:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1031 OF 2008 Panorama Premises Co-operative Society Limited ..Petitioner Vs. Hemant Moolsingh & Ors. ..Respondents Mr. N.V. Walavalkar, Senior Advocate with Mr. V.R. Walavalkar and Mr. P. Gokul Gandhi i/by M/s. Akshar Laws for petitioner. Mr. T.N. Subramaniyam with Smt. Snehal Shah i/by M/s. S.B. Kotak and Co. for respondent no.1. Ms. Ranjana Parikh for respondent no.2. Mr. S.G. Aney, Senior Advocate with Mr. S.U. Kamdar i/by M/s. Purnanand & Co. for respondent no.6. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : April 11, 2008. : April 11, 2008. : April 11, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Walavalkar the learned Senior Counsel i/by M/s. Akshar Laws for petitioner-society. Mr. Subraminyam appears for respondent no.1 and Ms. Parikh appears for respondent no.2, whereas Mr.Any the learned Senior Advocate with Mr. Kamdar appears for respondent no.6. 2. This petition filed under Article 227 of the Constitution arises from the order passed by the Small :2: Causes Court at Mumbai on 30/8/2006 thereby rejecting the application at Exh.5 for temporary injunction filed in RAE Suit No. 576 of 2005 and duly confirmed by the Appellate Bench by dismissing Appeal No. 298 of 2006 as per the Judgment and Order dated 16/11/2006. 3. The petitioner-society has filed RAE Suit No. 576 of 2005 and prayed for a decree directing the defendant nos.1 to 4 as well as added defendant to hand over quiet, vacant and peaceful possession of the suit premises being Plot of land or ground together with structures standing thereon and known as Tulsi Bhuvan situate at Santacruz (West), Mumbai - 400 054 admeasuring 1500.96 sq.mtrs. which is a part of the larger area known as Tulsi Bhuvan situated at Santacruz (West). The plaintiff-society has also prayed for the permanent injunction against the defendants and their servants, agents etc. from demolishing the existing structures on the suit premises, from carrying out any excavation on the suit plot and/or from trying to put up any structure thereupon as well as submitting plans for development and construction in respect of the suit premises by :3: consumption of T.D.R. or additional F.S.I. 4. The piece and parcel of land or ground admeasuring 3380 sq.yrds. which is equivalent to 2516.07 sq.mtrs. with the building and structure thereon known as Tulsi Bhuvan lying and being at Santacruz (W) was purchased by M/s. Lokhandwala Construction from defendant no.1 as per the agreement dated 15/11/1978 at a price of Rs.22,24,250/- and the said price included the price of the FSI received by the builder for the area of the property which had gone away in the set back. Clause 13(d) of the said agreement stated as under:- "(d) The purchasers shall not without the written consent of the Vendors use or consume any floating or additional or increased FSI that may be sanctioned by the concerned authorities. The right to use any additional or increased FSI shall always belong to be vested in and the Vendors only. The Vendors shall give the purchasers first option to purchase and/or untilized any additional or floating or increased FSI on such terms as may :4: be agreed. If the purchasers are unwilling to use such FSI as provided herein the Vendors shall be entitled to sue such FSI on the property to be leased out to Vendors or any other manner as the Vendors may deem fit and proper, however, the Vendors shall not use the said FSI or upon the structure that may be put up by the purchasers." . Admittedly, the purchasers i.e. M/ Lokhandwala Construction put up the society building ground plus seven storeyed and utilised the entire available FSI of about 20,500 sq.mtrs. 5. On or about 26/2/1979 an agreement of lease was signed between the petitioner-society and the defendant nos.1 to 4 by referring to the agreement for sale dated 15/11/1978 between M/s. Lokhandwala Construction and the defendant no.1 and this agreement had its origin in the agreement for sale with M/s. Lokhandwala Construction. From the entire area admeasuring 2516.07 sq.mtrs. was separately marked out and consisting of 2-3 structures which were in occupation of the defendant nos.1 to 4 and the said :5: area along with structures was given on lease to the said defendants by this lease agreement for a period of 999 years. Clause 4 and 6 of the lease agreement created some rights in favour of the lessees. It would be, therefore, appropriate to reproduce the said two clauses as under:- "4. AND IT IS HEREBY AGREED AND DECLARED that for the purpose of enabling the lessees to use and enjoy the Demised Premises fully and effectually throughout the term hereby granted the lessees shall have the following rights. (a) To have the right of passage for the purpose of ingress to and engress from the Demised Premises over the Land remaining upon and unbolt upon; (b) To park motor cars and other vehicles of the Lessees, their guests and invitees and their tenants; (c) To construct any additional floor or floors on the Demised Premises if at any time :6: hereafter any further construction in addition to the building proposed to be constructed by the Lessor in accordance with the plans sanctioned by the Municipal corporation of Greater Bombay becomes permissible and for that purpose to utilize the floor space index in respect of the Tulsi Bhuvan property described in the schedule "A" hereunder, it being