1 wp-9504.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9504 OF 2011 Shri Anil Bapu Gawas and ors. : Petitioners versus M/s. Rajesh Builders and Associates and ors. : Respondents. Mr.Joshi C S for the Petitioners. Mr. Sanjay Anabhavane for the Respondent Nos. 1 to 3. Mr. V Y Sanglikar for Respondent No.5. Ms. M S Salekar i/by Mr. N R Bubna for the Respondent No.6. CORAM : R M SAVANT, J. DATE : 14th December 2011 P.C. 1 The above Petition takes exception to the order dated 22/8/2011 passed by the learned 5th Joint Judicial Magistrate, First Class, i.e. Civil Judge, Junior Division, Thane by which order the Application-Exhibit 38 filed by the Plaintiffs for revocation of sanctioned plan came to be rejected. 2 The Petitioners herein are the original Plaintiffs who have filed a suit for declaration and specific performance in respect of certain lands at Mira Road, Dist. Thane. The said suit properties bear Survey No.115, Hissa Nos. 4, 5, 10, 11, 14, 20 and Survey No.116, Hissa Nos. 2 and 3 at Mahajan Wadi, Penkar Pada at Mira Road, District Thane. It is the case of the Plaintiffs that they have entered into a Package Deal Agreement dated 20/07/1991 with the Respondent Nos.1 to 3 herein who are the Defendant Nos.1 to 3 in terms of which the area of 8480 sq.mtrs out of total area of 1,73,711.19 sq.ft. and in 2 wp-9504.11.sxw terms of clause (v) the total available FSI of 70,3000 sq.ft is purportedly made available and earmarked for the purchasers. The said Package Deal Agreement was entered into between Respondent No.1 herein and the Promoters of the proposed society known as Bhavishya Yog Co-operative Housing Society Ltd. In so far as the ownership of the land is concerned, the said Agreement in its preface mentioned to the following effect :- “AND WHEREAS the owners are owners and/or otherwise well and sufficient entitled to a property lying, being and situated at Penkar Pada, Village Mauje Mira, Taluka and District Thane” In the said suit, as initially filed, the substantive relief sought was that the Defendant Nos.1 to 3 should fulfill their obligations under the said Package Deal Agreement. The interim relief sought was to restrain the Defendant Nos.1 to 3 from creating any third party interest in respect of the area of 70000 sq.ft. area earmarked for the 160 members and 18000 sq. ft area earmarked as pre- emetory right of the said Society in terms of Para 18 of the plaint. It appears that against an order passed in the said Suit holding that the said suit was not maintainable, an Appeal came to be filed in which Appeal an order of status quo came to be passed by the District Court, as the trial Court had not granted any interim order in view of the fact that the said suit was not maintainable. 3 The Respondent No.5 herein has entered into a Development Agreement with the original owners of the said property one Shri.Kalyanji Lalji, Shri Avinash Bhoir and others, and Shri Bharat Govind Patil and ors in respect 3 wp-9504.11.sxw of the suit property. In terms of the said agreement, the Defendant No.5 claimed to be put in possession. The Defendant No.5 to develop the said property, applied to the Mira Bhayandar Municipal Corporation for sanction of the plans. The Mira Bhayandar Municipal Corporation in pursuance to the said application has granted Commencement Certificate on 7/6/2010 to the Defendant No.5. It is in accord with the said Commencement Certificate that the Defendant No.5 has started development of the property in question. 4 In view of the right being created in favour of the Defendant No.5, the Plaintiffs applied for amendment of the plaint so as to array the Defendant No.5 as a party Defendant to the said suit, and incorporate the averments and consequential prayers in the plaint. The plaint was accordingly amended, and in terms of the amended plaint, prayer clauses (a-1), (a-2) and (b-1) have been added. In so far as prayer clause (a-1) is concerned, by the said prayer a declaration is sought that the development activity by Jayram Devidas and Anil Kakad i.e. the Defendant Nos.4 and 5 in the suit property is void, ab-initio. In so far as prayer clause (a-2) is concerned, a relief is sought that the said Jayram Devidas and Anil Kakad to take due steps to fulfill the obligations cast on Defendant Nos.1 to 3 as per Clause No.16 of the Package Deal Agreement dated 20/7/1991 towards Plaintiffs. And in terms of prayer clause (b-1), an interim relief has been incorporated to the effect that the Municipal Commissioner , Mira Bhayandar Corporation to revoke the plan sanctioned as per the Commencement Certificate dated 7/6/2010. 4 wp-9504.11.sxw 5 After carrying out the said amendments, the Plaintiffs moved the instant Application-Exhibit 38 for revocation of the plan sanctioned in respect of which Commencement Certificate dated 7/6/2010 has been issued. The sum and substance of the case of the Plaintiffs in the said Application is that they have right qua the said property, and therefore, the said property is developed by the Defendant Nos.4 and 5, their interest would be jeopardized. 6 The said Application was considered by the trial Court and for the reasons mentioned in the impugned order the said Application has been rejected. The said Application, as can be seen from the impugned order, has been rejected inter alia on the ground that in terms of Section 149 of the MRTP Act, the Civil Courts qua the relief against the sanctioned plan would not have jurisdiction. The second ground on which the said relief has been rejected is that the mandatory order in the nature sought by the Plaintiffs could not be granted at the said interim stage. 