1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1615 OF 2009 IN SUIT NO.2121 OF 2009 Nehru Nagar Neha Coop.Housing Society Ltd. .. Plaintiff Versus Maharashtra Housing and Area Development Authority, MHADA and Anr. .. Defendants Mr.Prashant Karande and Akshay Gosavi for plaintiff Mr.Madhubala Kajale, A.G.P. For defendant No.1 Mr.J.S.Kini i/b. Suresh Dubey for defendant No.2 CORAM : S.C.DHARMADHIKARI, J. DATE : 30th September 2009. P.C.: 1] Plaintiffs have instituted the present suit for a declaration that it is entitled to an area of 632 sq.mtrs. as reflected in the registered lease deed annexed at Annexure A to the plaint and the measurement map annexed to the letter dated 11th October 2005, Annexure C. The further prayer is of a declaration that demarcation of boundary wall carried out by the Executive Engineer, Ghatkopar Division, Maharashtra Housing and Area 2 Development Board (MHADA) on 11th February 2009 as reflected in the map annexed to the letter dated 23rd January 2009, Annexure P is incorrect and invalid. The next substantive prayer is that of removal of defendant No.2 from the plot of land allotted to the plaintiffs and for permanent injunction. 2] It is the case of the plaintiffs that it is a cooperative housing society duly registered under the Maharashtra Cooperative Societies Act, 1960. First defendant is the Authority established by the Government of Maharashtra under the provisions of Maharashtra Housing and Area Development Act, 1976. Second defendant is also a cooperative Housing society. 3] It is urged that the first defendant executed a lease in favour of the plaintiff on 1st October 2004 which is duly registered and under the lease deed an immovable property admeasuring 632.22 sq.mtrs. has been demised. By virtue of the lease deed the first defendant upon payment of Rs.1,82,320/- sold and conveyed the property i.e. Building No.20 standing on the land. This building comprises 20 tenaments. 3 4] It is the case of the plaintiffs that they intended to develop the property by demolishing the existing building No.20 and constructing new building in lieu thereof as per the policy and rules of first defendant. Accordingly, by a letter dated 4th January 2005 and by a further letter of a developer of September 2005, a request was made to first defendant to measure the property through an appropriate authority. The plaintiffs have further stated that upon measurement of area, the Deputy Chief Officer of the first defendant vide letter dated 11th October 2005 communicated to the Executive Engineer of the first defendant that the area has been measured and it is found that it admeasures about 632 sq.mtrs. 5] The plaintiffs have, thereafter, moved the Architect and Planner of first defendant, who had called upon the Executive Engineer, Ghatkopar Division to submit a report demarcating the plot boundaries as per the approved layout plan so as to enable issuance of NOC to the plaintiffs. It is stated that the property was demarcated and the area tallied with the figure of 632 sq.mtrs. as pointed out in the letter dated 11th October 4 2005. It is stated that the Executive Engineer of the first defendant confirmed the demarcation done by the Assistant Land Manager and it is, then, contended that the document to this effect has been signed by the Appropriate Authority. It is on this basis that on 31st March 2006 that a letter of offer was received confirming the area of the property as 632 sq.mtrs. as per the lease deed. Accordingly, the developer came to be appointed who applied for issuance of NOC and it is stated that the first defendant has no objection to the proposal submitted by the Architect. Thereafter, the Executive Engineer of the Corporation issued IOD dated 22nd May 2006 and the plaintiffs in compliance with the terms and conditions, sought further documents, so as to enable them to commence construction. 6] When the construction was almost complete, the Executive Engineer of the first defendant issued a letter to the plaintiff stating that the boundary wall between building No.20 and 22 has not been constructed in accordance with the demarcation and, therefore, plaintiffs should get the demarcation in the presence of the Secretary of defendant No.2 society and it was further directed that the Secretary should remain 5 present at site on 7th June 2008 at 11.30 a.m. Accordingly, the Secretary of plaintiff's society remained present at site for demarcation of plot boundary. Plaintiffs then became aware of the act of the second defendant and their developer of seeking to have an encroachment done by them, regularised, in the garb of fresh demarcation. There is an encroachment on the plot to the extent of about 20 sq.mtrs. and that is how the plaintiffs requested the Executive Engineer not to effect any changes in the records and maintain the same. However, to the plaintiffs shock and surprise, they received a letter from the Executive Engineer that the boundary wall constructed towards building No.22 (second defendant) is not in accordance with the demarcation and, therefore, the same is required to be demolished as per the plans of the first defendant, failing which the same would be demolished by first defendant. 7] Thus, a demolition was effected of the compound wall between Building Nos. 20 and 22. Upon demolition, the second defendant filed a suit in the City Civil Court against five office bearers of the plaintiffs in their individual capacity alleging that their acts in preventing the second defendant from carrying out the work of constructing wall as per the 6 permission of MHADA be declared as bad in law and for permanent injunction restraining the plaintiffs from preventing the second defendant from carrying out the construction of compound wall as sanctioned by MHADA. The said suit was resisted by the plaintiffs. However, ultimately it was found by the City Civil Court that the compound wall was demolished and the dispute being in respect of boundary wall, parties were directed to maintain status quo. The motion in which ad-interim order was passed came to be heard thereafter and the City Civil Court directed the first defendant to carry out a survey in the presence of parties. Accordingly, a notice was issued by the first defendant to both parties to remain present at site for demarcation of boundary between Building Nos. 20 and 22. It is alleged that thereafter, the first defendant acted high handedly and did not confirm the boundary earlier recorded but communicated to the plaintiff that the area in possession of the plaintiff is 632 sq.mtrs. and that of building No.22 is 532 sq.mtrs. The plaintiff sought confirmation of the earlier area recorded as 632 sq.mtrs. 8] It is in these circumstances and making allegations against both the defendants that the present suit has been instituted. 