Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 21996 OF 2022
ALONGWITH
INTERIM APPLICATION (L) NO. 34250 OF 2022
M/s. Bombay Pharmaceuticals Works )
Pvt. Ltd. )
Through its Director Nitin Asaria Vador, )
Having registered office at )
96, Mathura Bhavan, Dadasaheb Phalke )
Road, Dadar (E), Mumbai – 400 014 ) ….. Petitioner
Through its Urban Development Department) having its office at Mantralaya, )
Mumbai – 400 032 )
2. Brihanmumbai Municipal Corporation,)
Through its Commissioner having office at)
Mahapalika Bhavan, Mahapalika Marg, )
Fort, Mumbai – 400 001 )
3. Dy.Chief Engineer (Building Proposal))
Having its office at Dy.Ch. Eng.(BP), )
Near Doasti Apartment, Barkatali Darga Road,)
Wadala, Mumbai )
4. Dy. Municipal Commissioner (II), )
F/South Ward Office, Dr.B.A.Road, )
Parel, Mumbai – 400 012 )
5. Asst. Commissioner ‘F/S’ Ward, )
F/South Ward Office, Dr.B.A.Road, )
Parel, Mumbai – 400 012 )
6. Executive Engineer MHADA, )
“G/N” Ward, M.B. R&R. Board, )
Opp. 42nd
M.M. Court, Shinde Wadi, )
Dadar, Mumbai – 400 051 )
7. Mathura Bhuvan Co.op. Hsg. Society )
(Proposed), )
“Mathura Bhuvan” situated at )
96, 96-B, 96-F, 96-G 96-H, )
Dadasaheb Phalke Road, )
Dadar (East), Mumbai – 400 014 )
8. M/s. U.H.Pandaya & Associates Land )
Developers )
Registered Office at )
P.D.Singh Compound, Walbhat Road 21, )
Cama Industrial Estate, )
Goregaon (East), Bombay – 400 063 ) ….. Respondents
Dr.Birendra Saraf, Senior Advocate, a/w. Mr.Prathamesh Bhargude, Mr.Gurubala Birajdar for the Petitioner.
Mr.Abhay Patki, Additional Government Pleader for the State -
5.
Mr. S.S.Redekar for the Respondent no.7.
Mr.Jeetendra Ranawat, i/b. Mr.Waquar Ahmad for the Respondent no.8.
JUDGMENT
2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks writ of mandamus and seeks directions and injunction against the respondent nos. 1 to 5 from granting any permissions, certificates etc. in respect of the constructions going in the compound known as ‘Mathura Bhuvan’ being plot nos. 96, 96-B, 96-F, 96-G and 96-H corresponding C.S.No. 86, 1/86 of Dadar Naigaon Division at Dadasaheb Phalke Road, Dadar (East), Mumbai – 400 014, till execution and registration of agreement for permanent alternate accommodation with the petitioner in respect of the writ premises, in lieu of existing premises and free of cost as per the condition of I.O.D./ C.C. dated 8th July, 1992.
3. Interim application is filed inter alia praying for an injunction KVM restraining the respondent no.8 from creating any third party rights and handover the physical possession of the writ premises i.e. first floor 2 units and entire 2 and 3 floor in new building as per plan approved by the respondent nos. 2 to 5 to any third party, which is reserved for the petitioner and from parting with possession of the writ premises to third party.
4. Some of the relevant facts for the purpose of deciding this petition are as under:-
5. There are 70 occupants of the building Mathura Bhuvan who proposed to form a society under the name of Mathura Bhuvan Cooperative Housing Society (Proposed). Name of the petitioner is included in the list of the said proposed society. It is the case of the petitioner that on 5th March, 2021, since the writ property was dilapidated, the respondent no.7 society allotted development rights on behalf of all the members to the respondent no.8 by entering into an Agreement for Development on 18th June, 2010.
