IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1692 of 2008. NOTICE OF MOTION NO.1692 of 2008. NOTICE OF MOTION NO.1692 of 2008. IN IN IN SUIT NO.2268 of 2006. SUIT NO.2268 of 2006. SUIT NO.2268 of 2006. Bharti K. Rathod ..Plaintiff versus Naresh K. Rathod ..Defendant And Prabhadevi SRA Co-op. Housing Society Ltd. ..Applicants Mr.Omprakash Pandey i/b. M/s. Pandey & Co. for the Plaintiffs None for the Defendant Mr.Birendra Saraf i/b. Shiralkar & Co. for the Applicants CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 18th Oct., 2008. DATED : 18th Oct., 2008. DATED : 18th Oct., 2008. P.C. 1. This notice of motion was taken out by the applicant for being joined as party defendant in the suit, for vacating the Order dated 23.5.2008 r/w. Order dated 11.4.2008 passed in Motion No.2617 of 2006 in the aforesaid suit and for handing over the possession of the suit property to the applicants. This motion was partly heard with reference to prayer clause (a) and by Order dated 30.9.2008 the applicants were ordered to be joined as defendant No.2 on or before 14.10.2008 and that -2- the motion so far as prayer clause (b) and (c) was kept pending. 2. The Court is informed that the plaintiff herein had challenged the said Order dated 30.9.2008 by filing an appeal. However, that appeal came to be withdrawn. This fact is not disputed by learned advocate Mr.Pandey appearing on behalf of the plaintiff. Hence the hearing of the motion so far as prayer clauses (b) and (c) was required to be taken. On record I find full fledged affidavit in reply filed by the plaintiff dated 13.8.2008 and rejoinder thereto. Today, learned Advocate Mr. Saraf has filed additional affidavit enclosing therein two documents which ought to have been placed along with the rejoinder. The said affidavit is taken on record. 3. The plaintiff herein claims to be the son of one Kalidas R. Rathod, who died on 4.1.1987 and according to the plaintiff defendant No.1 is the son and Original defendant No.2 is the widow of said Kalidas Rathod. The plaintiff instituted this suit concerning the suit property admeasuring about 5000 sq. ft. forming part of the final plot -3- No.1087 Prabhadevi, Mumbai. The plaintiff prayed that the plaintiff has 1/3rd share in the said area admeasuring 5000 sq. ft. on account of right in the estate of the father which was owned by his father, being the suit property. Keeping inview, the principal prayer other prayers came to be asked in this suit. Record shows that the plaintiff herein took out Notice of Motion No.2617 of 2006 for diverse reliefs keeping in view the prayers in the suit. One prayer was for appointment of Receiver, High Court, Bombay. The record shows that the plaintiff and the defendant in the suit tendered consent terms in the said motion and clause 3 of the said consent terms was about appointment of Receiver, High Court, Bombay and further the Receiver to take symbolic possession of the suit property. The plaintiff and the defendant on 25.3.2008 obtained orders in terms of consent terms and as a result of it Receiver, High Court, Bombay came to be appointed. It is noticed that the plaintiffs and the defendants realised that the Order dated 25.3.2008 had the effect of disposing of the suit though it was not the intention of the parties. The parties wanted to obtain orders on the basis of the consent terms in the motion only. -4- Hence, parties appeared before the Court and on 11.4.2008 moved the court by joint precipe for modification of the Order dated 25.3.2008. On 11.4.2008 the Court passed a clarificatory order that the Order dated 25.3.2008 relates the motion pending the suit. The Court is informed that as a result of the two orders dated 25.3.2008 and 11.4.2008, the Receiver, High Court, Bombay, came to be appointed and the said Receiver took formal possession of the suit property and that is how the two orders were complied with. 4. When this fact of appointment of Receiver and the related aspects came to the knowledge of the present applicants they were aggrieved as they could not take the benefit of the SRA Scheme which was granted in their favour and hence they moved this Court for being joined as party defendants as also for vacating the aforesaid two orders. 5. Learned Advocate Mr. Saraf, appearing on behalf of the applicants drew my attention to the following points: a) By letter of intent dated 7.7.2006 -5- (Revised) the applicants are authorised to develop the final plot No.1087 under what is commonly called as SRA Scheme. b) The Annexure II statement has been prepared by the Addl. Collector, Bombay City with regard to the final plot No.1087 and 1088 showing the names of the occupants and other details. c) Way back, in the year 1973 acquisition proceeding under Land Acquisition Act, came to be initiated by the Government of Maharashtra in respect of final plot No.1087 and that the suit property forms part and parcel of the said final plot No.1087. Consequently notification came to be issued thereafter and ultimately by award dated 1.6.1979 Special Land Acquisition Officer,(III) Bombay and Bombay Suburban District, passed the land acquisition award acquiring the final plot No.1087. d) Father of the present plaintiff and -6- defendant participated in the said land acquisition proceeding and in the award it has been directed that the sum of Rs.610 should be paid to the father of the plaintiff. e) Possession Receipt is issued by the appropriate Government Authorities in regard to entire final plot No.1087. 6. The aforesaid developments would go to show that the final plot No.1087 vested in the appropriate Government way back in the year 1979 or thereabout. The notifications issued under the Land Acquisition Act do go to show that final plot No.1087 was acquired for the postal department of Government of India. 