Writ Petition No. 1170 of 2010. Case: Radhika Property Developers Pvt. Ltd., A company incorporated under The Companies Act, 1956 Vs Ahuna T.P.Z.A. Cooperative Housing Ltd., a Society registered under the Maharashtra Cooperative Societies Act, 1960 and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 1170 of 2010 |
| Counsel | For Appellant: P.K. Dhakephalkar, Sr. Counsel and Sanjay Borkar, Adv., i/b., Kailas Dewal, Adv. and For Respondents: E.P. Bharucha, Sr. Counsel, i/b., V.P. Sawant, Adv., S.S. Kanetkar, Adv. and A.P. Vanarse, AGP |
| Judges | Anoop V. Mohta, J. |
| Issue | Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 7 and 7A; Civil Procedure Code (CPC) - Order 39, Rules 1 and 2; Constitution of India - Article 227 |
| Judgement Date | April 21, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
Anoop V. Mohta, J.
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Rule, returnable forthwith. Heard finally by consent.
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The Petitioner has invoked Article 227 of the Constitution of India and thereby challenged the impugned judgment and order dated 07.01.2010 passed by the learned Principal District Judge, Thane in Misc. Civil Appeal No. 66 of 2009 in Regular Civil Suit No. 733/2008, whereby granted an ad-interim relief/injunction in the following words:
Appeal is hereby allowed.
Order dt.25.3.2009 rejecting Exh. 5 in RCS No. 733/08 by Jt. Civil Judge, S.D., Thane is hereby set aside.
Exh. 5 is hereby allowed and respondent No. 1/defendant No. 1 is hereby injuncted temporarily, or for that matter, pending hearing and disposal of the suit from proceeding with construction of proposed building in remaining portion of plot over CTS Nos. 57A and 85B.
In the peculiar circumstances of this matter, parties are, however, left to bear their own costs.
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Cawasji Beharamji Divecha Trust, (respondent No. 5) (the Trust) is owner of 8593.28 sq.mt. Of land out of City Survey No. 57-A, 85-B, 88, 89 and 90, Tikka No. 11, situated at Charai, Panchpakhadi, Thane (the property).
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By an Agreement dated 02.02.1988, the petitioner/developer agreed with the Trust (respondent No. 5) to develop the larger property and accordingly, entered into an Agreement after obtaining the requisite permission from the Charity Commissioner. The same was challenged in Writ Petition No. 1041/1989 by respondent No. 3-The Thane Parsi Zoroastrian Anjuman. However, the parties settled the matter by Consent Terms (the Consent terms) on 30.04.1991. The petitioner/developer agreed to provide/construct a building of 33,000 sq.ft. On City Survey Nos. 57-A and 85B (the suit property) for the Zoroastrian community. The plan was submitted by the petitioner/developer was approved on 20.04.1992. Various separate Agreements entered into with the members of the community for sale of flats in the building to be constructed in the year 1992 itself. The building named as "Ahuna"-respondent No. 1(original plaintiff). The respective members/persons formed the plaintiff/society and occupied their respective flats and enjoying all the facilities and the area as per the Agreements accordingly. The petitioner is under obligation to execute Conveyance, subject to cooperation from all members, as per the Consent Terms and the Agreements as claimed after completion of the construction on the property. The petitioner, as permitted, submitted and got the Plan sanctioned in the year 1992 of the proposed suit building to the west of the Ahuna building. As per the Consent Terms, Ahuna building was to be constructed on 20,000 sq.ft. Of land demarcated and it was constructed accordingly. All the parties have full knowledge of the area, flat and their respective rights to use and utilise the flats and the surrounding area.
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Respondent No. 2-The Municipal Corporation supported the fact that the Plans as approved are legal and valid. Respondent No. 3 (defendant No. 3) supported the original plaintiff. Mr. S.S. Kanetkar, the learned Counsel for respondent No. 3 and adopted the same line of arguments of Mr. Bharucha, the learned senior Counsel for respondent No. 1.
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Admittedly, based upon the Consent Terms, the parties proceeded to develop the particular plot/area. The Consent Terms provide various clauses giving various rights and obligations of the respective parties. Those includes to develop and construct building on other remaining portion of the land. There is no dispute that the subject matter of the Consent Terms refers to total admeasuring area of about 8593.28 sq.mts. together with the buildings and structures standing therein.
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There is no dispute that based upon the said Consent Terms, after getting the approval and commencement certificate in the year 1992 constructed two buildings viz. "Sheetal" on Survey No. 88 and "Gautam Sagar" on Survey Nos. 89 and 90, based upon the Sanction dated 22.09.1987 and 09.08.1994. It was never agreed that development should be made on the plot at one phase. It was the petitioner's choice and right to construct and develop rest of the property.
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For the plaintiff's society, a plan was sanctioned some time in the year 2001 and the construction was completed in the year 2004. Hence, there is no dispute that apart from the Consent Terms, individual Agreements have been entered into by the plaintiffs members with the petitioner/builder in the year 1992 itself, which also refers and provides various clauses of the Consent Terms. The rights of the builder as well as member of the plaintiff/society have been clearly demarcated and...
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