1 nms-523-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 523 OF 2010 IN SUIT NO. 300 OF 2010. Darshan Developers & Anr. ..Plaintiffs vs. Shobha D. Dhumal & Ors. ..Defendants .... Mr. Kunal Chima, for Plaintiffs. Mr. Sanglikar, for Defendants. .... CORAM : S.J.KATHAWALLA, J. DATE : 22ND JULY 2011. P.C. : 1. The present Suit is filed by the Plaintiffs-Developers against the Defendant No.1 Shobha D. Dhumal, inter alia for a declaration that the Agreement dated 22nd July 2001 (Exhibit ‘C’ to the Plaint) executed by the deceased husband of the Defendant No.1 in favour of the Plaintiffs is valid, subsisting and binding upon the Defendant No.1, her heirs, agents, etc. and that the Defendant No.1 and/or her heirs, agents, etc. are bound and liable to forthwith perform the obligations under the said Agreement dated 22nd July 2001. The Plaintiffs have also sought a mandatory order and injunction of this Court against the Defendant No.1 from using or continuing to occupy or remain in Room No. 1, near Tarabaug Entry Gate situated on 2 nms-523-10.sxw property bearing C.S. No. 375 of Mazgaon Division, Seth Motisha Lane, Mazgaon, Mumbai-400 010 (hereinafter referred to as 'the said temporary accommodation') and further that the Defendant No.1 be directed to shift into Flat No. 201 on the second floor, ‘B’ wing of the newly constructed building ‘Ganesh Darshan’ (hereinafter referred to as `the new ownership flat') which is allotted to Defendant No.1 and hand over the said temporary accommodation to the Plaintiff. 2. In the above Suit, the Plaintiffs have taken out the above Notice of Motion and have, pending the hearing and final disposal of the suit, sought a temporary injunction in terms of the said mandatory injunction directing the Defendant No.1 to vacate the said temporary accommodation and shift to the new ownership flat. The Plaintiffs have also prayed for appointment of Court Receiver with a direction to shift the Defendant No.1 to the new ownership flat allotted to her. 3. The building ‘Ganesh Darshan’ has been newly constructed because of the admitted re-development which has taken place under Regulation 33(7) of the Development Control Regulations, 1991. The society Tarabaugh Aikyawardhak CHS Limited i.e. the Defendant No.4 in its special general meeting held on 6th August 2000 had 3 nms-523-10.sxw resolved to redevelop its property which included the building in which the Defendant No.1 originally resided and had further resolved to get the development work done through the Plaintiffs. Thereafter, the Society had passed several consequential resolutions. 4. At the relevant point of time i.e. in the year 2001, the husband of the Defendant No.1 was the member of the society. The original member i.e. husband of the Defendant No.1 had on 22nd July 2001 executed an Agreement with the Plaintiffs whereunder the terms of redevelopment were agreed upon. On the same day i.e. on 22nd July 2001, the husband of the Defendant No.1 gave his irrevocable consent to the proposed redevelopment (page 27 of the plaint). After the demise of the husband of Defendant No.1, in view of certain amendments to the format of the consent required by MHADA, a fresh consent letter was executed by the Defendant No.1 on 26th June 2004 (page 30 of the Plaint). On 24th August 2004, MHADA gave its no objection for the said redevelopment (page 42 of the Plaint). Thereafter in the year 2004 itself the Defendant No.1 handed over possession of her original room to the Plaintiffs and shifted to the said temporary accommodation. In the meantime, some of the members of the society alleged that there was a fraud in levying the cess on some of the buildings of the society and in view 4 nms-523-10.sxw thereof, the Developer has wrongly claimed entitlement to higher FSI under DCR 33(7). It was contended that if it is ultimately decided that the said buildings/structures are not cessed, the provisions of DCR 33(7) would not be applicable, thereby disentitling the Plaintiffs from grant/use of additional FSI.. In view thereof, the said members filed a Writ Petition being No. 5382 of 2005 before this Court which was dismissed by the Hon’ble Division Bench of this Court [Coram : D.K. Deshmukh and R.Y. Ganoo, JJ.] by, inter alia, observing as follows : “to our mind it is apparent that the petitioners are disgruntled members of the respondent no. 5 society who are not supported by the majority of the members of the society. Therefore, with the intention to obstruct the construction of the buildings, this Petition has been filed. In our opinion, therefore, it will not be appropriate to judge the validity or otherwise of the order of the State Government dated 3-2-2003 at the instance of the petitioners.” The Defendant No.1 was admittedly not one of the members who had filed the said Writ Petition. 