1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.623 OF 2008 IN SUIT NO.463 OF 2008 Lohana Bhuvan Co-op. Hsg.Soc. Ltd. ...Plaintiff. Vs. Pragatee Construction & Ors. ...Defendants. .... Mr. Vijay Naik with Mr. Arif Y. Bookwala, Senior Advocate and Mr. G. Mohanty i/b. M/s.Mohanty & Associates for the Plaintiff. Mr. Harihar Bhave i/b. Bhave & Co. for Defendant Nos.1 and 2. Mr. Virag Tulzapurkar, Senior Advocate i/b. Shashank C. Thatte for Defendant Nos.4 to 10. Mr. A.A. Joshi with Ms.Bharati Lele for the occupants. Mr.D. H. Mehta i/b. Pravin Mehta & Mithi & Co. for Intervenor Saikrishna Developers. ..... CORAM :DR.D.Y.CHANDRACHUD, J. March 7, 2008. P.C.: An injunction has been sought restraining the Defendants from utilizing the benefits of a plot of land more particularly described in Exh.A to the Plaint, to the extent of an area of 2,000 sq.yards being CTS 435 to 438 at Paliram Road, Andheri (West), Mumbai. Mandatory relief has been sought against the Municipal Corporation for the revocation of the plans sanctioned and the commencement 2 certificate dated 2nd April 2007. The appointment of a Receiver has been sought. The Plaintiff is a Co-operative Society consisting of 36 members. On 30th January 1969, an agreement was entered into between Defendant Nos.4 to 10 as the owners of the land and one of the members of the Co-operative Society. The agreement contemplates that the owners who were Trustees were constructing a building on a portion of the property. Under Clause 3 of the recitals, it was stipulated that after the building is constructed and the completion certificate is obtained, the owners shall demise land admeasuring 2000 sq.yards on lease subject to the permission of the Charity Commissioner. Clauses 32 and 38 of the agreement have a bearing on the dispute in the present case and provide as follows: “32. After the building is complete and ready and fit for occupation and after the society or limited company is incorporated and registered and only after all the flats and garages in the said building have been sold and disposed of by the party of the first part and after the party of the first part have received all dues payable to them under the terms of the agreement with various flat holders, the party of the first part shall grant direct lease in the favour of the said society or limited Company to be formed in respect of land occupied by the building herein and subject to such 3 terms and conditions as the party of the first part may think fit and proper. 38. It is agreed by the party of the second part that the party of the first part have every right over the flat hall basement, terrace of the building, well, and/or open land surrounding the building as owners to use for themselves or for the benefit of their community or for giving all or any of the said things on hire or on rent or to sell all or any of the said things as mentioned herein and the party of the second part shall not at any time cause obstruction or objection to the same for the user in respect thereof nor will at any time make or cause to be made any obstruction or objection or whatsoever nature on the said things or any part thereof. it is further agreed by the party of the second part that any further construction on the terrace premises shall be done by the party of the first part and the party of the first part shall have every right to sell or to give on rent or otherwise all such additional construction to any one as they like as owners of the said premises.' The Charity Commissioner granted his sanction on 6th January 1968 under Section 36 of the Bombay Public Trusts Act, 1950, to the lease of land admeasuring 2000 sq.yards to the Co-operative Housing Society that was to be formed for a period of 98 years on a monthly rental of Rs.1511/-. The case of the Plaintiff is that Defendant No.10 which is a Trust and its Trustees had agreed to lease the land admeasuring 2000 sq.yards pursuant to which the members of the 4 Plaintiff purchased their respective flats. Sometime in May 2007, construction was commenced by the Defendants by demolishing the existing chawl to which a reference is found in paragraph 25 of the Plaint. The grievance of the Plaintiff is that the Defendants have commenced excavation on a portion of the land agreed to be leased to the Plaintiff. The Plaintiff claims to have been in use and occupation of the building and the surrounding area of 2000 sq. yards since 1958. The suit has been instituted for a direction to the Trustees to sub-divide the plot of land and to execute a lease in respect of the area admeasuring 2000 sq. yards and for other consequential reliefs including revocation of the plans sanctioned by the Municipal Corporation and an order of permanent injunction restraining the Defendants from developing upon the leasehold area of 2000 sq. yards. Now, in determining as to whether any case has been made out for the grant of interlocutory relief, it is pertinent to note that the Plaintiff claims its rights and interests in pursuance of the agreement dated 30th January 1969. At Exhibit 'B' to the Plaint is a 5 plan of the entire property including the land in respect of which the Plaintiff claims interest. The agreement of 1969 contemplated in Clause 3 of its recitals that upon the construction of the building, the owners shall demise land admeasuring 2000 sq.yards on lease subject to the permission of the Charity Commissioner. Now, before the Court, there is no dispute about the fact that even prior to the agreement dated 30th January 1969 there was an existing chawl