1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2985 OF 2008 IN SUIT NO.654 OF 2007 Sarthak Co-op. Hsg. Society Ltd. ...Plaintiff Vs. Laxmibai Shankar Mungekar & Ors. ...Defendants Mr.S.C . Naidu with Mr/ N.P.Dalvi and Mr. S.R. Ingule i/b. S.C. Naidu & Co., for Plaintiff Mr.J.S . Kini with Mr. Suresh Dube for Defendants 1 to 6 Mr. S.M. Gorwadkar with Mr. Deepak Thakre for Defendants 7 to 10 CORAM: SMT.ROSHAN DALVI, J. DATED: 23 RD OCTOBER, 2008 P.C. 1. The Plaintiff has sued to declare a conveyance dated 6th September, 2005 void as against the Plaintiff. The conveyance is between Defendants 1 to 6 and Defendants 7 to 10. 2. The Plaintiff took out Notice of Motion No.4474 of 2006 for appointment of Court Receiver and for various injunctions against Defendants consequent upon the Conveyance dated 6th September, 2005. That Notice of 2 Motion is pending. This Notice of Motion is for an additional relief in respect of a temporary patra shed constructed by the Defendants for storage of the construction material of the Defendants 7 to 10 in respect of the construction sought to be put up by them pursuant to the conveyance. The Plaintiff presses only prayer (b) as the other reliefs are prayed for in the earlier Notice of Motion. The Defendants contend that the Plaintiff has no right over the land on which the temporary structure is constructed by them. Hence the Plaintiff's right to the land below the structure is required to be first seen. The first question that arises is whether the temporary patra shed is on the Plaintiff's plot or on the plot next to the Plaintiff's plot sought to be developed by the Defendants 7 to 10. 3. Defendants 1 to 6 are owners of the suit property. They sought to develop it. Upon development the Plaintiff Society building came to be constructed. The purchasers of flats in Plaintiff building entered into their respective separate agreements for flat purchase. They registered the Society as per their statutory right under Section 4 of the Maharashtra Ownership Flats Act, 1963 (MOFA). They became entitled to be conveyed the entire plot of land sought to be developed. 4. The plot of land is described in paragraph 4 of the 3 plaint, which is Plot No.14- A, Survey No.97, Hissa No.2(part) CTS No.333, Aarey Road, Peru Baug, Goregaon (E), Mumbai- 400 063 originally admeasuring 1556.87 sq. mtrs. After deduction of set- back area it measures 1344 sq. metres. The agreements of the flat purchasers specify this description in the Schedule to the agreement. It is also as shown in the title certificate annexed to the agreements of the flat purchasers. The plot came in set- back area for construction of Aarey road. A part of the plot which went in set- back area came to be deducted. The set- back area deducted is on the South as well as East side of the Plaintiff's plot. In the remaining area of the plot, the Plaintiff's building has come to be constructed. Plot No.14- A is a part of the final Plot No.14 which came to be divided into Plot Nos.14A and 14B. Plot No.14B is next to the suit plot No.14A. Plot No.14 is divided into the aforesaid 2 plots having an arterial road in between. This is shown in the approved plan dated 16 th May, 1978 relied upon by the Plaintiff, EXHIBIT-B to the plaint. 5. The location plan shows the proposed site sought to be constructed. The proposed site is shown bounded in red colour. That is the suit plot at CTS No.333. The location plan shows the arterial road going from Aarey road further North. On the other side of the arterial road is Plot No.334. That 4 plot is stated to be developed by the Defendants 7 to 10. 6. It is the case of the Plaintiff that a part of the Plaintiff's plot admeasuring 390 sq. metres on the Eastern side is being taken up and utilized for development of Plot No.334. Consequently the Plaintiff has sought the declaration that the conveyance dated 6th September, 2005 is void against the Plaintiff. The temporary patra shed is constructed on the part of the land admeasuring 390 sq. metres which is so unsurped by Defendants 7 to 10. 