6. On 7th March, 2021, the respondent no.8 submitted a KVM redevelopment proposal to MHADA. The MHADA directed the respondent no.8 to rehabilitate the existing members including the petitioner in the redevelopment of the project submitted under regulation 33(5) of the Development Control Regulation, 1991 (for short DCR 1991). The respondent no.3 thereafter granted further approval to the plans submitted for the proposed Wings ‘C’ and ‘D’, which were to be constructed for rehabilitation purpose.
7. It is the case of the petitioner that it approached the respondent nos. 2 to 5 with representations dated 14th February, 2022 and 6th April, 2022 requesting to get compliance of the condition of IOD from respondent no.8 or issue directions for execution and registration of an agreement with the petitioner. The petitioner also made a representation through its advocate on 28th January, 2022 and 14th February, 2022 to the respondent no.7 and requested to look into the matter and do the needful.
8. The respondent no.7 by its letter dated 11th March, 2022 gave vague answer that the society had issued Notice dated 10th October, 2018 through their advocates thereby terminating the agreement dated KVM 8th August, 1991 and Confirmation Deed dated 2nd July, 2010 which were executed in favour of the respondent no.8.
9. It is the case of the petitioner that though the petitioner through its advocates’ letter dated 14th February, 2022 called upon the respondent no.8 for the registration of the said Agreement for Alternate Accommodation, the respondent no.8 deliberately avoided to enter into any such agreement. The petitioner accordingly issued a notice dated 30th March, 2022 through its advocate to the respondent no.8 and to respondent nos. 2 and 3 by letter dated 6th April, 2022.
10. The respondent no.8 replied by its advocate’s letter dated 5th April, 2022 and pointed out a typographical error in the notice issued by the petitioner’s advocate and stated that as per the record of their client, there was no tenant in their premises by the name of ‘Bombay Pharmaceuticals Pvt. Ltd.’ but there was one company called ‘Bombay Pharmaceuticals Works Pvt. Ltd.’
11. The petitioner applied for interim relief before the Vacation Court on 2nd November, 2022. Learned counsel for the respondent no.8 KVM made a statement that till the next date, the respondent no.8 shall not create any third party rights on 2nd and 3rd floor of the subject premises. The matter was thereafter adjourned to 14th November, 2022.
12. Dr.Birendra Saraf, learned senior counsel for the petitioner invited our attention to some of the documents annexed to the petition and submitted that at one stage, the petitioner company was in liquidation but is now revived. It is submitted that the respondent no.8 had submitted redevelopment proposal for four buildings i.e. buildings A to D on the basis of the demolition of the existing premises. Out of the four buildings, two buildings i.e. C and D are proposed on the land underneath to the existing premises for rehabilitation of the respondent no.7. The MHADA had granted necessary NOC on 27th April, 1992 along with list of eligible members in the redevelopment project and directed to make the arrangements of all the occupiers in the new constructed building before obtaining occupation certificate from the Corporation.
13. Learned senior counsel invited our attention to the IOD dated 23rd November, 1996 and submitted that it was clearly provided that KVM respondent no.8 shall not submit application to get commencement certificate in respect of the further construction on the existing premises until submission of all agreements for permanent alternate accommodation with all the members along with copy of approved plan showing a provision for accommodation of the said members in accordance with the provisions of DCR, 1991. He submitted that the respondent no.8 was bound to submit registered agreement for Permanent Alternate Accommodation with all the members to get full completion certificate in respect of sale area.
14. It is submitted by the learned senior counsel that the respondent no.8 has not even paid the rent against the possession of the existing area of the petitioner delivered to the respondent no.8. The respondent no.6 has already granted No Objection Certificate to occupy Wings ‘C’ and ‘D’ of newly constructed building by existing 70% tenants/occupants on the other terms and conditions mentioned therein.
15. It is submitted by the learned senior counsel that the respondent no.6 has extended the said NOC dated 27th April, 1992 from time to time on the request of the respondent no.7. It is submitted that the KVM respondent no.8 has committed violation of the IOD conditions. The respondent no.8 has not entered into any permanent alternate accommodation agreement with the petitioner in respect of the tenements, the respondent no.8 is liable to handover to the petitioner. He submitted that the name of the petitioner is already included in the certified list of tenants in his various documents.
