1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.762 OF 2008 ALONGWITH CIVIL APPLICATION NO.917 OF 2008 M/s Seawoods Estate Limited .... Appellants & Ors. Vs. City & Industrial Development .... Respondents Corporation of Maharashtra Ltd. Mr.Virendra Tulzapurkar, Senior Counsel with Mr. Rahul Chitnis and Mr. Indranil Deshmukh i/by Amarchand Mangaldas and S.A. Shroff & Co. Advocate for Appellants. Mr. G.S. Hegde with Mr. A.M. Kulkarni and C.M. Lokesh for respondents. Coram : SMT. R.P. SONDURBALDOTA,J Date : 4th September, 2008 P.C. 1. Rule made returnable forthwith. Heard both the Counsel. 2. The appellants who are original plaintiffs challenge the impugned order rejecting two applications Exhibit `5' and Exhibit `64' for interim reliefs. The respondents who are the original defendants are City & Industrial Development Corporation of Maharashtra Limited (CIDCO). 3. In or about July 1993, CIDCO issued a brochure inviting Non Resident Indians (NRI) to purchase on 2 ownership basis Apartments/Shops in Seawood Estate to be set up on land admeasuring about 58 acres (2,30,000 sq. mtrs.) at Nerul, Navi Mumbai. As per the brochure, the initial objective was to construct buildings with 1134 apartments/duplex penthouses. On the representation made in the brochure appellants No.2 and 3 purchased their respective apartments. It later turned out that instead of constructing 1134 apartments the respondent constructed 1536 apartments in the 46 buildings. The appellants accepted this change without objection. Appellant no.1 Company was incorporated on 27th March,1997. Since then CIDCO has handed over maintenance of Seawood Estate to it. 4. The appellants allege that after initial promise under the brochure of lease of land of 2,30,000 sq. mtrs., CIDCO brought it down to 1,69,542 sq. mtrs. The agreements of sale executed by CIDCO showed the land to be leased out to the association of flat purchasers to be of 1,69,542 sq. mtrs. The flat purchasers did not raise any dispute about the reduction in the total area. The appellants further allege that in the year 2003, CIDCO showed its willingness for execution of lease deed in favour of appellant No.1 in respect of the land on which the Seawood estate is situate. However, it further reduced the area of the land to be leased out to 1,38,702 3 sq. mtrs. It is further contended that defendants thereafter have suddenly attempted to encroach upon the land of said complex, started demarcating new boundaries by demolition of certain portion of boundary wall and undertook the construction of new boundary wall and started new project within the said land. Therefore, the appellant no. 1 filed Regular Civil Suit No.73 of 2004 in the Court of Civil Judge, Senior Division, Thane, in which ad-interim order was granted restraining CIDCO from making any construction over the land or said complex till disposal of the suit. Being aggrieved, CIDCO preferred Miscellaneous Civil Application No.83 of 2004 in the Court of District & Sessions Judge, Thane. When that appeal was taken up for hearing on 27th August, 2004, CIDCO filed a purshis along with a plan and submitted to Court that it intended to construct the building only in the area shown delineated on the said plan by red colour boundary line. Since this portion was clear of the land admeasuring 1,69,542 sq. mtrs. to be leased to the appellants, the learned District Judge accepted the same in the spirit and set aside the order passed by the trial Court. In the same spirit, appellant no. 1 also considered its position and withdrew the suit. Thereafter in the month of July,2005 CIDCO started construction on the adjoining land of three towers which have been described as Seawood Complex, Phase no. 2. 4 5. While the construction was under progress, the appellants realised that CIDCO is attempting to take over an area of 3323 sq. mtrs. out of total area of 1,69,542 sq. mtrs. which was not only delineated on the plan but also at site by putting up a barbed wire fencing. Therefore, it filed the instant suit for declaration that CIDCO is bound under statutory obligation to convey, by executing a lease deed in favour of appellant no.1, the suit land i.e. Plot no. 01 admeasuring 1,69,542 sq. mtrs. By prayer clause (b), it seeks direction to delineate and demarcate the boundaries of the suit land and by prayer clause ( c), it seeks direction to CIDCO specifically perform the agreements of sale. By prayer clause (e), the appellants seek a mandatory order directing CIDCO to remove from the suit land i.e. Plot no. 1, admeasuring 1,69,542 sq. mtrs., any encroachment if found to be done by way of construction. 