5. The Plaintiffs thereafter constructed the building ‘Ganesh Darshan’ and by his letters dated 22nd January 2009 and 24th March 2009 requested the Defendant No.1 to shift to the new ownership flat and hand over the said temporary accommodation to the 5 nms-523-10.sxw Plaintiffs. The Defendant No.1 by her letter dated 27th March 2009 addressed to the Plaintiff, recorded that some of the aggrieved members/tenants of the Respondent No.4 society have filed a case in the Hon’ble Supreme Court of India challenging the said redevelopment, the irregularities and the violation of rules and regulations of the DCR therein and that the said proceedings were pending before the Hon’ble Supreme Court of India. It was further contended that the area of the tenament in the newly constructed building is smaller than what was agreed under the development Agreement dated 8th July 2001 and even the construction of the said building is of inferior quality. The Defendant No.1 therefore in her said letter took a stand that unless and until the case is finally decided by the Hon’ble Supreme Court in its true letter and spirit, the Defendant No.1 is not in a position to occupy the said ownership accommodation offered by the Plaintiffs. 6. Thereafter on 31st March 2009 the Defendant No.5 - Mumbai Municipal Corporation issued part Occupation Certificate to the Plaintiff-Developer (page 48 of the Plaint). In a query raised by this Court, the Advocate for the Plaintiffs have informed the Court that assessment bills are raised by the Corporation inter alia pertaining to the said ownership flat allotted to the Defendant No.1, right from the 6 nms-523-10.sxw date of issuance of the Occupation Certificate and the same is paid by the Plaintiffs. 7. Since the Defendant No.1 did not vacate the temporary accommodation and shift to the new ownership flat, the Plaintiffs filed the present Suit against the Defendant No.1 seeking reliefs which are set out hereinabove. The Plaintiffs also took out the above Notice of Motion being No. 523 of 2010 seeking interim reliefs in his favour and against the Defendant No.1. The Notice of Motion was heard by this Court [Coram : R.Y. Ganoo, J.] and by an order dated 3rd August 2010 the Notice of Motion was allowed in terms of prayer clause (a) which reads thus : “(a) That pending the hearing and final disposal of this suit, the Defendant No.1, her heirs, agents, servants or any person claiming through or under them be restrained by an order and injunction of this Court, from using or continuing to occupy or remain in the temporary transit accommodation i.e. room no.1, near Tarabaug Entry Gate situated on the property bearing C.S. No. 375 of Mazgaon Division, Seth Motisha Lane, Mazgaon, Mumbai-400 010 and shift to flat no. 201 on the 2nd floor in the ‘B’ wing of the newly constructed building named as ‘Ganesh Darshan’ which is allotted to the Defendant No.1 and hand over the said temporary transit accommodation Room No.1 to the Plaintiffs.” 8. Some of the relevant observations/findings of the learned Single Judge in his order dated 3rd August 2010 are reproduced 7 nms-523-10.sxw hereunder :- 7. ... ... ... A fear was expressed by the learned Counsel for Defendant No.1 that in case in future if the construction carried out as regard Ganesh Darshan turns out to be in violation of FSI Rules and other Rules of Government of Maharashtra. He submitted that each of the Defendant No.1 would be dis-housed and it would lead to a situation which cannot be restored. 8. In reply to this, learned Counsel for the Plaintiffs has produced before the Court a letter dated 30th June 2010 issued by the BMC addressed to the Architect of the Plaintiffs. Perusal of the said letter would go to show that the FSI calculations and computation is in order and the stop work order already issued is withdrawn. This letter was relied upon by the learned Counsel for the Plaintiffs to show that there is no impediment on the part of Defendant No.1 in occupying the respective flats and there is no threat to their occupation. 9. Learned Counsel appearing for the Plaintiffs for the purposes of protecting the interest of each of the Defendant No.1, pending the disposal of the Suit have tendered an undertaking executed by the partners of Plaintiffs. By the said undertaking each of Defendant No.1 is protected inasmuch as the Plaintiffs have assured and undertaken to this Court that each of Defendant No.1 would be provided an alternate accommodation of the same area in the same locality where Ganesh Darshan building is situate. Accordingly, the Plaintiffs undertaking adequately protects the interest of the each of Defendant No.1 and Motion can be made absolute. 