: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.358 OF 2008 WITH CIVIL APPLICATION NO.419 OF 2008 IN SPECIAL CIVIL SUIT NO.935 OF 2007 Regency Mahavir Constructions & Anr. ....Appellants V/s. Pune Municipal Corporation & Ors. ....Respondents Mr.Y.S. Jahagirdar, Senior Counsel with Ms.Deepa Chavan i/b M/s.A.L.M.T. Legal for the Appellants. Mr.R.G. Ketkar with Mr.R.M. Pethe for Respondent Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATED : 29TH SEPTEMBER, 2008. P.C. : 1. Admit and heard finally. 2. It appears clear that even assuming that the T.D.R. which was acquired by the Appellants had been obtained by the original owner fraudulently from the Respondents and that the Respondents’ officer had fraudulently granted the same to the original owner, the Appellants were not responsible for the same. In other words, the Appellants appear to be innocent : 2 : victims of the alleged collusion between the officers of the Respondents and the original owner. 3. It is a moot point as to whether in these circumstances, the Appellants would not be entitled to recover anything from the Respondents by way of damages or otherwise. It is also a moot point as to how the equities would have to be adjusted by the Court. 4. Prima-facie it also appears that though the commencement of the construction may not have been illegal, the continued construction after receipt of the notices under the Bombay Provincial Municipal Corporation Act (BPMC Act) was contrary thereto. Further the legality of the notices have not been challenged. 5. The fact however also is that in the meantime, the Appellants have sold 22 out of 24 flats to third parties who in any event were not guilty of any offence or any impropriety. The entire burden/consequence of any action in respect of the construction not being regularised will fall on these innocent third parties, who are not even before me. Further even assuming that the construction is illegal : 3 : and the Appellants are responsible for the same, admittedly the same can be regularized by purchasing T.D.R. The approximate value of the T.D.R. is Rs.6.00 crores. Mr.Jahagirdar has on a query from the Court, upon taking instructions very fairly and responsibly made a statement that even if the Appellants do not succeed in the matter, they will ensure that the construction will be regularized and for such purpose, even if the Appellants are required to purchase T.D.R. for regularization of the said alleged unauthorized construction, the Appellants shall purchase the same and shall ensure that the flat holders who have purchased the flats shall not be evicted or lose the title or possession of the flats on account of construction carried out by the Appellants. The statement is accepted. 6. Some security in addition to the undertaking is however called for as a condition to the stay against taking any coercive action by the Respondents. 7. In the circumstances, the Appeal from Order is disposed of by following order :- i). The Civil Application is made absolute in terms of prayer (a) subject to the : 4 : Appellants depositing in the trial Court a sum of Rs.1,00,00,000/- on or before 31.12.2008. The amount, if deposited, will be invested in fixed deposit of a nationalized bank initially for a period of one year and thereafter for like periods of one year each. ii). Two flats namely flat Nos.701 and 701-A shall be sold by an officer to be appointed by the trial Court. The officer shall invite bids from the public. Further the sale shall be conducted only after notices to the Respondents and to the Appellants. All costs, charges and expenses incidental to and in connection with the sale shall be paid for by the Appellants in the first instance but subject to final orders in the suit. The sale proceeds shall also be invested by the trial Court in fixed deposit of a nationalized bank initially for a period of one year and thereafter for like periods of one year each. iii). The costs of the officer appointed by the trial Court for conducting : 5 : the sale are fixed at Rs.15,000/-. This amount shall be exclusive of all costs, charges and expenses and out of pocket expenses. iv). An undertaking on behalf of the Appellants - firm regarding protecting the rights of third parties in term referred to above shall be furnished within twelve weeks from today. Liberty to apply to the Respondents for issuing a completion certificate. v). The Appeal from Order is accordingly disposed of. The Civil Application is accordingly disposed of.