6. The appellants had filed an application for interim reliefs at Exhibit 5 to restrain the CIDCO from encroaching upon the suit land admeasuring 1,69,542 sq.mtrs. and from carrying out any construction of proposed Phase II Complex on any part thereof and/or usurping land admeasuring 3,342 sq. mtrs. which is adjoining to what is called Seawood, Phase II 5 construction. The appellants had moved another application vide Exhibit 64 for appointment of Taluka Inspector of Land Records (TILR) as Court Commissioner for demarcating the land under Phase I. The application was allowed and the TILR filed his report stating that the area of the plaintiffs i.e. Phase I, actually at site admeasures about 1,66,200 sq. mtrs. leaving a balance of 3342 sq. mtrs. out of the land specified in the purshis at Exhibit 19 filed in the earlier suit. As per the report this area is also in occupation and possession of the appellants and the same is used by them. The report notes that representative of CIDCO has admitted and shown existence of barbed wire fencing between Phase-I and Phase -II. which fencing is beyond the land admeasuring 3342 sq. mtrs. making the entire land of Phase I to be 1,69,600 sq. mtrs.. 7. Thus, it is seen that the main issue in the instant suit relates to usurping and/or taking over possession of 3323 sq. mtrs. land out the suit land. It is apprehended by the appellants that CIDCO will include this land into its construction under Phase II. The interim reliefs sought by the appellants is essentially to retain the land admeasuring 3342 sq. mtrs. and protect it's possession and enjoyment. 6 8. It is contended on behalf of respondents that the appellants cannot have right over the suit property until the same is leased to them. It is also contended that from the words “initial objective” used in the brochures published in the year 1993, it was obvious that what was being constructed was only a part of entire project and not the full project itself. Therefore, the appellants cannot have any objection to the construction of the second phase. 9. Impressed by the two facts that the brochures contained words “initial objective” and that CIDCO is yet to convey the property to the appellants, the trial Court refused the interim reliefs to the appellant. 10. The correspondence between the appellants and CIDCO makes it prima facie obvious that what was proposed initially in the brochure, of lease hold rights in respect of 2,30,000 sq. mtrs. was reduced to 1,69,542 sq. mtrs. in the agreement of sale. It was further sought to be reduced to 1,38,702 sq. mtrs. when the time for execution of lease deed came. Though the appellants have accepted the first reduction, they are not willing to accept the second reduction. As far as the first reduction is concerned, the acceptance is by way of averments made in the plaint in this suit and also by way 7 of acceptance of the purshis filed in the earlier suit accompanied by the plan indicating the areas of the first Phase and the second phase. It is now sought to be submitted that the purshis filed was without prejudice to the rights and contentions of CIDCO in the dispute. However based on the purshis, CIDCO obtained orders from the District Court in the Miscellaneous Application, they commenced the work of phase II and the appellants withdrew the earlier suit. In the circumstances, CIDCO cannot be allowed to say that filing of purshis cannot be held against them. 11. The purshis at Exhibit 19 accompanied by the plan and the agreement of sale in favour of the flat purchasers prima facie establishes that CIDCO has agreed to convey the buildings of Seawood Estate to appellant No.1 together with leasehold rights in respect of land admeasuring 1,69,542 sq.mtrs. Therefore they cannot deprive the appellants of the disputed portion of the land admeasuring 3342 sq. mtrs. by including it in Phase II construction. Therefore, the appellants are entitled to interim relief for protection of their rights. If the interim relief as regards land admeasuring 3342 sq. mtrs. are not granted the appellants will suffer irreparable loss. 8 12. It appears that after the applications for interim reliefs were disposed of by the learned trial Court, CIDCO has removed barbed wire fencing demarcating the boundaries between the two phases. Though barbed wire fencing stands removed today, directions will have to be given to CIDCO for laying down barbed wire fencing to its original position. Hence, the order. O R D E R 1. The Appeal from Order is allowed. 2. The impugned order is set aside. 3. The application at Exhibit 64 is allowed. Respondents are directed to restore the barbed wire fencing to its position, as it was on 27th June, 2008. 4. The application at Exhibit 5 is allowed in terms of prayer clause (a). 5. In view of the disposal of the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off. (SMT. R.P. SONDURBALDOTA,J)