16. It is the case of the petitioner that the respondent no.6 has informed the respondent no.5 that Full Occupation Certificate shall not be granted to the NOC holder under any circumstances, to insure all the occupants of old building are rehoused.
17. Learned senior counsel for the petitioner invited our attention to the revised development plan and submitted that at serial no.6, the area of the structure sanctioned against the name of the petitioner was 87.78 sq. mtrs. which is the built up area demarcated for the petitioner. He submitted that in the notice given to the respondent no.8 by the petitioner, the name of the petitioner was inadvertently mentioned which was corrected subsequently. KVM
18. Learned senior counsel for the petitioner submits that since the respondent no.8 has not entered into any permanent alternate accommodation agreement with the petitioner as per the sanctioned plan before the area was sanctioned in the second development plan earmarked for the petitioner, the respondent no.8 cannot apply for commencement certificate or any other permission in accordance with the previous IOD.
19. Learned counsel for the respondent no.8 on the other hand submits that the writ petition is not maintainable as there are disputed questions of facts. He submitted that the petitioner company belongs to Mr.Suresh Bhagat. The respondent no.8 had spent substantial amount on revival of the petitioner company. He invited our attention to the prayers in the interim application and submitted that since the prayers in the interim application are not prayed in the writ petition, the interim application is not maintainable on this ground itself.
20. Learned counsel for the respondent no.8 invited our attention to the order dated 12th June, 2019 passed by a Division Bench of this KVM Court and particular paragraphs 5 and 6 and also an order dated 8th October, 2003 in the interim application and submitted that in accordance with the said two orders passed, the respondent no.8 is not liable to hand over possession of more than 6500 sq. ft. area to the petitioner. He relied upon the MOU entered into between his client and a third party.
21. It is submitted that in any event since the respondent no.8 has received certain claims for the property demanded by the petitioner, the respondent no.8 is not liable to provide any property to the petitioner. If this Court comes to the conclusion that permanent alternate accommodation agreement has to be executed by the respondent no.8 in favour of the petitioner for the area sanctioned in the second building plan, this Court may clarify in the order that it would be subjected to the claims of the third party and the respondent no.8 will not be responsible.
22. Insofar as the submission of the learned counsel for the respondent no.8 that the interim application made by the petitioner is KVM not maintainable on the ground that those prayers are not part of the writ petition is concerned, a perusal of the prayers in the writ petition indicates that the petitioner has prayed for a writ of mandamus against the respondent nos.[1] to 5 from granting any permissions, certificates etc. in respect of the constructions going in the compound known as “Mathura Bhuvan” till execution and registration of the agreement for permanent alternate accommodation with the petitioner in respect of the writ premises, in lieu of the existing premises free of costs as per the condition of IOD / CC dated 8th July, 1992. The petitioner has also prayed for an order and injunction against the respondent nos.[1] to 5.
23. In prayer clause (c) of the petition, the petitioner has prayed for an injunction against the respondent no.8 from carrying out any further construction in the compound known as “Mathura Bhuvan” till execution and registration of the alternate permanent accommodation with the petitioner in lieu of the existing premises.
24. In the interim application, the petitioner has prayed for an injunction against the respondent no.8 from creating any third party KVM rights and to hand over physical possession of the writ premises i.e. 1st floor, 2 units and entire 2 and 3 floor in the new building as per the plan approved by the respondent nos.[2] to 5. Since both the parties have argued the writ petition itself finally, we are not required to go into the prayers of the interim application. Be that as it may, the prayers in the interim application are consequential prayers to the prayers for injunction sought already in the writ petition against the respondent no.8.
