1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION (STAMP) NO. 5037 OF 2008 CIVIL APPLICATION (STAMP) NO. 5037 OF 2008 CIVIL APPLICATION (STAMP) NO. 5037 OF 2008 IN APPEAL FROM ORDER (STAMP) NO. 5036 OF 2008 IN NOTICE OF MOTION NO. OF 2008 IN BCCC SUIT NO. 4226 OF 2007 Nathuram M. Wavekar & Ors. ... Appellants (Org. Plaintifs) Versus M/s. Saumya Leasing Ltd. & Ors. ... Respondents (Org. Defendants) Mr. Birendra Saraf, Advocate, a/w Mr. M.R.Gaonkar & Mr. D.M.Gaonkar, advocates for the Appellants. Mr.C.U.Singh, Senior Counsel i/b. M/s. Sanjay Udeshi & Co. for respoondents 1 & 2. Ms. Soma Singh for respondent NO.3. Ms. Geeta Joglekar, Advocate, for respondent No.4-BMC. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 29th February,2008. DATE: 29th February,2008. DATE: 29th February,2008. 2 P.C. P.C. P.C. 1. Civil Application & A.O. be registered. 2. The appellants, who are the members of respondent No.3-Society, filed Suit No.4226 of 2007 and took out a Notice of Motion restraining the respondents Nos. 1 and 2, who are the builders and developers and the respondent No.3 Society from proceeding with the demolition of the old building and for further development and reconstruction of the new building mainly on the ground that unless individual agreement is entered into by the developers with the tenants occupying the premises in the old building, further development cannot take place as per rules. 3. The Notice of Motion was opposed and after hearing the parties, the learned trial court rejected the Notice of Motion. Therefore, they have preferred the present Appeal. It appears that development has to be made as per Regulation 33(7) read with Appendix III to the Development Control Regulations for Greater Bombay,1991. The old building is in the dilapidated condition and is required to be demolished and re-developed for the purpose of rehabilitation of the occupants of that building. That work has been given by the society to the respondent Nos. 1 and 2, being the 3 developers and builders. It appears that the Society has passed a unanimous resolution to give work of development to respondents Nos. 1 and 2 and they have also agreed to provide the transit accommodation to the occupants of the old building. Those occupants who do not want transit accommodation are entitled to receive rent from defendant Nos. 1 and 2 for securing alternative accommodation on their own till the new building is constructed and they are provided tenement in the new building. On the basis of the resolution passed by the society, a tripartite agreement between the developer, the Society and the Municipal Corporation has ben already approved at the general body meeting of the Society and now further steps are to be taken for implementation of the same. Admittedly, the plaintiffs-appellants are the members of the said Society and they are represented by the Society itself. 4. Mr. C.U.Singh, learned Senior Counsel, for respondents Nos. 1 and 2 makes a statement that under the said agreement, the members of the Society, who are presently occupying the tenement of 180 sq. ft. in the old building will be entitled to a tenement having carpet area of 575 sq. ft. or 585 sq. ft. in new building which is more than 3 times the area which they are occupying in the old building. In view of this, 4 interest of the plaintifs is fully protected. 5. Learned Counsel for the appellants only contended that under the guidelines issued by the Municipal Corporation in November 1995, it was clarified that development will enter into individual agreement with each of the occupants of the tenements and that direction has not been complied with. According to him, this is also mentioned in the I.O.D. issued in favour of the developer. However, the learned Counsel for respondents Nos. 1 and 2 pointed out that the clarification issued by the Corporation in November, 1995 has been superseded by the statutory regulations in January 1999 when Appendix III was added. Appendix III nowhere provides for individual agreement between each tenant and the developer. In view of the fact that the Society, which represents all the members, has already passed a unanimous resolution in the general body and thereby the interest of each member of the Society, including the plaintiffs-appellants, will not only be protected, but members will be substantially benefited, I do not see any reason to interfere in the impugned order rejecting the Notice of Motion. 6. For the aforesaid reasons, the Civil Application as the Appeal from Order stand dismissed. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)