- 1 - 41.nms.118.11s.98.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 118 OF 2011 IN SUIT NO. 98 OF 2011 Subhash P. Baldia & Anr. ..Plaintiffs -Versus- Harmit S. Chadha & Anr. ..Defendants .......... Dr.Birendra Saraf a/w. Mr.Swanand Ganoo, Ms.Nita Solani i/b Kiran Jain & Co. for the Plaintiffs. Mr.Pravin Samdani, Senior Counsel a/w. Mr.Rajiv Narula i/b M/s.Jhangiani Narula & Associates for the Defendants. .......... CORAM : S.J. VAZIFDAR, J. DATE : 8TH NOVEMBER 2011. P.C. 1 The suit is filed for a declaration that the defendants have no right, title or interest to interfere with the plaintiff’s use, occupation, possession and ownership of the suit premises namely a shop admeasuring 64.17 sq.mtrs. and the land beneath the same and an injunction restraining the defendants from disturbing or interfering with the plaintiffs’ possession of the suit premises. The plaintiffs claim to have purchased the suit property by an agreement dated 2nd January 1987 entered into by them with one Paul Vaz. Recital V and clauses 1 and 13 and schedule 3 thereof read as - 2 - 41.nms.118.11s.98.11 under : Recital V : V) The purchasers have approached to the Vendor for the purchase of the said Shop more particularly described in the Schedule III hereunder written, for a lump sum price or consideration of sum of Rs.41,000/- (Rupees Fourty One thousand only) and the Vendor has agreed to sell, transfer and assign of his right, title and interest in respect of the said shop for a lump sum price or consideration of sum of Rs. 41,000/- (Rupees Fourty One thousand only), in favour of the Purchasers for ever, on the terms and conditions more particularly set out hereunder:- Clause 1 : 1) The Vendor hereby sell, transfer and assign to the Purchasers and the Purchasers shall purchase from the Vendor the said shop standing thereon more particularly described in the Second Schedule hereunder written forming part of the larger property described in the First schedule hereunder written for a lump sum price or consideration of a sum of Rs.41,000/- (Rupees Fourty one thousand only). Clause 13 : The Vendor hereby declares that:- (a) The said part is equivalent to free hold property subject only to payment of annual agricultural assessment to Government and subject to the provisions contained in the Maharashtra Land Revenue Code, 1966, as annexed upto date, and is not held under any sanad and/or agreement. (b) In respect of the said shop there are no outstanding encumbrances, mortgage, lien, notices, for acquisitions, requisition or set-back, easement rights, or tenants (protected or otherwise) or agriculturies or outstanding interest in or claim by any parties other than the vendor nor is the said shop subject matter of any pending suit or attachment, either before or after judgment. - 3 - 41.nms.118.11s.98.11 (c) No notification is issued under any ordinances, acts, statutes, rules or regulations (State or Central) affecting the said part. (d) Neither the Vendor nor his predecessors in title nor any body claiming from or under them or any of them has or have granted any right of way, easement or licence or any other right to any person over the said property that no such right, has become effective by prescription or otherwise howsoever and that none of the Owner or occupier of the adjoining lands or their tenants or the public uses or has lawful access to any part thereof the said property for passing and re passing between any points within the said property, this agreement is executed on the faith and footing of the aforesaid declaration by the Vendor. THE SCHEDULE III HEREINABOVE REFERRED TO SHOP premises admeasuring about 64.17 sq. mtrs, standing on the part of the property admeasuring about 253.25 sq. mtrs forming the part of the larger property bearing Survey No.139-A, Hissa No.29, C.T.S. No.1976, 1976/1 lying and being at Western Express Highway Vile Parle (E), Bombay 400 099. 2 Prima facie, the agreement was only with respect to the structure standing on the land and not the land beneath it itself. Recital V states that the plaintiffs approached the vendor for the purchase of the ‘said shop, more particularly described in the schedule III’. Schedule III, in turn, refers only to the shop premises admeasuring 64.17 sq.mtrs. Schedule III further states that the shop premises standing on a portion of the property admeasuring 253.25 sq. mtrs.. There is a distinction in the agreement between the shop and the land beneath it. Similarly, clause I of the - 4 - 41.nms.118.11s.98.11 agreement also refers only to the shop described in the IIIrd schedule (The reference to the second schedule appears to be a typographical error as it is nobody’s case that 253.25 sq. mtrs. described in the IInd schedule was conveyed to the plaintiff). In Clause 1, there is a distinction between the shop and the land as the shop and the land are referred to separately. Schedule I refers to the larger property and not to the shop. 3 Having said the same, it is clear that the plaintiffs were in possession of the structure namely the shop. Prima facie, they have been in possession of the structure since the year 1987. In any event, they have been in possession of the structure many years before it was demolished by the Municipal Corporation pursuant to the notice dated 31st March 2011 under Section 351 of the BMC Act. The photographs indicate that the structure has been considerably demolished but not entirely removed. The question whether the structure is legal or not is a different matter altogether. The question before me at present is whether the defendants are entitled to dispossess the plaintiffs without recourse to due process of law. 4 The plaintiffs filed Suit No.1202 of 2008 in the Bombay City Civil Court challenging the notice under Section 351 of the BMC Act. Ad-interim relief was granted directing the parties to maintain status-quo on 4th July - 5 - 41.nms.118.11s.98.11 2008. The same was however vacated by an order dated 13th December 2008. The Notice of Motion was dismissed by an order dated 28th July 2010. The plaintiff’s Appeal from Order No.914 of 2010 was withdrawn on 11th January 2011. After the ad-interim order was vacated and before the Appeal from Order was withdrawn, the BMC demolished the structure to a substantial extent. The plaintiffs state that it is in view thereof that the Appeal from Order was withdrawn. The plaintiffs intend adopting proceedings inter alia for an order directing that they be permitted to reconstruct the same. The Chamber Summons for amendment of the plaint has already been filed. 