10. On consideration of the entire record and the letter issued by the Corporation dated 30th June 2010, I am prima- facie satisfied that the construction as regards Ganesh Darshan is in order and in compliance with the various provisions of law as they stand today. The fear expressed by Defendant No.1 regarding FSI problems is without any substance. There is no threat to possession and occupation of Suit flats by each of Defendant No.1. 8 nms-523-10.sxw The Court is informed that some other members have already shifted to flats in Ganesh Darshan building. 11. It is noticed that each of the Defendant No.1 is presently occupying 290 sq. ft. approx. carpet area and Flat Nos.201 and 202 is of area 400 sq.ft. carpet and this area has been alloted to Defendant No.1 as per the agreement entered into by and between the parties and there is no dispute as regards area to be given to each of Defendant No.1. The said flats are ready in all respects and there is no difficulty for Defendant No.1 to shift to new flats. 12. I have perused the undertakings given by the Plaintiffs. Those undertakings adequately protect the interest of Defendant No.1 and there is no need for the Defendant No.1 to fear that in future if they are asked to vacate the flats, they would be on street. The terms of undertakings are wide can be enforced against the Plaintiffs. 13. It is also required to be noted that it is necessary to see that premises presently occupied by Defendant No.1 are required to be demolished to make the land available for construction of other buildings so as to complete the development project as a whole. If the project remains incomplete for no fault of the Plaintiffs, the Plaintiffs would suffer huge losses and other persons who expect to get flats as per development project would be deprived of those premises. The balance of convenience is in favour of the Plaintiffs. 14. With the aforesaid view which I have taken, the Notice of Motion is required to be made absolute in terms of prayer clause (a) by accepting undertaking given by the respective Plaintiffs and by treating that Flat No.201 to be allotted to Defendant No.1 in Suit No.300 of 2010 and Flat No.202 to be allotted to Defendant No.1 in Suit No. 426 of 2010 as a temporary accommodation to each of Defendant No.1 subject to the result of the Suit. 15. So far as the relief in terms of prayer clause (b), there is no need to pass an order of Receiver because if the relief in terms of prayer clause (a) is granted, naturally, each of 9 nms-523-10.sxw Defendant No.1 will have to shift to new flat and vacate the present temporary transit accommodation. If there is any difficulty in executing this arrangement, it will be open for the Plaintiffs to apply this Court for an appropriate order ultimately to see that each of Defendant No.1 shifts to Flat No. 201 and Flat No.202 respectively. With this, each of the Motion is being disposed of by passing the following order :- (i) Each of the Motion is made absolute in terms of prayer clause (a). (ii) Undertakings given by the Plaintiffs’ partners are accepted. (iii) In case each of Defendant No.1 does no shift to new flat within 20 days from today, liberty is granted to the Plaintiffs to move for appropriate orders including relief in terms of prayer clause (b) so as to see that each of Defendant No.1 shifts to the respective flats which are being allotted to him on terms as stated above. (iv) In the facts and circumstances of the case, there shall be no order as to costs." 9. Being aggrieved by the order passed by the learned Single Judge dated 3rd August 2010 directing the Defendant No.1 to hand over vacant possession of the said temporary accommodation to the Plaintiffs, the Defendant No.1 preferred an Appeal before the Hon'ble Division Bench of this Court being No. 974 of 2010. In the memo of Appeal, the Defendant No.1 has inter alia raised the following grounds : “(b) The Impugned Order and judgment passed by the learned Single Judge has resulted in virtually passing 10 nms-523-10.sxw decree at the interim stage of the suit against the Appellant herein. (d) The Learned Judge ought to have dismissed the Notice of Motion taken out by the Plaintiff as no interim relief can be granted unless the validity of the Agreement dated 22nd July 2011 (Exh. ‘C’ to the Plaint) is decided by recording evidence of the parties. (e) The Learned Jude ought to have considered that the Appellant who is Defendant No. 1 in the suit has filed her reply to the Notice of Motion and has raised important issue of misuse of F.S.I. by the Respondent No.1 herein and there is no rejoinder from the Respondent No.1 and as such ought