7. I have heard learned advocate Mr. Saraf in support of the Motion and Mr. Pandey opposing the motion. None appeared for the defendant Nos.1. The arguments advanced by learned Advocate Mr. Saraf that on account of letter of intent dated 7.7.2006 the applicants herein have certain rights in respect of final plot No.1087 as per the SRA -7- Scheme is required to be accepted. It was argued by learned Advocate Mr.Saraf that if the final plot No.1087 has vested in the appropriate Government then ownership in respect of the suit property in regard to which the suit has been filed could not have been continued with father of the present plaintiff, much less the present plaintiff. It was submitted by learned Advocate Mr. Saraf that the institution of the present suit by the plaintiff was done for the various purposes and that seeking an Order of appointment of Court Receiver by consent was improper and Receiver in respect of the suit property could not have been granted as the property had already vested in an appropriate authority. According to Mr. Saraf the claim of the plaintiff in regard to the suit property as owners becomes untenable once the property has vested in the appropriate Government. Mr. Saraf submitted, it is in these circumstances, the appointment of Court Receiver and that too by consent was improper and that the said appointment ought to be revoked by this Court. Mr. Saraf submits that on account of securing the Order of appointment of the Court Receiver in the above circumstances rights of the present applicants are -8- prejudiced, who are otherwise authorised to deal with final plot No.1087 which includes the suit property in accordance with the SRA Scheme. 8. Learned Advocate Mr. Pandey tried to justify the appointment of the Court Receiver contending that the suit filed by the plaintiff has nothing to do with the rights of the present applicants and the present applicants have no authority to deal with the final plot No.1087 and therefore the motion is required to be dismissed. He submitted that the present applicants had no authority to deal with the final plot No.1087 and therefore taking out of the present Notice of Motion was not proper and the same is required to be dismissed. He submitted that the present applicants intend to dispossess the plaintiffs and/or other persons who are squalting on the suit property in a high handed manner. Mr. Pandey submitted that there was no fraud on the part of the plaintiff or defendant and that the plaintiff and defendant wanted to protect their interest pending the suit and that is how the appointment of Receiver was sought. Mr.Pandey pressed for dismissal of the motion. -9- 9. After having considered the rival contentions and the record, relief is required to be granted to the applicants so as to vacate the Order dated 25.3.2008 r/w. Order dated 11.4.2008 passed in Motion No.2617 of 2006. Naturally, consequential reliefs will have to be granted. Reasons are as under: 10. The plaintiffs instituted the present suit claiming ignorance of the various developments which took place. However, the fact that the plaintiff was aware of the notifications under the Land Acquisition Act is clear on the basis of the affidavit in reply filed by him. It is just difficult to accept that the plaintiff was not knowing that his father participated in the land acquisition proceeding and certain amount was ordered to be paid to his father. In any case, as of today, it is clear that the final plot No.1087 has vested in the appropriate Government on account of its acquisition by following due process. Nothing was pointed out by learned Advocate Mr. Pandey that the said Order of award under the Land Acquisition Act has been challenged by the -10- plaintiff or the defendant. The possession receipt is also not challenged. All this will go to show that the land Acquisition proceedings successfully came to an end and that the land vested in the appropriate Government. If this be so, it is just difficult to accept the claim put up by the plaintiff with regard to the suit property which forms part and parcel of the final plot No.1087. It is in these circumstances and manner in which the applicant took out the Notice of Motion for diverse reliefs and including the appointment of Court Receiver becomes untenable. The plaintiff and the defendant approached the Court by way of consent terms and got Receiver appointed in respect of the suit property forming part of final plot No.1087. This effort made by the plaintiff and defendant clearly goes to show that the plaintiff and defendant wanted to act contrary to earlier developments in respect of the suit property which forms the part of the final plot No.1087 which vested in the State Government. In my view, the plaintiff and defendant acted in a malafide manner and obtained the impugned Orders dated 25.3.2008 and 11.4.2008. It is clear that the said orders were obtained solely to see that the rightful -11- claimants are prevented from exercising their rights including the present applicants who have now been granted letter of intent in terms of letter dated 7.7.2006. At this stage, it is pertinent to mention that this letter dated 7.7.2006 was issued as revised letter of intent in regard to the final plot No.1087 and the original letter of intent was issued in the year 2004. If this is the position, institution of the suit by the plaintiff on 24.5.2006 assumes importance and it is clear that the plaintiff knowing fully well that the plaintiff has no right in respect of the suit property whatsoever, instituted the present suit solely to create impediments in the enjoyment of rights by the rightful claimants including the present applicants in whose favour ultimately revised letter of intent came to be issued on 7.7.2006. In my view, the intention of the plaintiff and the defendant was clear while obtaining the Order dated 25.3.2008 r/w. 11.4.2008, namely to see that the original claimants in respect of the entire final plot No.1087 are deprived of their rights. The aforesaid Order was obtained after rights of the present applicants were spelt out in terms of -12- letter of intent dated 7.7.2006 and that substantial construction of seven floors had been put up by the applicants on the portion of final plot No.1087 and that the work of the SRA Scheme was in full progress. 10. In the aforesaid circumstances, I am inclined to observe that the two orders dated 25.3.2008 and 11.4.2008 cannot stand and that the same are required to be vacated. It is in these circumstances, I am inclined to pass an Order in that behalf. Once that is done, the appointment of Court Receiver in respect of the suit property forming part of final plot No.1087 will also have to be set aside and consequently further actions done by the Court Receiver in terms of the aforesaid Orders will also have to be revoked. 11. For the reasons mentioned aforesaid, I pass the following Order. ORDER 1. The Order dated 25.3.2008 r/w. Order dated 11.4.2008 passed in Notice of Motion No.2617 of 2007 stand vacated. The appointment of Receiver, -13- High Court, Bombay in regard to the suit property which forms part and parcel of final plot No.1087, Prabhadevi, Mumbai stands revoked. 2. Receiver, High Court, Bombay is discharged without passing any accounts. The act on the part of the Receiver, High Court, Bombay in taking formal possession of the suit property is also revoked. There shall be no Order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)