1 ao630-632.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.630 OF 2010 WITH CIVIL APPLICATION NO.808 OF 2010 Ashirwad Co-operative Housing Society Ltd. & Anr. ...Appellants vs. Jamalchand & Sons & Anr. ...Respondents AND APPEAL FROM ORDER NO.632 OF 2010 WITH CIVIL APPLICATION NO.810 OF 2010 Jamalchand & Sons ...Appellant vs. The Municipal Corporation of Greater Mumbai & Ors. ...Respondents Mr.G.S.Godbole with Mr.Chirag Balsara i/b M/s.Divya Shah Associates for Appellants in A.O.No.630/2010 and for respondent no.2 in A.O.No.632/2010 Mr.Sayeed Akhter for respondent no.1 in A.O.No.630/2010 and for appellant in A.O.No.632/2010 Mr.J.Rais with Mrs.R.K.Soraan for B.M.C in both the Appeals. CORAM : R.C.CHAVAN,J. DATE : JULY 19, 2010 P.C.: 1 These two Appeals question the order passed by the learned Judge, City Civil court, Mumbai on 7th May 2010 whereby he directed the parties to maintain status quo in respect of the tenement nos.4,5 to 8, 18,20 and 21 admeasuring 5810 sq. ft. situated at M.H.Compound, Byculla, Mumbai. 2 Appeal No.630 of 2010 is filed by the Society along with developer and Appeal No.632 of 2010 is filed by the plaintiff. These two appeals are taken up for final disposal at admission stage by consent of the parties. 2 ao630-632.sxw 3 I have heard the learned counsel for the plaintiff, society, developer as well as learned counsel for the Municipal Corporation of Greater Mumbai. The plaintiff approached the trial Court contending that he had in fact 9150.18 sq. ft. area including the vacant land as a tenant thereof and therefore, since he was occupying that area, he was entitled to be alloted equivalent area in the building to be reconstructed. As against this, according to the Municipal Corporation as also other defendants i.e. Society and developer, the plaintiff was only in possession of 5810 sq. ft which had been the area of the premises given to the plaintiff by the Municipal Corporation on leave and licence basis. The learned counsel for the plaintiff further submitted that the society and developer as also Corporation have altered the area occupied by the other occupants which suits the purpose of the chairman of the society and therefore, entire scheme of development was an attempt to grab more area for the chairman of the society. Therefore, the plaintiff opposed the implementation of the scheme and sought an injunction to restrain the society and the developer from dispossessing him from Gala Nos.4,5 to 8, 18, 20 and 21 without following due process of law and further restraining the respondents from developing the property further. 4 The leave and licence agreements of property along with the deeds of indemnity executed by the plaintiff in favour of the Municipal Corporation show that the total area which had been alloted to him was only 5810 sq. ft. The learned counsel for the plaintiff-appellant in A.O. No.630/2010 submitted that in fact the appellant had also been a tenant in respect of vacant land of which inspection has been carried out by the authorities of the 3 ao630-632.sxw Corporation somewhere in 1969. He sought to produce for my perusal a letter of the year 1969 written by his client to the Ward Officer about the inspection. However, there is nothing on record to show that the Corporation authorities at any point of time have agreed to allot the appellant to use 250 sq. yard or 150 sq yard of open space on leave and licence or as a tenant, or had agreed that the appellant was ever occupying the said land. In this background, if the appellant has occupied the said land it must be as a trespasser encroacher. It is therefore cheeky of the plaintiff to claim that he should be given equivalent area of 9150.18 sq. ft in the building to be reconstructed, in the face of the agreements which show that only 5810 sq. ft of area has been allotted to be used by the plaintiff. 5 In any case, this is a matter which may be gone into at the trial. Prima facie, it could not be said that the plaintiff had made out a case of being in possession of area of 9150.18 sq. ft legally. The learned counsel for the plaintiff submitted that a Commissioner should be appointed for measurement of the land which would show that the plaintiff is in possession of land of 9150.18 sq. ft. This is not necessary. The question is, what is the area the plaintiff is legally in occupation. 6 The learned counsel for the plaintiff next submitted that the area shown in Annexure-II prepared by the Mumbai Municipal Corporation does not correspond to the area actually possessed by the other occupants. For example, he stated that one Sayyad Abdul Gani is shown to be occupying the area of 850 sq. ft of the premises as against this his actual occupation is of 100 sq. ft. It is not clear to me as to how this would help the plaintiff. The plaintiff cannot say that the remaining 4 ao630-632.sxw area of 750 sq. ft be given to him. 7 In view of this, it seems that the learned Judge of the City Civil Court has taken the path of least resistance of ordering the parties to maintain status quo, rather than meeting the issues raised. He should have seen that out of 46 tenants, 41 occupants had been relocated by the society and the builder, though the plaintiff questions this figure. He should have also seen that the entire development of the area comes to standstill on account of a doubtful claim made by the plaintiff for possession of area of 9150.18 sq.ft in the redeveloped building, without there being any factual foundation to show that such area was either leased out to the plaintiff or given on leave and licence . 