to have held that there is no question of further development of the project and at this stage the prayer clause (a) of the Notice of Motion cannot be considered. (f) The Learned Judge ought to have considered that the Appellant in her reply to the Notice of Motion has stated that the Respondent No.1 Plaintiff have created 71 bogus tenancies for purpose of obtaining more F.S.I. and there is no denial from the plaintiffs and as this issue is pending before the appropriate authority, interim reliefs in terms of prayer clause (a) ought to have been rejected. (g) The Learned Judge ought to have considered that the Urban Development Department, Government of Maharashtra by the order dated 7/7/2007 has cancelled the 2.5 FSI on gross plot area and the said order is valid and subsisting and on the contrary the Plaintiff had challenged the said order by filing Writ Petition in the Hon'ble Court which was withdrawn subsequently. (o) The Learned Judge ought to have considered that the disputed agreement dated 22/7/2001 provides for permanent alternative accommodation of 400 sq.ft. Carpet area in lieu of old premises, however Plaintiffs are offering only area of 320 sq.ft. Carpet area which violate one of the clause of the Agreement dated 22/7/2001. (p) The learned Judge ought to have seen that the Appellant has stated in her affidavit in reply that there is no consent of 70% of the members/ tenants/ occupants as 11 nms-523-10.sxw required under Regulation 33(7) of the Development Control Regulation 1991 and Appellant and many other members/ tenants/ occupants have cancelled NOC granted by MHADA in favour of Plaintiffs and since issue regarding cancellation of NOC is pending before the appropriate authority, interim relief ought to have been rejected at this stage.” 10. In the said Appeal, the Hon’ble Division Bench of this Court [Coram : Dr. D.Y. Chandrachud and A.V. Mohta, JJ.] by an interim order dated 2nd December 2010 directed the Municipal Corporation to depute a Competent Officer from the Building Proposals Department of ‘E’ ward to inspect the flat of the Defendant No.1 on 4th December 2010 at 12.00 noon and after taking measurement of the said flat and comparing the existing position at site with the sanctioned plan, submit his report specifying (i) the area of the tenement provided to the Defendant No.1 (ii) whether the necessary amenities have been provided and (iii) whether the present position of the tenement confirms to the sanctioned plan. The Architect of the Defendant No.1 was also allowed to remain present at the time of the said inspection. Accordingly, after the said report was submitted by the Officer from the Building Proposals Department of the Corporation to the Hon’ble Division Bench of this Court, the Hon’ble Division Bench heard the Appeal and disposed of the same by its order dated 21st December 2010. In the said order, the Hon’ble 12 nms-523-10.sxw Division Bench recorded that the grievances made by the Appellant (Defendant No.1) before the Appellate Court was that flat no. 201 did not measure 400 square feet as provided in the Agreement and necessary amenities had not been provided. In view thereof, the Hon’ble Division Bench had directed the Competent officer from the Building Proposals Department of the Corporation to submit his report specifying the area of the tenament provided to the Defendant No.1 and whether necessary amenities were provided therein and whether the tenament confirms to the sanctioned plan. The Hon’ble Division Bench has further recorded that from the Affidavit filed by the Assistant Engineer of the Building Proposals Department of ‘E’ Ward of the Corporation, it is evident that the tenament to be provided to the Defendant No.1 is substantially of the same area as what had been provided in the Agreement, the short fall being less than one square feet. The amenities have also been provided in accordance with the Agreement except mosaic flooring in the bed room. The Hon’ble Division Bench also recorded the undertaking of the Plaintiff-Developer that if the Defendant No.1 is required for any reason whatsoever to vacate the existing tenament, the tenament equivalent thereto admeasuring 400 square feet shall be provided by the Plaintiff-Developer to the Defendant No.1 in the same development. The Hon’ble Division Bench thereafter recorded that 13 nms-523-10.sxw they do not find any infirmity in the order of the Learned Single Judge directing the Appellant to shift to the alternate accommodation provided in pursuance of the Agreement entered into by the Appellant with the Developer. The Hon’ble Division Bench therefore dismissed the Appeal. At that time the learned Counsel appearing for the Defendant No.1 requested