it is stated that some permissions and approvals *4* nms.329.10.sxw have been granted by the Bombay Municipal Corporation and those documents are referred to at page Nos.15 and 16 of the plaint. It is stated that the signature of the Plaintiff No.1 is a forgery and therefore, the lease deed cannot be said to be a genuine document. 7 On such statements and allegations the suit has been filed and my attention is invited by Mr.Thorat to the consent terms, copy of which is at page No.49 of the paper book, and particularly, clause Nos.3, 4, 5 and 7 thereof. My attention is also invited to the lease deed and particularly the portion wherein the signatures are stated to have been put by the parties. According to Mr.Thorat, the deed of lease stated to have been made on Rs.10/- stamp paper which is not registered, makes it clear that the document is not genuine, therefore, the lease deed in furtherance thereof and the deed of confirmation are questionable and doubtful documents. 8 On the other hand, my attention is invited to the affidavit in reply filed in this Notice of Motion and particularly by the contesting Defendants. The Defendant No.7 is a Co-operative Society of the Industrial Premises and it has filed two affidavits and in its detailed affidavit which has been filed in reply to this Notice of Motion, it has been stated that the consent terms dated 23.01.1991 by itself is an agreement which is duly witnessed by the Court and the agreement continues to be binding inasmuch as thereafter, there is no need to execute any decree. There was a lease deed in favour of Ramsagar Rudraprakash Pathak. The decree as such is fully acted upon and even otherwise, is valid and binding. Assuming and without admitting that the lease deed is not binding or the consent terms themselves are not executable, even then, they do not lose their character as a valid agreement. In other words, the agreement recorded in the consent terms is valid, subsisting and binding. *5* nms.329.10.sxw It is stated that there is a deed of lease executed by Shantilal Tejpal Lodha including the Plaintiff No.1. The Plaintiff No.1 is signatory to the consent terms and the Plaintiff Nos.2 and 3 are claiming through the constituted attorney of the Plaintiff No.1. There is a deed of lease and when the property is occupied by 31 persons who are monthly tenants of the structures and when they formed a co-operative society, they requested the heirs of Ramsagar Rudraprakash Pathak to sub-lease the property to them. It is in such circumstances, the deed of lease dated 25.06.2003 between the heirs of Ramsagar Pathak under which the property was sub- leased in favour of the Chief Promoter of the Defendant No.7 Society came to be executed. It is stated that under the consent terms and the agreement in that behalf, there was also authority to develop the property and once the Defendant No.7 is claiming on that basis, it was fully authorized to execute the development agreement dated 05.08.2007. For all these reasons it is prayed that there is no substance in the Notice of Motion and the case of the Plaintiffs is clearly after thought. 9 There is a rejoinder affidavit by the Plaintiffs controverting this statement of the Defendant No.7 and reiterating the case in the plaint. 10 The Defendant Nos.11 and 12 have also filed an affidavit of one Jitendra Jain who states that the development rights were granted in favour of the Defendant No.11 under the development agreement dated 05.08.2007. The board of Defendant No.11 was put on the suit property immediately on 05.08.2007. Despite knowledge in August, 2007, the Plaintiffs have chosen to approach this Court in January, 2010. The claim is belated and this is a litigation to harass the developer and all other persons who are entitled to claim through the Defendant Nos.1 to 4 and 7. *6* nms.329.10.sxw 10 My attention is invited by Mr.Thorat to the rejoinder affidavit of the Plaintiffs so also one affidavit filed by Sunil Patil, Assistant Engineer, Building Project (P), WS-II in the employment of the Bombay Municipal Corporation. This affidavit of the Defendant No.13 Corporation and more particularly paragraph No.4 thereto clarifies that the plans were put up for approval. The plans were scrutinized and approved for the building comprising of basement for parking plus ground floor (part) plus stilt (part) plus 1st floor for podium parking plus 2nd to 11th floors on the condition to consume FSI-1 plus TDR and other conditions. However, there are some complaints received with respect to ownership and the plot boundaries. It is indicated that title certificate issued by Advocate Mr.S.K.Choubey has been withdrawn. That title certificate is in favour of the Defendant No.7 Society. The Corporation by a letter dated 31.10.2009 requested the Architect to resolve the dispute of ownership and submit a fresh title certificate. In paragraph No.4(D) of the affidavit, this is what is stated:- “4(D) I say that the site under reference was inspected by the staff of E.E.B.P. (W.S.) when it was observed that the work at the site was carried out beyond