5 Mr.Samdani, the learned senior counsel appearing on behalf of the defendants states that all the documents relied upon by the plaintiffs were forged and fabricated and that the plaintiffs have no title to the premises. For the purpose of this Notice of Motion, I do not intend considering the disputes between the parties as to the plaintiffs’ title to the suit premises. The same are expressly kept open. The contention that the deeds of conformation are also fabricated, is another matter altogether. The contentions in respect thereof are also kept open. It is sufficient for the purpose of this Notice of Motion to note that the plaintiffs were in possession of the structure much before the same was demolished. Their names were entered in the property cards in the year 2003. - 6 - 41.nms.118.11s.98.11 6 The plaintiffs claim to have purchased the property by an agreement dated 2nd January 1987 whereas the defendants claim to have acquired the property on which the suit structure is standing pursuant to two registered conveyances dated 23rd November 2007 and 29th September 2008. These conveyances also referred to the plaintiffs’ structure. The defendants were therefore aware of the plaintiffs’ possession / occupation of the structure. 7 In the circumstances, the plaintiffs are entitled to some protection. If the defendants are permitted to exploit the entire larger property including the portion upon which the suit structure existed, the plaintiffs would be left without any remedy if they ultimately succeed in the suit. On the other hand, I do not consider it necessary or desirable to affect the plaintiffs’ right in the entire property during the pendency of the suit. If a status-quo order is passed, there is a possibility of the same affecting the defendants’ right to exploit the entire larger property. 8 In the circumstances, the interest of justice would be met by safeguarding the plaintiffs’ interest to the extent of a similar structure that existed upon the suit premises. For instance, in the event of the plaintiffs’ succeeding in either this suit or the suit in the Bombay City Civil Court, the plaintiffs may well be entitled to occupy /re-occupy the structure to be built - 7 - 41.nms.118.11s.98.11 thereon in terms of any order that may be passed. If, on the other hand no interim orders are passed, the plaintiffs’ right would be prejudiced irreversibly. 9 Mr.Saraf states that the height of the property was 21 ft.6 inches. Prima facie, this appears to be correct. The notice under Section 351 of the BMC Act, pursuant to which the demolition took place stipulates the height of the structure as 9 ft. + 10 ft. 3 inches + 2 ft. 3 inches. However, 2 ft. 3 inches comprises of the plinth. There is a mezzanine floor one end of which has a height of 7.3 inches and the other end has a height of 9 fts. I am inclined therefore to consider an average height of 8 ft for that portion. The plaintiffs therefore would be entitled to protection to the extent of a structure admeasuring 64.17 sq. mtrs. with an aggregate height of 18 ft. 3 inches. The structure however shall not have more than two floors and shall be commercial premises on the ground floor. 10 In the circumstances, the following order is passed : (i) The defendants shall be entitled to develop the entire property including the portion upon which the suit structure existed. The defendants shall however, keep available premises admeasuring 64.17 sq.mtrs. with a height of not less than 18 feet 3 inches in the aggregate but not of more than two floors. - 8 - 41.nms.118.11s.98.11 (ii) The defendants shall be entitled to give the premises out on leave and licence basis for a period not exceeding three years at a time. The compensation however shall be deposited in Court after deducting all the costs, charges and expenses in connection with the leave and licence agreement. The licensee shall be entitled to continue to be in possession for the entire duration of the licence period even if an order is passed in respect thereof during the validity of the licence period. The leave and licence agreement shall not be finalized till the expiry of a period of seven working days after the service of a copy of the draft upon the plaintiffs’ advocate. Liberty to the plaintiffs to apply to improve the offer. The defendants shall be entitled to withdraw from the amounts deposited, the costs in respect of the construction to the proportionate extent of the suit premises. Liberty to apply in this regard. (iii) In the event of the plaintiffs succeeding in any proceedings in having the structure reconstructed, the order shall inure to the benefit of the plaintiffs in respect of such structure to be reconstructed as provided above irrespective of this order provided the construction has not commenced in accordance with law.. The same would however be subject to any others that may be passed in proceedings that the defendants may adopt in respect of the same. (iv) Alternatively, the defendants shall at their option be entitled to keep a portion of land from the larger property to the extent necessary to construct the structure admeasuring - 9 - 41.nms.118.11s.98.11 not less than 64.17 sq. mtrs. with a height of not less than 18 ft. 3 inches. (v) It is clarified that this order is only for the purpose of protecting the rights of the parties at this stage. The merits of the contentions especially as regards the plaintiffs’ title have not been considered. All other proceedings including the suit before the Bombay City Civil Court shall therefore be decided without being influenced by any of the observations in this order including the operative part thereof. (vi) Status-quo in respect of the portion of the larger property upon which the suit structure stood, shall be maintained by all the parties till the sanctioned plans are obtained by the defendants and for four weeks after the same are served upon by the plaintiffs’ advocate. (vii) No order as to costs. -