7 9] A notice of motion has been moved for interim reliefs and the interim reliefs prayed are in terms of prayer clauses (a) and (b) which read thus:- (a) Pending the hearing and final disposal of the suit, this Court be pleased to direct the District Inspector of Land Records of the City Survey and Land Records, Mumbai Suburban District to measure the area of the property as reflected in the lease deed annexed at Exh.A hereto and map annexed at Exh.C (Building No.20) as well as area of the plot of the defendant No.2 (Building No.22) at Survey No.229, 269, City Surv3ey No.12 (part), Nehru Nagar, Kurla, Mumbai with reference to already fixed reference points and thereafter to demolish the wall constructed by the defendant No.2 on the alleged demarcation line and to fix the boundary line for construction of wall between the plaintiff and the defendant No.2’s plots after confirming area of the plaintiff at 632 sq.mtrs.” 8 (b) Pending the hearing and final disposal of the suit, this Court be pleased to order, direct the defendant No.2 to stop the construction of a new building at Plot of land situate and lying underneath Building No.22, at Survey No.229, 269, City Survey No.12 (Part), Nehru Nagar, Kurla till its area is remeasured as by D.I.L.R.” 10] In the affidavit in support it is stated that on the basis of the illegal demarcation the second defendant would carry out construction at site and the plaintiffs are suffering loss of area to the extent of about 36 sq.mtrs. The construction, therefore, be restrained. 11] Affidavits in reply have been filed and as far as the authority is concerned it makes a reference to its records and states that the Area is recorded in the inspection that was directed to be carried out by the City Civil Court and the measurements pursuant thereto are correct. 12] As far as second defendant is concerned, an affidavit has been filed 9 wherein the second defendant has denied the allegations and contended that the second defendant is a cooperative housing society registered under Cooperative Societies Act. Even the second defendant made an application to the first defendant and in terms of the prevalent policy they were granted permission to reconstruct the building bearing No.22. There being dispute with regard to the boundaries clarification was sought from the Authority and ultimately, the Authority intervened and carried out demolition so as to remove the encroachment. Reliance is also placed upon approvals and permissions in favour of the second defendant and it is stated that there was an encroachment by the plaintiff on the immovable property of second defendant. A reference is also made to the suit filed in the City Civil Court and the interim orders made therein. It is stated that the area now recorded in the records of the first defendant is correct and, therefore, the plaintiff cannot prevent the second defendants from developing their property. All allegations of collusion etc. have been specifically dealt with and denied. It is stated that the plans for construction having been approved, the construction work is underway. At this stage, the Court cannot proceed on the basis that the allegations of the plaintiffs are correct and set aside the exercise undertaken by the 10 Statutory body. Until and unless the plaintiffs prove their case as set out in the plaint, they cannot get any interim relief. 13] Having perused the relevant material with the assistance of the Counsel for parties, I am of the view that the interim relief as prayed cannot be granted. If prayer clause (a) of the motion is perused, it is apparent that if the same is granted, the suit itself stands decreed without any trial. Presently, a boundary wall has been constructed pursuant to the measurement carried out by the first defendant. The measurements were carried out in the pursuance of the order passed by City Civil Court in a suit instituted by the second defendants to which plaintiffs as well as first defendants are parties. Once, the statutory body undertakes an exercise and carries out measurements, pursuant to Court’s order and, thereafter, the measurements are placed on record, then, unless and until, the plaintiff prove their allegations of collusion between defendant Nos. 1 and 2 and encroachment on their property by leading oral and documentary evidence it will not be possible to grant any interim relief. Today, it is not as if the plaintiffs are prevented from developing their property. Both plaintiffs and defendant No.2 are Cooperative Housing 11 Societies who claim the land allotted to them through the first defendant. If the first defendant has demarcated the area at site and that is in possession of both parties, then, to my mind, there is no prejudice caused by mere retention of compound wall. 14] The dispute is only with regard to 36 sq.mtrs. of land. This area/ portion is presently occupied by a compound wall. There is no construction which is made save and except putting up of the compound wall on this portion. The balance land in possession of both plaintiff and defendant No.2 is being developed in accordance with the NOC and approved so also sanctioned plans. In such circumstances, considering the extent of the alleged encroachment and finding that the plaintiffs are not prejudiced in any manner by retention and existence of the compound wall at site, then, no interim reliefs can be granted. Interim orders, as prayed, if granted, would amount to disposal of the suit itself. More so, when today, evidence is yet to be led and the records of the Statutory body indicating the area in possession of both sides, are not proved to be false and incorrect, then, it would not be just and proper to disbelieve the said records. The correction in the record can be carried 12 out only after plaint allegations are substantiated and proved. Considering that the plaintiffs are not deprived of use and enjoyment of the property in their possession and the retention of the compound wall causes no inconvenience to them, the request for interim reliefs is rejected. All the more, because I am satisfied that plaintiffs have failed to make out a prima facie case and even the balance of convenience is not in their favour. Motion is accordingly dismissed but with no orders as to costs. It is clarified that all findings and conclusions are tentative and prima facie. They shall not influence the outcome of the suit. Similarly, the construction on the disputed portion shall abide by the result of the suit and no equities can be claimed by its present retention. (S.C.DHARMADHIKARI, J)