8 The learned counsel for the plaintiff submitted that his client had in fact approached the society for becoming its member and to give him area which was occupied by him. He drew my attention to the letter of the society dated 13th October 2007 wherein in paragraph 2 the society had stated that members were to be provided area equivalent to the area occupied by them. He also submitted that in DCR 33(7) of the Development Control Regulations of Greater Mumbai what the occupants are entitled to area is equivalent to that occupied by them and therefore according to him, his client would have entitled to area of 9150.18 sq. ft. He pointed out that without committing as to where the plaintiff was to be relocated, the society has proceeded ahead with the development of the property and thus prejudiced him. 9 The learned counsel for the plaintiff submitted that the Corporation had already executed lease in favour of the society. Therefore, according to him disputes about 5 ao630-632.sxw the area etc. are to be resolved by the society and not by the Corporation. If that be so, it would not be appropriate for the plaintiff to seek stay of the development of the property in a civil Court. He can file appropriate proceedings before the appropriate forum rather rushing to the Civil Court. The appellant should first get himself enrolled and then apply before the appropriate forum if he had any dispute with the society. Whether a person who prays for membership of the society could be refused membership is a question to be decided by the Registrar of the Societies. The plaintiff should not have wasted time in argument about the area without considering the implications of his argument that the right to decide is vested with the society. In fact the defendants had raised this as one of the grounds of challenge to the jurisdiction of the Court. The learned counsel for the respondents states that notice as required under section 164 of the Maharashtra Co- operative Societies Act,1960 had not been given. The learned counsel for the plaintiff pointed out that such notice is given. 10 To sum up, the foundation of the plaintiff s case that he is in possession of the area of 9150.18 sq. ft is not based on any document executed by the Mumbai Municipal Corporation in his favour. It is also pointed out by the learned counsel for the society and developer that on the day on which the learned Judge passed the impugned order, the Principal Judge of the City Civil Court had rejected the plaintiff s appeal against the order of eviction passed by the Enquiry Officer of the Municipal Corporation. The learned counsel for the respondent submitted that this order has been questioned in the writ petition filed by the petitioner which is pending. 6 ao630-632.sxw 11 In view of the fact that the plaintiff has not been able to show that he is entitled to area of 9150.18 sq. ft. from the agreements executed by him, the learned Judge should not have ordered the parties to maintain status quo. He should have seen that the plaintiff has not made out prima facie case and that greater inconvenience would be caused to the others than to the plaintiffs by the order which he had passed. 12 As far as apprehensions of the plaintiff that the society has not indicated or identified which 5810 sq. ft premises plaintiff was to get, the society would obviously first ascertain those premises and then proceed further with the demolition and reconstruction. 13 In view of this impugned order is set aside. The defendant-society may not proceed further with the demolition of the plaintiff s portion without first identifying the area to be given to the plaintiff in the proposed construction, not necessarily the area which the petitioner chooses or approves, since it would be dependent on all factors, by considering rights of all the members of the society equitably. Upon filing an affidavit to the effect that area to be given to the plaintiff in the proposed building has been identified and plans are submitted to the City Civil Court, the defendants may proceed further with the project. Any amendment required to be made in the plan which may be approved by the Municipal Corporation would be first brought to the notice of the Court. Both Appeals are disposed of. 14 All the observations made herein are without prejudice to the rights of the parties to set up such 7 ao630-632.sxw case as they may wish to in the pending proceedings and as also in the Writ Petition which is pending. 15 In view of disposal of the Appeals Civil Application nos.808 of 2010 and 810 of 2010 do not survive and the same are disposed of. (R.C.CHAVAN,J.)