NMS316-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.316 OF 2009 IN SUIT NO.134 OF 2009 Oyster Shipmanagement Pvt.Ltd. & Ors. ... Plaintiffs Versus M/s.Bhavsar Construction Co. Pvt. Ltd. And Others. ... Defendants Mr.J.P.Sen with Ms.Neeta Solanki i/b. Kiran Jain & Co. for plaintiffs Ms.Kiran Bagalia for MMRDA Ms.S.U.Masurkar with Ms.Bharti Bhagwat for defendant Nos. 4 to 6 CORAM : S.C.DHARMADHIKARI, J. DATE : 2nd December 2010. P.C.: 1] This is a notice of motion for interim reliefs, moved by the plaintiffs in a suit seeking a declaration that they are purchasers of the respective units as per the schedule annexed to the plaint being Annexures C-1 to C-7 in the commercial complex to be constructed on the suit plot. 2] The plaintiffs state that the contesting defendant No.1 M/s.Bhavsar Construction Company Pvt.Ltd. and defendant Nos. 2 NMS316-09 2 and 3 who are the Directors/ authorised representatives thereof claimed to be lessees of the suit plot. They claim a lease of this property from defendant No.14 MMRDA. The lease in favour of defendant No.1 was for development of the property for construction of commercial complex. Defendant No.4 is a partnership firm of which defendant Nos. 5, 6 and 7 are partners. It is stated that defendant Nos. 4 to 7 have arrived at some arrangements with defendant Nos. 1 to 3 for development of the suit property. Similarly defendant No.8 is also a firm carrying on development activities through defendant No.9 and defendant Nos. 8 and 9 have entered into certain arrangement with defendant Nos. 1 to 7 with regard to the suit property for construction thereon. Now the defendant No.8 has been converted into a firm consisting of defendant Nos.9, 9A, 10 and 11 as its partners and are stated to have entered into a joint venture agreement dated 10th May 2001 once again with defendant Nos. 1 to 3. 3] It is alleged that defendant Nos. 12 and 13 in violation of all statutory provisions constructed a residential building on the suit property and illegally inducted certain persons therein. Defendant No. 14 is the MMRDA, a Government of Maharashtra undertaking and defendant No.15 is an authority under the Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. NMS316-09 3 4] Plaintiffs have set out in details as to how they were induced into entering into agreements with defendant Nos. 1 to 3, who claim to be lessees and having an existing lease from MMRDA. Plaintiffs have pointed out as to how in furtherance of such inducement and assurances each one of them parted with huge sums in anticipation that they would be put in possession of the Commercial structure/ shops. Although, defendant Nos. 1 to 3 were to develop the property, they have not done so and several arrangements are pleaded to which the plaintiffs state that they have not been a party nor are they to their knowledge. The details could be gathered from the documents produced and that is how the plaintiffs have stated that for some time the property was under attachment by defendant No.15. Thereafter, in proceedings and particularly in appeal the said attachment has been raised. It is pointed out by referring to certain photographs that on this property, there is an illegal and unauthorised building. That building has no approvals from either the Municipal Corporation or the MMRDA. It is alleged that despite this, certain persons have been inducted therein. 5] My attention has been invited by Mr.Sen to the photographs and it is contended that there are encroachments on the property and particularly on the vacant portion. He submits that bearing in mind the controversy and the claim in the suit, mere confirmation of the order of injunction would not suffice. This is a fit case where it is just NMS316-09 4 and convenient that a Court Receiver High Court, Bombay is appointed as Receiver of the suit property. 6] This request is not opposed seriously by the defendants who are appearing through their respective Counsel. 7] The plaintiffs have filed further affidavit pointing out as to why it is just and convenient to appoint Court Receiver. This further affidavit is affirmed on 2nd February 2009. They have also filed an affidavit in rejoinder to the affidavit filed in reply by defendant Nos. 4, 5 and 6. 