7. It is material to see the extent of the suit plot. That is shown in the approved plan itself. The initial area of the plot is shown to be 1556.87 sq. mtrs. The set- back area for Aarey road is 212.75 sq. mtrs. The net area of the plot is 1344.12 sq. mtrs. The plan further shows the existing floor area to be retained to be 125.70 sq. mtrs. This is stated to be the area of the chawl/unauthorised constructions on the suit plot before development. The total buildup area of the proposed development is shown to be 1314.64 sq. mtrs. That is the FSI which could be consumed on the suit plot of land by construction of the Plaintiff Society building consisting of 2 Wings. This takes into account also the FSI with regard to the chawls/unauthorised structures to the extent of 125.70 sq. mtrs on the plot. 5 8. The unauthorised structures would be first required to be demolished. Upon such demolition only the FSI could be consumed. The FSI could be consumed only on the Plaintiff's plot of land. The plot of land to be conveyed to the Plaintiff's Society would take into account such unauthorised construction on the plot, since demolished. Upon demolition of all the unauthorised construction on the entire plot, the vacant plot to the extent of the net area of 1344.12 sq. metres is to be conveyed to the Plaintiff Society. 9. Around such plot the Plaintiff can construct a compound wall. It would be within this plot of land that the Plaintiff would have the Society building, and the compulsory open space as per the DC regulations. The area enclosed by such compound wall constructed as per the approved plan should be 1344.12 sq. metres and no less. This aspect can be easily seen upon actual measurement made by the District Inspector of Land Records (DILR). 10. The chawl/unauthorised construction on plot No.333 is on the side of the plot which was near Plot No.334 adjacent to the road shown in the plan. It had a toilet block. The toilet block is very conspicuous. It shows and determines the boundaries of the Plaintiff's Plot No.333 on the East. As 6 per the sanctioned plan the Plaintiff's plot would be up to the East end of the existing chawl shown on the plan. The existing chawl shown on the plan, which has since been demolished, is to the South of the toilet block. The Plaintiff is entitled to the land below what was the existing chawl before its demolition. The extent of the plot is shown as the site plan in the approved plan. 11. It is contended on behalf of the Plaintiff that the temporary shed is where the chawl initially was. That is in the East side of the suit plot of land. That is seen to be on the land required to be conveyed to the Plaintiff Society. 12. The conveyance, which is sought to be executed by and between the Defendants consumes and takes up the space which is now vacant after demolition of the existing chawl. That is to the East of the suit plot of land. In that place the temporary shed is shown to be constructed by Defendants 7 to 10. 13. It is the Plaintiff's case that the structure came up on the suit plot of land on 29 th July, 2008. 14. The Plaintiff has produced 3 photographs to that end. The first photograph is dated 29.7.2008. It shows the 7 structure of patras sought to be put up on a part of the land where earlier the “existing chawl” was. The structure has no roof. It has 3 patra walls. The structure also has no wall on one side. 15. The Plaintiff has produced another photograph dated 30 th July, 2006. The entire patra shed is constructed and some patras constitute a roof. 16. The Plaintiff has produced a third photograph dated 17th August, 2008 in which a tarpolin is placed on the roof with some wooden makeshift weights thereon. The construction of the structure by patras is thus completed. It is a temporary structure used to store material during the construction. 17. Defendants 7 to 10 are seen to have put up the temporary construction for storing material in the open space between the two buildings on Plot No.14A and 14 B. The Defendants alone could have put up the patra structure shown in the Plaintiff's photographs. The structure is distinctly unauthorised. It is seen to be constructed only by putting up patras to constitute its walls and roof barely a month before this Notice of Motion came to be taken out. The Notice of Motion has been registered on 23rd August, 8 2008. The photograph of 17 th August, 2008 shows the patra shed and the building material thrown on the East side of the Plaintiff plot of land. It is this structure that the Plaintiff seeks to have removed in this Notice of Motion. The photographs of the Plaintiff show a portion left open in which the Defendants vehicles are parked. That is the space shown in the plan for the arterial road. 18. The Defendants seek to put up permanent construction also on the portion between the 2 buildings. It is incomprehensible how any construction