1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.564 OF 2006 IN WRIT PETITION NO.2848 OF 2005 Rijumal D. Jethani & Ors. ...Petitioners. v. State of Maharashtra and Ors. ...Respondents. Mr.H.J.Thakkar i/by Mahesh Thorat, advs. for the Applicant. Ms. Geeta Shastri AGP with Ms.M.Kanjale, AGP for the Respondent No. 1 Mrs.S.A.Module, for the respondent/BMC. Mr.Aspy Chinoy, Sr.Counsel i/by S.Ashwinikumar, advs. for the Respondent Nos.8 and 9. Purnima G. Bhatia, adv. for the Respondent Nos.4,5 and 6. D.H.Mehta i/by Pravin Mehta and Mithi and Co., advs. for the Respondent No.10. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : MARCH 9, 2010 P.C. 1 Petitioners when the petition was filed had sought interim relief in terms of prayer clauses (c), (d), (e),(f) and (g). This court while granting rule on 24th April, 2006 was pleased to refuse interim relief. That order was not challenged by the petitioners. 2 Petitioners thereafter took out Notice of Motion No.564 of 2006 by which on 18th January, 2008, this Court noted that the petitioner 2 would have to satisfy this Court regarding the maintainability of the petition in view of what is set out therein. 3 On 2nd May, 2008 this Court observed that if OC has not been granted as of today, it may not be granted till the next date of hearing by the Corporation. On June 17, 2008 motion was allowed in terms of the order of the Court dated 2nd May, 2008. 4 Respondent No.8 aggrieved by that order approached the Hon’ble Supreme Court by filing SLP. Leave was granted, which was numbered as Civil Appeal No.1369/2010. That came to be disposed off by the order dated February 2, 2010. In paragraph 7, the Hon’ble Supreme Court directed this Court to consider the matter afresh after considering the question of maintainability of the petition first. The Hon’ble Supreme Court further directed that the interim order, which had been passed on 2nd May, 2008 shall continue. It was further observed that if matter has not been finally disposed off as set out in the order , petitioners shall be at liberty to apply for extension of the order and such extension may be considered by this Court at its discretion. In paragraph 9, it is set out that the petition itself may be disposed off finally at the request of the parties. 5 This Court at this stage cannot consider the same 3 considering the heavy docket of this Court and as such, it will not be possible to dispose off the matter finally. 6 On behalf of the respondent no.8 the learned counsel submits that there is no change in the circumstances, warranting this Court to re-consider the issue granting same interim relief in the present motion. It is submitted that once this Court has declined to grant interim relief, it will not be open to the petitioners to take out fresh motion on the same cause. 7 On the other hand, on behalf of the petitioners, the learned counsel submits that this Court itself on 24th April, 2006 had granted liberty to amend the petition. Petitioners have so amended the petition and it is pursuant to the amendment that they have brought additional material on record and, therefore, the motion for interim relief. 8 On behalf of the Corporation, an affidavit is filed by S.R.Agarwal in which it is pointed out that according to them, construction has been in terms of the D.C. Regulations, which have not been violated. It is also pointed out that occupation certificate has not been granted as architect has not submitted building completion certificate. 9 Considering the above controversy, in our opinion, we will 4 have to first decide the preliminary objection as raised on behalf of the Respondent No.8. Once this Court has declined to grant interim relief in the matter of construction of building, it will not be possible to consider similar reliefs afresh, which this Court has earlier refused. It is only open to this Court to consider the reliefs in the motion provided there is change in the circumstances. In our opinion, prima-facie there is no change in the circumstances, warranting any relief except to the extent it may set out hereinafter. That additional material is brought on record is no ground as that material was available when the petition was filed and at any rate that cannot be a ground to contend that it amounts to change in the circumstances. 10 In so far as prayer clause (a) is concerned, building is completed. Affidavit is filed to show that 22 new shops have been transferred and sold to third parties. Prayer clause (b) in the matter of granting occupation, is , in our opinion, within the jurisdiction of the respondents, Corporation/Planning Authority. It is for the authority concerned to consider the same according to law. 11 Prayer clause (c) was in the matter of parting with possession, alienating and/or creating any third party interest. In our opinion, once interests have been created, it will not be possible for us to 5 grant blanket relief as presently sought. However, considering the facts and circumstances, if any further third party rights are created from today, it will be subject to the final order in this petition. 12 In so far as the prayer clause (d) is concerned, in our opinion, leave can also not be granted. If according to the petitioners there is any fresh violation or fresh construction which is not in terms of the approved plan, that can be brought to the attention of the concerned Municipal/Planning Authority. It is for them to take action as per law. 13 The learned counsel seeks continuation of the order dated 2nd May, 2008. In our opinion, no case is made out considering the affidavit filed by the Municipal Corporation. Application for stay stands rejected. (J.H. BHATIA,J.) (F.I. REBELLO,J.)