7 The learned counsel for the Petitioners/Plaintiffs would contend that since there is a fraud played by the Defendant Nos.1 to 3 upon the Plaintiffs, notwithstanding the bar of Section 149 of the MRTP Act, the Civil Courts would have jurisdiction as the plan sanctioned by the Corporation can be said to be vitiated by the said fraud. The learned counsel for the Petitioners/Plaintiffs sought to rely upon certain clauses of the Commencement 5 wp-9504.11.sxw Certificate, and especially clause 4 thereof in support of his submission that if the sanction has been obtained by mis-representation, the Corporation has the power to revoke the same. The learned counsel would contend that since the Plaintiffs have paid an amount of Rs.Forty Six lacs for the property in question, they have right in respect of the said property. 8 Per contra, it is submitted by Shri Sanglikar, the learned counsel appearing on behalf of the Respondent No.5, that the Defendant No.5 has entered into the Development Agreement with the original Owners pursuant to which the plan was got sanctioned from the Municipal Corporation, and now there is even a conveyance in favour of the Defendant No.5 The learned counsel for the Respondent No.5 would contend that if the Petitioners/Plaintiffs have any grievance against the Defendant Nos.1 to 3, they would have to agitate their grievance against the Defendants in the suit filed by them. The learned counsel would contend that in so far as revocation of the plan is concerned, there is not even challenge to the plan sanctioned by the Municipal Corporation in the said suit, and therefore, the interim order seeking revocation of the plan when there is no substantive prayer in the suit to that effect, would not lie. 9 Having heard the learned counsel for the parties and having bestowed by anxious consideration to the submissions made by them, in my view, there is no merit in the above Petition. The facts narrated herein above 6 wp-9504.11.sxw would disclose that the Petitioners/Plaintiffs have filed a suit for specific performance of the Package Deal Agreement dated 20/7/1991 against the Defendant Nos. 1 to 3. The Defendant No.5 has ventured to develop the said property on the basis of the Agreement that he has entered into with the original owners of the said property on the basis of which he has applied for permission to the Municipal Corporation. It is pertinent to note that the Defendant No.5 is not a party to the agreement between the Plaintiffs and the Defendant Nos. 1 to 3. The order of status quo passed in the said Appeal would therefore not bind him as at that time the Defendant No.5 was not the party to the suit. It is further required to be noted that the said Package Deal Agreement, in terms of the preface, which has been reproduced herein above, contains a statement on behalf of the persons who claim to be the owners that they are the owners and/or otherwise well and sufficiently entitled to a property lying. Therefore, the question is, as to whether the persons with whom the Petitioners/Plaintiffs had entered into the agreement had title to the property. If the Defendant Nos. 1 to 3 have mis-represented to the Plaintiffs and have entered into an agreement, it is for the Plaintiffs to take proper recourse in law against the said Defendant Nos.1 to 3. However, in so far as the Defendant No.5 is concerned, prima facie the record indicates that the said Defendant NO.5 had entered into an agreement with the original owners on the basis of which he had applied for development of the property, and has got the plan sanctioned from the Municipal Corporation. Since the Plaintiffs have already filed a suit for specific performance against the Defendant Nos.1 to 3, it 7 wp-9504.11.sxw is for the Plaintiffs to prosecute the said suit. In so far as Defendant No.5 is concerned, significantly and very curiously the Plaintiffs now want the Defendant Nos.4 and 5 to fulfill the alleged obligations of the Defendant Nos.1 to 3 when there is no privity of contract between the Plaintiffs and the Defendant Nos.4 and 5. 10 In so far as maintainability of the suit qua a challenge to the sanction granted under the MRTP Act is concerned, the position in law is well settled, in so far as the jurisdiction of the Civil Court is concerned. A reference could be made to the judgment of a learned Single Judge of this Court reported in 2005(3) Bom.C.R.300 in the matter of Mohan N Bhawe v/s. Municipal Corporation of Greater Bombay. It is held by the learned Single Judge of this Court that a suit is not maintainable questioning an order passed under the MRTP Act. In the instant case the Commencement Certificate would tantamount to an order passed under the MRTP Act and the bar under Section 149 resultantly would come into play. The maintainability of the suit is therefore questionable. 11 There is another aspect to the matter inasmuch as the Plaintiffs have sought revocation of the plan without there being any substantive relief as regards challenge to the plan in the Suit. The trial Court was, therefore, right in holding that looking to the nature of the reliefs sought by way of the said Application-Exhibit 38, the same cannot be granted at the interim stage. 8 wp-9504.11.sxw 12 Having considered the impugned order and the reasons mentioned therein, and in the light of what has been stated herein above, in my view, no case for interdiction in the Writ Jurisdiction of this Court under Article 227 of the Constitution of India is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]