the intention of the parties that the lessor shall have no right to use and utilize any further floor space Index beyond the floor space index utilised under the building plans sanctioned by the Bombay Municipal Corporation in respect of the multistorey building proposed to be constructed by the Lessor and that the Lessor shall not construct any building or structure on the said Tulsi Bhuvan property described in Schedule "A" hereunder written excluding the portion, thereof described in the Schedule "B" hereunder written either as addition to or otherwise to the proposed multistorey building sanctioned by the Bombay Municipal Corporation. :7: (d) To keep the water tanks and the pump installation installed by the Lessees and shown on the plan hereto annexed and marked "B". (e) To keep the cattle’s and pets on Demised Premises and to maintain the same. 6. PROVIDED ALWAYS AND IT IS HEREBY AGREED by and between the parties hereto as follows:- (a) The Lessees shall be at liberty without the consent in writing of the Lessor to transfer charge, assign, underlet or part with the Demised Premises or any part thereof for the residue of the term hereby created. (b) The Lessees shall also be at liberty to relet or sub-let without the consent of the Lessor, any part or portion of the Demised Premises building or structures to be erected on the Demised Premises. :8: 6. The petitioner-society alleged that the defendants had stopped occupying the structures standing on the area leased to them and, in fact, they had disappeared from the said area for about four years. It was on this count that the suit was filed for eviction before the Small Causes Court. It was then made known that the defendant nos.1 to 4 had entered into an agreement with defendant no.5 on 22/2/2005 and, therefore, the suit was amended so as to implead defendant no.5. The petitioner-society claims that by the said agreement, the defendant nos.1 to 4 have sold the leased premises (open plot of 1500 sq.mtrs.) with the standing structures which was purportedly the property of the petitioner-society and the defendant nos.1 to 4 received a consideration of Rs.12,50,00,000/-. As per the society this agreement was illegal, invalid and void ab initio and, therefore, it is entitled for a decree of eviction. 7. An application at Exh.5 was filed for temporary injunction, initially seeking restraining orders against the defendants not to demolish the old structures standing on the suit plot and subsequently :9: when it was made known that the structures were demolished, the petitioner - society prayed for stay to the building construction and prayed for restraining orders against the Corporation not to sanction the development plan. The learned Judge of the trial court considered the terms of the agreement for lease and more particularly clauses 4 and 6, as reproduced hereinabove, and held that there was no prima facie case made out by the petitioner-society and consequently, the injunction application was rejected. 8. Petitioner-society had filed RAE Suit No. 576 of 2005 sometimes in July 2005 in the Small Causes Court. It also approached the City Civil Court by filing L.C. Suit No. 5346 of 2005 filed on or about 2/12/2005. The petitioner also approached this court on the Original Side by filing Writ Petition No. 1228 of 2006 as well as Writ Petition No. 1581 of 2007 (filed on 26/7/2007) as well as Suit No. 492 of 2007 filed on or about 9/10/2007. Writ Petition No. 1228 of 2006 was dismissed as withdrawn with liberty to file a suit, as per the order dated 28/4/2006. Writ Petition No. 1581 of 2007 was also allowed to be :10: withdrawn but with costs. In Notice of Motion No. 693 of 2007 filed in Suit No. 492 of 2007, on the Original Side of this court, by order dated 2/4/2007 this court refused to grant any ad-interim relief by referring to the order passed by the Small Causes Court as well as confirmed the order passed by the Appellate Bench of the said court and which orders have been impugned in this petition and also the orders passed by this court in Writ Petition Nos. 1228 of 2006 and 1581 of 2007, as referred to hereinabove. It would be appropriate to reproduce paras 5 and 6 of the said order:- "5. Argument of the plaintiff that the Small Causes Court has not adjudicated the core issues that the defendants have no right to demolish the bungalow or to develop the property does not commend to me. The Small Causes Court has clearly adverted to all the relevant documents and opined that the defendants have right to proceed with the development activities. That finding has been affirmed by the appellate Court for reasons :11: separately recorded. That view is allowed to attain finality. The parties would be bound by those findings. It makes no difference that the present suit is before this Court, which is a superior Court. 6. In the circumstances, taking over all view of the matter, it is not a case for considering grant of ad interim relief. Accordingly, prayer for ad interim is refused." 