1 nms2687-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2687 OF 2009 WITH NOTICE OF MOTION NO.949 OF 2009 IN SUIT NO.1907 OF 2009 Kamgar Panchganga Chs.Ltd. .. Plaintiffs Vs. Neptune Builders And Developers and Ors. .. Defendants Mr.P.M.Shah for the plaintiffs Mr.Shailesh Shah a/s Ms.Usha Rahi i/b Mr.Mayur Narendra for defendant nos.1 and 2 CORAM : S.C.Dharmadhikari, J. DATE : December 8, 2010 P.C. : 1. These motions were argued substantially and during the course of arguments my attention was invited by Mr.P.M.Shah appearing on behalf of the plaintiff that 28 flats which are stated to be reserved for the members of the Co-operative Society (Plaintiff) would be available in a building which is to be constructed on CTS 241. However, there are other plots belonging to the society where the defendant builder has undertaken construction activity, purportedly for rehabilitation of slum dwellers, so also, proposing 2 nms2687-09 construction of flats for the cooperative society i.e the plaintiff and that would be in terms of the original agreement dt.11.4.94. 2. At that time, Mr.Shailesh Shah appearing on behalf of defendant no.1 and 2 had stated that presently the construction activity on this plots have been stopped because of the stop work notice and in any event the original agreement of 1994 has been altered and modified by the subsequent agreement of 2001 and 2005 which are styled as supplemental agreements and they have been impugned and challenged. However, with a view to satisfy the court that defendant nos.1 and 2 are acting bona fide and that there are no flats which are available for housing the members of the plaintiff society on plots other than CTS No.241 and particularly referred to in prayer clause (e) of the Notice of Motion, he sought leave to file further affidavit. Liberty was given for filing the same and the matter was placed on 30.11.2010 on which date the affidavit which was received from the defendant nos.1 and 2 could not be perused and any response thereto was not filed. Therefore, at the request of the plaintiffs advocate and to enable them to file an affidavit dealing with the additional affidavits, time was given till today. 3. Today Mr.P.M.Shah appearing on behalf of the plaintiff tenders an affidavit of Mr.Manoj Shantaram Surve, the Hon. Secretary of the plaintiff wherein he states that modus operandi of the builders is such that his statements made on oath in the additional affidavits cannot be relied upon. Earlier, it was 3 nms2687-09 stated that the ground + 7 upper floors can be constructed comprising of 58 tenements. However, subsequently, plans were put up for 9 storey building. In such circumstances, whether the construction is going to be carried on under the original plan or the amended plan has not been clarified and therefore, this court should not permit the defendants to complete the construction on the plots, other than CTS No.241 but direct them that 28 flats should be ear marked and if they are complying with this direction, then only construction may be permitted. 4. Having perused the additional affidavit filed by defendant nos.1 and 2 together with the Annexures, it is clear that the scheme for redevelopment as set out in para 2 of the affidavit of Yogendra Pitamberdas Doshi was submitted and the SRA has issued Annexure 2 on 19.6.04. Thereafter it is stated that construction commenced but there was change of policy and now defendant nos.1 and 2 have to provide 269 sq.ft. of area to the slum dwellers and the project affected persons instead of 225 sq.ft. That necessitated amendment to the plans and it has been pointed out as to how finally the number of tenements of 58 is arrived as per the schedule annexed as Annexure 7 to the affidavit. In the light of this, it is stated that the original proposed plan is of 86 tenements, the first amendment plan is of 70 tenements, and the presently approvable plan is of 58 as per the schedule. 5. If this schedule is taken into account, it is clear that there are no 4 nms2687-09 flats/tenements which defendant nos.1 and 2 can sell or allot to the plaintiff society in this project. However, it is contended that this does not reflect the correct decision and time and again the defendant nos.1 and 2 shift their stand and may be the disclosures made today are not final. 6. It is urged that there are attempts made to take away the entitlement of the plaintiff society relying upon the subsequent amendment but when the plaintiff society has been waiting for permanent alternate accommodation for its members from 1994, this court should block the scheme in other plots and allow the developer to proceed only if the entitlement of the plaintiff of 28 flats is protected. 7. In my view at this prima facie stage, it would not be proper to deprive the slum dwellers who have been found to be eligible by SRA of their entitlement under Slum Rehabilitation Scheme. More so, when that scheme has not been made subject matter of challenge. 8. The persons who are beneficiary under the scheme and even the SRA is not before this court today. A distinct scheme s implementation, cannot be ’ stopped or its progress interfered with or else, prejudice that would be caused to the parties under that scheme would be tremendous. It means the plaintiff is claiming 28 flats on a plot of land other than CTS 241 (part) but there is a controversy as to whether that entitlement subsists in the light of the original or supplemental agreement. In my view, this motion 5 nms2687-09 can be disposed of by continuing the ad interim order made by this court and in the addition directing that if the scheme implemented on land bearing CTS no.116, 117, 118, 561 (Part) and 130(Part) results in any additional flats under free sale component being available which are other than disclosed in affidavit of Yogendra Pitamberdas Dosi affirmed on 23.10.10 and particularly Annexure 7 thereof, then, these flats should not be disposed of ‘ ’ or transferred by defendant nos.1 and 2 unless they are first offered to the members of the plaintiff society. 9. Mr.P.M.Shah, learned counsel for the plaintiff submits that the ad-interim does not protect adequately the interest of the plaintiff because if there is an undertaking given that 28 flats will be available in next 3 years, there is no guarantee that the same would become available. 10. At this stage Mr.Shailesh Shah, learned counsel appearing on behalf of defendant nos.1 and 2 on taking instructions from defendant nos.1 and 2 states that 90% of the transit accommodation have been constructed and soon the occupants from the plot CTS No.241 (part) would be shifted to the transit accommodation. Further Rs.10 lacs are already paid for transit accomodation. In such circumstances, defendant no.1 would make endeavour to complete the construction on CTS 241 (part) and make available the 28 flats as undertaken and within the time specified and the apprehension is therefore, unfounded. 6 nms2687-09 11. In my view, at this stage the ad interim order with the above statements sufficiently protects the plaintiff. In fact the grievance of Mr.Shailesh Shah appearing for defendant nos.1 and 2 is that the plaintiff cannot be held to be entitled to any flats on the plots which are part of the SRA (scheme of redevelopment) without their entitlement being proved by them. They would be getting the benefit as the court is directing defendant nos.1 and 2 to make available the flats from the Slum scheme to the members of plaintiff society. That would work injustice and would indirectly mean that the plaintiff is entitled to the flats on this plot. I do not see how the direction issued by itself can be construed as to conferring any right on the plaintiffs. These are tentative and prima facie, observations and directions. It is only in the event that if the flats become available that the question of giving them to the plaintiff society would arise. As of now, the defendant nos.1 and 2 state that nothing has been brought on record which would indicate that such flats will be available. I have accepted the statements made by defendant nos.1 and 2 on affidavit and therefore, the apprehension as expressed by Mr.Shailesh Shah is unfounded. The court can balance equities and if some flats become available on the plots which are part of the Slum Rehabilitation Scheme, the court will release defendant nos.1 and 2 from their undertaking if any request is made in that behalf. Therefore, both sides can seek such directions in equity as are permissible and there is no question of any issue being concluded by this order. 12. In the light of the above, both the Notice of Motions are disposed of in 7 nms2687-09 terms of the order dt.23.11.10 and that made today. ( S.C.Dharmadhikari, J. )