Commencement Certificate and found work in progress upto 3rd floor level. These defendants thereafter issued a notice u/s 354A of the M.M.C. Act calling upon the developer to stop the work forthwith, which was being carried out beyond Commencement Certificate. The said notice was being served upon the Architect on 29th October, 2009. I further say that the Architect was asked to submit fresh Title Certificate which is not yet replied as mentioned above. I say that in case of proposed service Industrial Estate, the Commencement Certificate was granted up to top of basement. However, due to work carried out beyond approved plans and Commencement Certificate, the stop work notice has been already issued by these Defendants on 10th March, 2010. At present the work is stopped at 3rd floor level. I say that the Architect has stated that, *7* nms.329.10.sxw because of the boundary dispute with the adjoining property owner to compound wall on East side, cannot be constructed. The Architect has now requested to condone the deficiency in open space created due to dispute between Defendant Nos.1 to 12 and Plaintiffs. The Architect has further requested to issue further Commencement Certificate for the proposal under reference. Moreover, Title Clearance Certificate is not submitted by the owner and when the work was found started inspite of the stop work notice, these Defendants have initiated action under Section 53(1) of the M.R.T.P. Act which is pending.” 11 Pertinently when the Defendant Nos.11 and 12 have filed an additional affidavit on 03.08.2010, they have not dealt with this stand of the Corporation. 12 In the result, prima facie the Court will have to presume that there is stop-work notice under Section 354A of the M.M.C. Act, 1888. In such circumstances, the stand of the Corporation that the construction cannot proceed at this stage deserves to be accepted. 13 On attention of Mr.D’Souza being invited to the stand of the Corporation, he submits that this affidavit is filed on 05.08.2010 and thereafter, position has undergone a change. He submits that the construction has proceeded upto ground plus 9 upper floors and all objections which have been raised by the Corporation stand complied with. The Corporation did not have the benefit of the agreements in relation to the purchasing of Transferable Development Rights (TDR) by the developer. Now TDR is purchased from the market and the developer may approach to Corporation for proper approvals and permissions. In other words, the construction is proceeding despite issuance of stop-work notice, it is capable of being regularized on the basis of the acquisition of transferable development rights. *8* nms.329.10.sxw 14 After hearing the respective parties at some length, I am of the prima facie opinion that the Plaintiffs have approached this Court belatedly. Further construction has proceeded after the developer was put in possession in August, 2007. Therefore, the Plaintiffs cannot, at this stage, seek an order of restraint against the construction activity at site. Apprehension of Mr.Thorat that third party rights, if created, in regard to this construction would complicate the matter further, can be set at rest by directing that Defendant Nos.7, 11 and 12 and all persons claiming through them shall put the flat/unit purchasers to a specific notice that the dealings and transactions with them will be subject to the final orders in this suit and that the present suit is pending in this Court. Further it is clarified that the parties shall not be entitled to claim any equity when final orders in this suit are passed. 15 Equally, denial of this injunction particularly in terms of the prayers of Notice of Motion shall not be construed as a licence to carry on the construction activities, despite stop-work notice. The approvals and permissions by the local authorities including the Bombay Municipal Corporation, are necessary in law. The construction work shall be subject to such approvals and permissions and this Court has not expressed any opinion as to whether the construction already carried out is in defiance of the stop-work notice or otherwise. This decision must be reached by the Bombay Municipal Corporation and all other competent authorities independently. If the construction is not capable of being regularized, it must be dealt with, in accordance of law. This order does not prevent the authorities including the Bombay Municipal Corporation from demolishing the construction if it is found to be unauthorized and illegal. It is for the Bombay Municipal Corporation to take such action including acting in furtherance of the stop-work notice, if it is of the opinion that *9* nms.329.10.sxw the construction is proceeding without approvals and permissions and despite the stop-work notice. However, this order does not prevent the Developer from approaching the Corporation and other competent authorities seeking approvals and permissions and such controversy must be dealt with, in accordance with law. 16 With these clarifications, this Notice of Motion is disposed of. (S.C. Dharmadhikari, J)