25. We are not inclined to accept the submission made by the learned counsel for the respondent no.8 that his client has interest in the petitioner company. Learned counsel for the respondent no.8 could not demonstrate any such alleged right, title or interest of any nature whatsoever in the petitioner company. The respondent no.8 has been appointed as the developer for carrying out redevelopment of the writ property along with larger area. The petitioner company was revived pursuant to the order of the Company Court and has rightly filed this writ petition for various reliefs. KVM
26. Learned counsel for the respondent no.8 could not dispute that the name of the petitioner company was mentioned in the certified lists of the tenants and also in various plans sanctioned by the Municipal Corporation submitted by the respondent no.8 from time to time. The area claimed by the petitioner in lieu of the existing tenements in possession of the petitioner is also earmarked from time to time. The respondent no.8 thus cannot be allowed now to contend that the respondent no.8 at most is liable to enter into an agreement for Permanent Alternate Accommodation Agreement only for 6500 sq. ft. area and not more than the said area. In our view, the submission made by the respondent no.8 is contrary to the sanctioned plan obtained by the respondent no.8 itself.
27. Insofar as the submission of the respondent no.8 that there are claims received from his client on the property claimed by the petitioner and thus if this Court directs the respondent no.8 to enter into Permanent Alternate Accommodation Agreement with the petitioner in respect of the sanctioned area and earmarked for the petitioner is concerned, the respondent no.8 could not produce any such claim received by the respondent no.8 in respect of property earmarked for KVM the petitioner before this Court. Be that as it may, the respondent no.8 may clarify the claim received by it, if any, in the Permanent Alternate Accommodation Agreement. Learned senior counsel for the petitioner has no objection if any such claims are referred in the said agreement. If any third party claims are received from the third party, the petitioner would deal with the said claims on its own merits and in accordance with law.
28. Learned counsel for the respondent no.8 could not dispute that under condition 8(x), the respondent no.1 was allowed to apply for full commencement certificate only after execution of the registered Agreement for Permanent Alternate Accommodation in respect of the ongoing construction of sale area. The petitioner vacated their respective structures. The Municipal Corporation however, continued to issue commencement certificate without the respondent no.8 having complied with the said condition of IOD. In our view, the said condition is binding on the respondent no.8. The Municipal Corporation could not have issued full completion certificate till condition no.(x) would have been complied with by the respondent KVM no.8.
29. This Court has already recorded the statement made on 2nd November, 2022 in the Interim Application (Lodging) No.34250 of 2022 that the respondent no.8 shall not create any third party rights and hand over physical possession of the subject premises. The premises on second and third floor however are not the subject matter of the Agreement to be entered into by the respondent no.8 in favour of the petitioner.
30. In our view, the petitioner has thus made out a case for grant of reliefs in terms of prayer clauses (a) and (b) of the petition. The Permanent Alternate Accommodation Agreement shall be executed by the respondent no.8 in favour of the petitioner in terms of prayer clause (a) in the Interim Application (L) No.34250 of 2022 in respect of the writ property within four weeks from today, duly registered, without fail. It is made clear that if there are any claims that would be received by the respondent no.8 in respect of writ property, earmarked in sanctioned plans in file No.CHE/CITY/1700/F/S/337 (New) dated KVM 12th December, 2018 and Proforma B dated 17th January, 2018, such claims are to be communicated to the petitioner by the respondent no.8. The adjudication of such claim, if any, would be on its own merits.
31. We accept the statement made by Dr.Saraf, the learned senior counsel for the petitioner that such claims may be referred in the Permanent Alternate Accommodation Agreement to be entered into between the petitioner and the respondent no.8 in respect of the writ property more particularly mentioned in sanctioned plans in file No.CHE/CITY/1700/F/S/337 (New) dated 12th December, 2018 and Proforma B dated 17th January, 2018.
32. Till such time the Permanent Alternate Accommodation Agreement is entered into between the petitioner and the respondent no.8, ad-interim reliefs granted by this Court on 2nd November, 2022 in this writ petition and the interim application to continue in terms of prayer clause (a) of the Interim Application No. 34250 of 2022.
33. The Writ Petition (Lodging) No.21996 of 2022 and Interim KVM Application (Lodging) No.3425 of 2022 are disposed of in aforesaid terms. There shall be no order as to costs. Parties to act on the authenticated copy of this order. [KAMAL KHATA, J.] [R. D. DHANUKA, J.]