can come up between these two buildings. Both the buildings require to have their separate compulsory open space for car parking and to be left open to the sky as per the DC Rules. An arterial road has also to be kept as shown in the plan. 19. The Defendants contend that the open space between the two buildings had a slum. That area was declared to be a slum under a notification issued under the Slums Act. That declaration has been recalled. However the Defendants contend that they have vacated the slum dwellers or the chawl occupants and given them temporary accommodation. Be that as it may, the Defendants cannot usurp and construct upon the space which is vacated by the slum dwellers or “the existing chawl”. Those were the 9 unauthorised structures which were required to be demolished before the suit plot as also plot No.334 (i.e. 14A and 14B) had to be developed. 20. Mr. Kini argued that the Plaintiff's plot is bounded by a compound wall, He drew my attention to paragraphs 13 and 18 of the plaint. The averments in paragraph 13 show the obligation of the owners to construct the compound wall around the said plot encompassing 1862sq. Yds = 1429.5 sq. mtrs. The averments in paragraph 18 of the plaint show that the compound wall which is constructed and is existing on the Plaintiff's plot is not as per the IOD and approved plan. The boundary wall was required to be constructed around the suit plot encompassing its total area of 1344.12 sq. metres to be developed and conveyed to the Plaintiff. 21. The Plaintiff has produced photographs showing the entire suit plot alongside Plot No.14B. The boundary wall which has been constructed next to the Plaintiff's Society building, which the Defendants rely upon, is seen to be constructed without leaving the compulsory open space on the Plaintiff's plot of land. It shows the wall constructed leaving the toilet block outside the wall. It is an admitted position that the toilet block is on the North- East side of the Plaintiff's plot of land. It is, therefore, easy to see that the 10 compound wall does not constitute the Eastern boundary of the Plaintiff's plot. It appears to have been put up only to prevent further encroachment since that portion of the plot No.333 had a number of unauthorised constructions. The averments in para 18 of the plaint are prima facie seen to be substantiated by the photographs. 22. The photographs show a large open space between the 2 buildings. The Plaintiff's building is on Plot No.14A; the building constructed by Defendants 7 to 10 is on Plot No.14B. The vacant plot in between the two buildings is shown to have the temporary structure of patras and a makeshift roof. It also has other building material thrown thereon. Construction is sought to be put up thereon. 23. The Plaintiff have shown their right, title and interest to the land below the shed constructed by Defendants 7 to 10. Hence, the contention of Defendants that the temporary shed of Defendants 7 to 10 is on plot No.334 or that it is outside the boundary of the Plaintiff's plot of land and outside the boundary wall and therefore the Plaintiff have no right, title and interest therein and hence, cannot ask for removal of the structure cannot be accepted. 24. Consequently primafacie case for grant of all the reliefs in the Notice of Motion is made out. The Plaintiff's Advocate 11 however, states that the Plaintiff does not press prayers (a), ( c) and (d)as these reliefs are pressed in an earlier Notice of Motion. The Plaintiff presses prayer (b) excluding the words “and toilet block”. 25. The portion of the Plaintiff's plot where the temporary shed is seen to have been erected on 29 th/30 th July, 2008 is the vacant plot of land. It is that vacant plot claimed by the Plaintiff upon the declaration sought in respect of the conveyance entered into by the Defendants 1 to 6 with Defendants 7 to 10. The temporary patra shed of Defendants 7 to 10 is required to be removed. Defendants 7 to 10 shall forthwith remove the temporary patra shed put up by them as also building material thrown near the shed. 26. This order is stayed till 17 th November, 2008. 27. The Notice of Motion No.4474 of 2006 which is the first Notice of Motion taken out by the Plaintiff has not been shown on board. It shall appear on board on 10th November, 2008. 28. Three small photographs and one big photograph bearing dates and signed by the Plaintiff Advocate are taken on record. 12 (SMT. ROSHAN DALVI, J.)