1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa NOTICE OF MOTION NO. 45 OF 2010 IN WRIT PETITION NO. 776 OF 2009 Ashyana Andheri Pachhim SRA C.H.S., Through Administrator Mr. A.M.Shinde .. Petitioner. v/s. The State of Maharashtra & Ors. .. Respondents. .... Mr. S. G. Surana for the Petitioner. Mr. A. S. Anand i/b. Ms. Sarita Donde for Respondent Nos. 5 to 7/Applicant in Notice of Motion No. 45 of 2010. Mr. Milind More, A.G.P. For Respondent Nos. 1 and 3. Mr. Trupti Puranik for BMC-Respondent No.2. Mr. B. V. Phadnis i/b. M/s. Utangale & Co. for Respondent No.4- S.R.A. Mr. G.G. Ketkar, 1st Assistant to Court Receiver-present. Mr. Devrat Dhankar i/b. Mr. C. N. Gole for Respondent No.8. .... CORAM : S. J. KATHAWALLA, J. DATE : FEBRUARY 9, 2010. P.C. By an order of this Court dated 29th July, 2009, this Court had inter-alia recorded as follows : “i) Respondent No.8/Developers undertakes to pay an amount of Rs.13,000/- to Respondent Nos. 5,6 and 7 per month (payable on 26th of each month starting from 26th September, 2009) 2 until the developers develop/reconstruct the tenaments under SRA Scheme on plots bearing C.T.S.Nos. 65(Part), 66 and 66/1 to 51 of village Andheri at Andheri (west), Mumbai for Ashiana CHS (proposed) and shift Respondent Nos. 5,6 and 7 to their permanent tenaments as set out in clause (iii) hereunder. The undertaking is accepted. ii) Respondent Nos. 5, 6 and 7 agree and undertake to this Court to hand over the vacant possession of their present tenaments to Respondent No.8/Developers on or before 25th September, 2009 and that they shall not apply for any extension on any ground whatsoever. The undertaking is accepted. iii) The Developers have agreed to give in all two permanent tenaments admeasuring 269 sq. ft. each in the rehabilitation building to be constructed to each of the Respondent Nos. 5, 6 and 7 (i.e. Total 6 tenaments). Out of the above six permanent rehab tenaments one tenament to each of the Respondent Nos. 5, 6 and 7 will be allotted in the rehab building in which the developer is entitled to sell the tenaments.” 2. The Respondent Nos. 5,6 and 7 committed breach of the above undertaking given to this Court because of which the developer filed a Contempt Petition being No. 100 of 2009. In the said Contempt Petition by an order of this Court dated 19th December, 2009 (Coram : Dr. D. Y. Chandrachud, J.), once again by consent of the parties the following order is passed : 3 “ On or before 28th December, 2009, Respondent Nos. 5,6 and 7 shall hand over vacant and peaceful possession of their premises to the Eighth Respondent. In the event, Respondent Nos. 5,6 and 7 fail to do so , the Court Receiver shall take physical possession of the premises in the occupation of Respondent Nos. 5,6 and 7 and hand over the same to the Eighth Respondent” 3. The Respondent Nos. 5, 6 and 7 once again failed to hand over the possession of the premises to the Eighth Respondent on or before 28th December, 2009 and thereby once again committed breach of the order passed by this Court. The Court Receiver thereafter sought to take physical possession from Respondent Nos. 5, 6 and 7 after fixing an appointment. However, Respondent Nos. 5, 6 and 7 in breach of the order dated 19th December, 2009 refused to hand over the vacant possession of their respective tenaments to the Court Receiver on the ground that the children are schooling and that they require big an spacious room for them. 4. On 28th January, 2010 the Respondent Nos. 5,6 and 7 moved a Review Petition being No. 1 of 2010 before this Court (Coram : Dr. D. Y. Chandrachud, J.) seeking review of the order passed by the Court dated 19th December, 2009. In the said 4 review petition the Respondent Nos. 5,6 and 7 inter-alia complained that the Respondent No. 8 is not executing agreements pertaining to the six tenaments, and since an Administrator of the Society is appointed, they are not sure as to who will enter into the said Agreements with the Respondent Nos. 5, 6 and 7. Extension to vacate the said premises was also sought by the Respondent Nos. 5, 6 and 7 upto 7th April, 2010. The said Review Petition was dismissed by the following order : " The order dated 19th December, 2009 was passed by the Court with the consent of the parties. The Review Petition is manifestly, misconceived. The Review Petition is, hence, dismissed." 5. The Court Receiver thereafter submitted a report before this Court on 29th January, 2010 seeking following directions "(a) Whether, the Court Receiver should take forcible possession of the suit premises in the occupation of Respondent Nos. 5, 6 and 7, situated at Meer Husain Tangewala Chawl, behind Andheri Market, Andheri (W), Mumbai from the Respondent Nos. 5, 6 and 7 or from any other persons found in possession, by breaking open lock/s with help of police." 5 6. This Court after recording some of the aforesaid facts by its order dated 29th January, 2010 recorded that it is established beyond any doubt that the Respondent Nos. 5,6 and 7 have repeatedly committed willful breach of the orders of this Court and such conduct on the part of the Respondent Nos. 5,6 and 7 cannot be tolerated. The Court Receiver's Report was therefore allowed. This Court is informed that the Court Receiver has fixed 16th February, 2010 for taking possession of the tenaments which are in the occupation of the Respondent Nos. 5,6 and 7. 7. Respondent Nos. 5,6 and 7 have now filed the present Notice of Motion seeking identical reliefs sought by them in the review petition which is already dismissed on the ground that the same is manifestly misconceived. The present Notice of Motion is nothing but one more attempt on the part of the Respondent Nos. 5,6 and 7 to avoid complying with the orders passed by this Court. The conduct of Respondent Nos. 5, 6 and 7 is not only absolutely unfair to all the other tenants who have handed over their tenaments for redevelopment several months back, but also to the developer who is paying lacs of rupees per month to the tenants as 6 monthly compensation towards alternate accommodation. In any event Respondent No.8 states that the necessary Agreements will be executed by the Respondent No. 8 within a period of six months from today. The statement is accepted. However, in the meantime the Court Receiver will proceed to take the possession of the premises on 16th February, 2010. 8. In the above facts and circumstances, the Notice of Motion is dismissed. [ S. J. KATHAWALLA, J. ]