9. It is evident that this petition has been filed challenging the order passed by the Small Causes Court below Exh.5 as well as the order passed by the Appellate Court confirming the said order, in view of the observations made by this court and as quoted hereinabove in para 5 of the order dated 2/4/2007. The learned counsel for the respondents, therefore, urged that having regards to the orders passed by this court from time to time either in the Writ Petitions or in the Civil Suit, there is no case to entertain the application at Exh.5 filed by the petitioner-society in the Tenancy Rent Act suit. :12: There can be no second opinion on the arguments advanced to this extent by the learned counsel for the respondents. However, the agreement between the defendant no.1 and M/s. Lokhandwala Construction signed on 15/11/1978 and the lease agreement dated 26/2/1979 signed between the petitioner-society and the original owners i.e. defendant nos.1 to 4, it is clear that on the date of signing of the lease agreement the owners were put in possession of a plot admeasuring about 1500 sq.mtrs. with the structures standing thereon and there was no additional FSI available for any construction at that time because the total FSI available of 20,500 sq.ft. was used by M/s. Lokhandwala Construction for putting up the society’s building. The owners, of course, were entitled to occupy the three structures as lessees standing on the said demarcated plot of 1500 sq.mtrs. The lease agreement and more particularly Clauses 4 and 6 deal with some future rights in favour of the lessees and that was in respect of the additional FSI that could be available in future on account of change in FSI Rules (DC Rules). The relationship between the plaintiff-society and the defendant nos.1 to 4 as lessor and lessees is not disputed on account of the :13: lease agreement dated 26/2/1979 and in respect of the area admeasuring about 1500 sq.mtrs. It is also admitted that the plaintiffs are not available, as of now, on the said plot and all the structures standing thereon and which are supposed to be in their possession, have been demolished and a new multistorey building is coming up on the said plot at the behest of defendant no.5. The relief prayed for by the plaintiff-society in its suit under the Rent Act revolves around the purchase agreement dated 15/11/1978, the lease agreement dated 26/2/1979 and the agreement between defendant nos.1 to 4 and 5 and registered on 22/2/2005. This agreement between defendant nos.2 to 4 and 5 is claimed to be a development agreement by the defendants whereas the society claims that it is an agreement to sell the suit plot and, in fact, has been so sold allegedly. It is for the trial court to decide the status of this agreement on the basis of the evidence that may be led before it and if the trial court comes to the conclusion that it is an agreement to sell, the trial court will have to consider granting the appropriate reliefs to the plaintiff-society as per law. :14: 10. Mr. Walavalkar the learned Senior Counsel vehemently argued before me that on the face of the seriousness of the litigation before the Small Causes Court, it would be appropriate that no third party interests are allowed to be created in respect of the multistorey building which is under construction so that the interest of the future buyers are protected while protecting the interest of the petitioner-society as well. At the same time Mr.Walavalkar admitted that the construction in progress is on the basis of the approval granted by the Municipal Corporation and the plans sanctioned by it. The agreement dated 22/2/2005 prima facie speaks that the defendant no.5 has invested about Rs.12,50,00,000/- on the land itself and there may be further investment for the construction. Having regards to these aspects as well as the orders passed by this court and as referred to hereinabove, the different proceedings between the same parties, I do not deem it appropriate to grant the prayer of the plaintiff-society to issue a blanket injunction restraining the defendant no.5 from creating third party interests. However, it would be imperative that the future buyers are put on alarm and they are made :15: aware of the pending suit and the rights and contentions of the respective parties waiting adjudication in the same suit before the Small Causes Court so that the execution of the decree passed would not cause prejudice to the future investors and such transfers in favour of the third party of the commercial tenements in the proposed building are also made subject to the final outcome in the pending suit. 11. Hence, it is directed as under:- (a) The action of defendant no.5 or any of its successor in creating third party interests in the multistorey building that is coming upon the suit premises or any part thereof shall be subject to the final out come in RAE Suit No. 576 of 2005. (b) The third parties and each one of them individually, who are proposing to invest or create any interest in respect of any shop/tenement in the proposed multistorey building on the suit plot, shall be informed :16: by the defendant no.5 about the pendency of the suit i.e. RAE Suit No. 576 of 2005 and this order and the agreement or any other conveyance to be signed between defendant no.5 or any of its representative, agents and such third parties shall have such a clause and a copy of this order shall form part of such an agreement. (c) The names of all such buyers/transferees shall be placed before the Small Causes Court in RAE Suit No. 576 of 2005 from time to time by defendant no.5. (d) Leave to amend the suit. (e) The trial of the suit is expedited. . The petition is disposed off in terms of the above directions. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)