for some time to move to the alternate accommodation and accordingly the Hon'ble Division Bench granted time upto 10th January 2011 to the Defendant No.1 to shift to the new ownership flat. 11. Despite the time sought and obtained by the Defendant No.1 from the Hon’ble Division Bench of this Court, to shift to the new ownership flat by 10th January 2011, the Defendant No.1 failed and neglected to do so on or before 10th January 2011. Instead, the Defendant No.1 filed Review Petition No. 2 of 2011 seeking Review of the Order passed by the Hon'ble Division Bench dated 21st December 2010 in Appeal No.974 of 2010. In the said Review Petition, the Counsel appearing for the Defendant No.1 submitted that - (i) There is a banyan tree overlooking the tenament; (ii) The kitchen has not been made habitable; (iii) The plumbing is likely to develop an obstruction; and (iv) The area of the tenament does not measure 400 square 14 nms-523-10.sxw feet. The Hon’ble Division Bench after hearing the parties by its order dated 15th February 2011 inter alia recorded that they were not inclined to entertain the Review Petition which raises purely a dispute on facts and is based on material which was not placed before the Court when the earlier order was passed. However, the Hon’ble Division Bench recorded the assurance of the Plaintiff that he would install a safety grill to obviate any inconvenience as a result of the branches of the banyan tree and take necessary steps to prune the branches of the Banyan tree after obtaining permission of the Municipal Corporation. The Hon’ble Division Bench has also recorded in its Order that at the time of hearing the Review Petition, it was sought to be submitted on behalf of the Defendant No.1 that it has been recorded in paragraph 4 of the Order that 39 out of 56 tenants have shifted and this would not amount to 70% of the tenants. The Hon’ble Division Bench observed that the said submission was not urged before the Court at the time of the hearing of the Petition and thus cannot be allowed at this stage in Review. In any case the number of tenants who have presently shifted would not be indicative of whether 70% of the members have consented to the scheme under DCR 33(7). The Review Petition was therefore dismissed on the ground that the same was devoid of any merits. 15 nms-523-10.sxw 12. The Defendant No.1 despite having failed to obtain a stay from the Appeal Court, on the direction given to the Defendant No.1 to shift from the said temporary accommodation to the new ownership flat, and despite not having challenged the order dismissing the Appeal as well as the Review Petition, committed flagrant breach of the order passed by the Learned Single Judge and also of the order of the Appeal Court to shift from the said temporary accommodation to the new ownership flat. In view thereof, the Plaintiffs have now moved for appointment of the Court Receiver with a direction to make Defendant No.1 to vacate the said temporary accommodation and shift to the new ownership flat. 13. As set out hereinabove, the learned Single Judge vide his Order dated 3rd August 2010 has finally disposed off the above Notice of Motion in terms of prayer clause (a) i.e. directing the Defendant No.1 to shift from the said temporary accommodation to the new ownership flat, which order is confirmed by the Hon'ble Division Bench of this Court. The learned Single Judge has categorically provided in his order dated 3rd August 2010 that since prayer clause (a) is granted, the Defendant No.1 will have to shift to the new flat and vacate the present temporary accommodation. In 16 nms-523-10.sxw view thereof, the Learned Single Judge recorded that there is no need to pass an order appointing a Receiver. The Learned Single Judge has stated that, if there is any difficulty in executing this arrangement, it will be open for the plaintiffs to apply to this Court for an appropriate order ultimately to see that the Defendant No.1 shifts to Flat No.201. The Plaintiffs therefore moved this Court for a very limited purpose viz. for implementation of the order passed by the learned Single Judge and confirmed by the Hon'ble Division Bench, through the Court Receiver. However, Mr.Sanglikar, the learned Advocate for the Defendant No.1 has tried to re-argue the entire matter before me and despite the orders of the learned Single Judge and the Hon'ble Division Bench directing the Defendant No.1 to shift from the temporary accommodation to the new ownership flat, has contended that the Defendant No.1 cannot be asked to shift from the temporary accommodation to the new ownership flat. 14. Mr.Sanglikar, learned Advocate for the Defendant No.1 has submitted that the Defendant cannot