8] Original defendant Nos.1, 2 and 3 so also other defendants are duly served. Barring the above affidavits and that of the MMRDA, there are no affidavits filed in reply to this notice of motion. The MMRDA in the affidavit in reply has clarified that it is a special planning authority for the area and as per the sanctioned plan the suit property was acquired and on 21st April 1995 an agreement of lease was executed in favour of defendant No.1. Ms.Bhagalia on instructions states that in pursuance of the scheme implemented under the Maharashtra Regional and Town Planning Act, the property in question is a final plot which is allotted to the owner as per the sanctioned scheme. However, the owner came forward to execute the a lease deed as a lessee of MMRDA and that is how the MMRDA NMS316-09 5 executed lease deed. It also granted certain permissions and approvals. However, it noted that the construction work proceeded up to plinth level. Thereafter a check and inspection was undertaken at which it was found that there were few changes made. The MMRDA in para 6 and 8 of this affidavit has stated as under:- “6. MCGM by its letter dated 20/9/2005 informed MMRDA that – MCGM had granted C.C. Upto top of basement on 22/5/2000. Further, C.C. Was not granted by MCGM. In a letter received by MCGM from Architect A.V.Vora it was mentioned that the work beyond top of basement was carried out without his supervision. The concerned developers had framed forged document of CC for which MCGM was thinking for lodging a complaint against developer. MCGM had also prosecuted the developers under section 53 of MRTP Act, 1966 on 5/8/2005 for work carried out beyond approval and beyond CC. MCGM therefore informed MMRDA not to approve/ grant/ sanction any proposal on plot under referenece until the work carried out beyond approval is completely regularised and the matter of forged document is sorted out finally. From the above, it is clear that the building constructed on the suit plot is unauthorised building.” NMS316-09 6 “7. Meanwhile, Mr.Nilesh Tanna, Proprietor of the M/s.Tanna Construction Company by letter addressed to the Hon.Chief Minister of Maharashtra stated that his company acquired development rights for the above mentioned project in July 2000. MMRDA by its letter dated 6/10/2005 requested Mr.Tanna to furnish a copy of the permission granted by MMRDA for such transfer and receipt of the payment made to this office towards the transfer fee payable to MMRDA for such transfer. No reply to this letter was received from Mr.Tanna.” “8. The plaintiffs claim that by virtue of the amounts alleged to have paid by the plaintiffs to the developer under the allotment letters, the plaintiffs have a charge on the property. I emphatically deny that any such charge can be claimed on the land belonging to MMRDA. The plaintiffs have no rights whatsoever over the land belonging to MMRDA. The plaintiffs have no privity of contract with MMRDA. MMRDA is entitled to re-enter the land and terminate the licence of the developer.” 9] Further, in the affidavit MMRDA has clarified that the construction at site has not been authorised or permitted by it. The NMS316-09 7 building constructed on the plot is unauthorised. 10] The matter was argued and placed for orders today. The adjournment was granted only to enable Ms.Bhagalia appearing for MMRDA to seek instructions as to whether in these facts and circumstances and particularly in the light of the contents of the affidavit filed on 24th October 2010 filed by MMRDA whether MMRDA is desirous of re-entering the land and until such re-entry safeguard and protect the property. On instructions she makes a statement that MMRDA is not interested in re-entering the land. MMRDA would not however oppose appointment of Court Receiver, High Court, Bombay as a Receiver of the property. 11] After having heard learned Counsel appearing for parties at great length and finding that the position as set out by the MMRDA in its affidavit and the contents of further affidavit filed by the plaintiffs, demonstrate that it is just and convenient to appoint Court Receiver, High Court, Bombay as receiver of the said property. The motion is, therefore, made absolute in terms of prayer clause (a). Until the Receiver takes possession, there will be an injunction in terms of prayer clause (f). 12] It is clear that the Court Receiver will be appointed of the land and structure which is an unauthorised structure. Further, the land is NMS316-09 8 stated to be encroached and the encroachments are increasing day by day. It is for this additional reason as well, I am appointing Court Receiver of the suit property. However, upon his appointment and taking possession, Receiver will have to carry out survey and measurement of the land as part of it is open and vacant. In such circumstances, all statutory authorities, including the MMRDA should render assistance to the Court Receiver in carrying out measurement and survey of the land. Further, Mumbai Municipal Corporation, office of the Collector Mumbai Suburban district and local police station to render such assistance as is necessary to the Receiver to carry out survey and measurement and put up a fencing and compound wall. Mr.Sen submits that at the first instance the Costs, charges and expenses for this exercise will be undertaken by the plaintiffs, subject to final orders and directions in the suit. 13] Notice of Motion is made absolute in the above terms. No costs. (S.C.DHARMADHIKARI, J)