situated on a portion of the larger property and it has been stated before the Court that there were approximately 18 occupants and about 4 or 6 enchroachers. The plaint, as noted earlier, contains a reference to the existing chawl in paragraph 25. The principal defence is that at the time when the agreement of 30th January 1969 came to be executed, there was an existing 20 feet road upon which the property abutted. This road was subsequently widened in the course of proceedings under Section 299 of the Mumbai Municipal Corporation Act, 1888 and land to that extent had to be surrendered to the Corporation for widening of the road. The reply filed by the Ninth Defendant, who is one of the trustees, inter alia refers to a communication dated 22nd December 1988 of the Municipal 6 Corporation recording that set back land to the extent of 1057 sq.mtrs. at Paliram Road, was taken over free of cost from CTS 435(1 to 7), 436, 437 and 438 from the Trustees. Besides this letter of the Ward Officer of K/West Ward, there is another letter addressed to the City Survey Officer by the Assistant Engineer in the K-West Ward recording the acquisition of 1057 sq.mtrs. by the Municipal Corporation for road widening. Reliance has also been placed on the Property Register which inter alia contains a reference to the letter dated 22nd December 1988 of the Municipal Corporation and to the acquisition of the land for the purposes of road widening. 7 Prima facie, therefore, it would appear from the material before the Court at this stage that after the agreement which was executed by the owners on 30th January 1969, acquisition has taken placed of a portion of the land over which the Plaintiff claims interest for the purposes of road widening. To that extent, therefore, there would be merit in the defence that the extent of the land which is required to be leased to the Plaintiff would be affected by the supervening circumstance relating to the acquisition of a portion of the land by the Municipal Corporation. The next aspect of the matter which merits emphasis is the existence of a chawl on a portion of the land which was in the occupation of diverse occupants. A redevelopment is now taking place under which rights have been granted to the First and Second Defendants as developers. The process of redevelopment, however, will have to be carried out in such a manner as would not infringe or obstruct the rights which enure to the benefit of the Plaintiff by the agreement dated 30th January 1969. On the Plan at Exh.B to the Plaint, the line of the building construction has been highlighted in a 8 pink coloured shaded portion. During the course of the arguments, the pink line has been identified by the letters 'A' and 'B'. The Defendants have agreed and undertaken before the Court that with a view to protect the rights of the Plaintiff under the agreement dated 30th January 1969 no construction whatsoever shall be carried out by the Defendants on the Eastern side of the line A-B i.e.; no construction shall be carried out by the Defendants on the right side of the line marked by the letters 'A' and 'B'. This statement is accepted and there shall be accordingly an order of injunction in the aforesaid terms. Counsel appearing on behalf of the Defendants has submitted that the Defendants should not be precluded from constructing an underground water tank and for laying utility cables and they shall not carry out any construction of any building on that portion. At this stage, it would be necessary to refer to clause 32 of the agreement dated 30th January 1969 and clause 38. Clause 32 provides that after the building is complete and ready for occupation and all the flats have been sold and disposed of by the owners, the owners shall grant a direct lease in favour of the Society to be formed 9 in respect of the land occupied by the building. Clause 38 provides that the owners shall inter alia have every right over the open land surrounding the building as owners to use for themselves or for the benefit of the community. The purchasers agreed that they shall not at any time cause obstruction or objection to the same for the user in respect thereof. The contention of the Defendants is that at all material times, there was a common layout in respect of the entire land including the portion which has been agreed to be leased to the Plaintiff. It is not appropriate at the present stage to express any final or conclusive view on this aspect of the matter since inter alia, the question as to whether there was one common layout would have to be decided on the basis of evidence adduced at the trial. Prima facie, clauses 32 and 38 of the agreement would support the contention of the Defendants. The Notice of Motion shall accordingly stand disposed of with the direction that on the plan which is annexed at Exh.B to the Plaint, the Defendants, including Defendant No.1 and 2 as developers, shall not carry out construction of any building on the 10 eastern side of the pink coloured line more particularly demarcated with the letters 'A' and 'B'. In the event that the Defendants utilize or have been permitted to utilize any portion of the FSI benefit in respect of the aforesaid area of land, such utilization shall abide by the final decree that would be passed in the suit. This order shall not be construed to be any order of injunction on the work of development which may be carried out strictly subject to and in accordance with the sanction granted by the Municipal Corporation on the western side of the line marked as A-B. ......