Bombay High Court
Shri. Sunil Vishwanath Madavi And Anr vs The Chief Secretary, State Of ... on 30 March, 2021
Bench: S.J. Kathawalla, Milind N. Jadhav
Swaroop Digitally signed
by Swaroop S.
S. Phadke
Date: 2021.04.02
Phadke 17:33:52 +0530
1 / 7 17-WP-833-2019__02.04.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 833 OF 2019
Sunil Vishwanath Madavi and another ... Petitioners
Versus
The Chief Secretary, State of Maharashtra and others ... Respondents
.........
Mr. Amit Gharte for the Petitioners.
Ms. Kavita Solunke, alongwith Ms. Mallika Pujari and Mr. Mayank Mishra for
Respondent No.2 - MMRDA.
Mr. Sanjay Patil for Respondent Nos.6 and 7.
Mr. P.S. Gole for Respondent Nos.8 and 9.
Mr. Pramod Bhosle instructed by Mr. Sharad Bhosle for Respondent No.10.
Ms. M.P. Thakur, AGP for the State.
Mr. Sanil Shete, Planner, MMRDA, present.
Respondent Nos.8 and 9, present.
.........
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
DATED : MARCH 30, 2021. P.C. :-
1. By the above Writ Petition, the Petitioners seek the following reliefs :
"(a) that this Hon'ble Court be pleased to issue a writ of Mandamus and/ or any other Writ, order and/or Direction, in the nature thereof, thereby directing the Respondent Nos.1 to 5, specially Respondent No.2, MMRDA to immediately initiate demolition action against the said illegal and unauthorized constructions commenced by private Respondent Nos.8 to 10 on aforesaid property/Survey No.12;
(b) that this Hon'ble Court be pleased to direct the Respondent No.1 i.e. Chief Secretary of State of Maharashtra to initiate action against the Kanchan P Dhuri 2 / 7 17-WP-833-2019__02.04.2021.odt concerned officer of Respondent Nos.2 to 5 for not initiating any action against the said illegal and unauthorized constructions commenced by the private Respondent Nos.8 to 10;"
2. Pursuant to an Order passed by this Court dated 25 th March, 2021, the Developer/Respondent No.10 and the alleged Owners of the Property/Respondent Nos.8 and 9 are today present before us along with their Advocates. Except for some purported permissions received from the Grampanchayat to construct buildings, which in law cannot be termed as valid permissions, nothing is produced by them to show how the Developer / alleged Owners constructed five buildings and admittedly sold 80 flats to innocent flat purchasers. The Developer has through his Advocate informed the Court that he has sold 43 out of 80 flats constructed by him to third parties; has allotted 18 flats as per the directions received from Respondent Nos.8 and 9; and has also allotted 15 flats to the Respondent Nos.8 and 9, which they have in turn sold to the third parties.
3. The Learned Advocate for the Developer has in response to the query raised by the Court as to which are the other projects undertaken by him, where unauthorized buildings are constructed and flats sold to innocent purchasers who are not even aware that the construction is illegal, on instructions, has informed the Court that apart from the subject project, he is working on two other projects on private lands by constructing buildings thereon on the basis of purported permissions received Kanchan P Dhuri
3 / 7 17-WP-833-2019__02.04.2021.odt from the Grampanchayat. He undertakes to provide detailed particulars qua the subject project, as well as the other projects undertaken by him, including the flats which he has constructed/proposes to construct and the amounts collected till date and the balance payable as on date.
4. The Learned Advocate appearing for the alleged Owners / Respondent Nos.8 and 9 has on instructions, informed the Court that Respondent Nos.8 and 9 have received and sold only 15 flats allotted to them by the Developer and that they have at no time given instructions to the Developer to handover 18 flats to any persons/entity as alleged by the developer. In response to a query from the Court, Respondent Nos.8 and 9 have through their Advocate, informed the Court that the said 15 flats were sold by them at a price of Rs.15 lakhs each, out of which they have received approximately Rs.7 to 8 lakhs in cash and the balance purchase price by cheque and the cumulative net profit earned by them on the sale of the said 15 flats is approximately Rs.1.25 Crores.
5. It is pertinent to note that on the last occasion when the matter was heard, the Respondent No.8 had informed the Court that the profit made by Respondent Nos.8 and 9 was approximately Rs.2 Crores. Respondent Nos.8 and 9 have also informed the Court that they are also getting the other lands purportedly owned by them, developed, by constructing flats thereon. They undertake to provide detailed particulars of the lands purportedly owned by them and the amounts received Kanchan P Dhuri 4 / 7 17-WP-833-2019__02.04.2021.odt from sale of the said lands till date and the balance yet to be received as on date.
6. It is also disclosed by Respondent Nos.8 and 9 that they and their family members have used a part of the profit earned by them from the subject project, by purchasing other properties, a list of which they will disclose on Affidavit.
7. From the aforestated facts, it appears that the modus operandi of Respondent Nos. 8 to 10 is to take a blanket letter/permission from the Grampanchayat, stating that they can construct buildings, and on the strength of such illegal / invalid permission/s, construct buildings which are completely unauthorized and sell the same to innocent flat purchasers, thereby cheating / perpetrating a fraud on them.
8. It also prima facie appears that such constructions cannot come up unless some officials of the statutory authorities are hand in glove with such ruthless alleged land owners/developers. If the Court passes a mere order to demolish the unauthorized constructions, the same will not in any manner affect Respondent Nos. 8 to 10 who have earned their ill-gotten gains by defrauding the innocent members of the public i.e. the flat purchasers, who will be the real sufferers and who will be virtually brought on the streets, without any refund of the consideration paid by them to the alleged land Owners / Developers who have perpetrated a fraud on them.
9. In the circumstances, the Respondent Nos.8 to 10 cannot be allowed to go scot free and if they are so allowed, they shall with impunity continue with their Kanchan P Dhuri 5 / 7 17-WP-833-2019__02.04.2021.odt fraudulent activities, thereby similarly defrauding hundreds of other innocent members of the public / flat purchasers. In view thereof, before we pass final orders in the matter, we deem it fit to direct Respondent Nos.8 and 9 as well as Respondent No.10 to disclose on oath the following :
(i) Respondent No.10 shall disclose on Affidavit :
(a) the particulars of the flats/shops that they have sold in the
subject project, as well as the other projects undertaken by them in the last five years; the amounts collected by them so far i.e. from the sales effected in the subject project, as also from the sales effected by them from projects undertaken by them in the last five years and similarly the balances yet to be received ;
(b) the names of the flat purchasers and the agreements / documents executed by and between the Developer and such flat purchasers shall also be annexed to the Affidavit;
(c) the profit made, both from sales effected in the subject project and from the sales effected by them from projects undertaken by them in the last five years, shall be separately disclosed;
(d) Respondent No.10 and his immediate family members shall also disclose all their assets, including the particulars of their bank accounts and the balances lying therein, along with the statement of such bank accounts of the last five years and the income tax returns filed by them for the last five years; Kanchan P Dhuri 6 / 7 17-WP-833-2019__02.04.2021.odt
(e) until the adjourned date Respondent No.10 shall not sell any flats/shops and/or any other immovable properties/assets to any person/s/entities.
(f ) Respondent No.10 shall not withdraw any amounts in excess of Rs.10,000/- from any of their bank accounts on or before 5 th April, 2021, when the matter shall be heard further.
(ii) The purported Land Owners/Respondent Nos.8 and 9 shall disclose on Affidavit :
(a) the particulars of the flats/shops that they have sold in the subject project, as well as the other projects undertaken by them in the last five years;
the amounts collected by them so far, i.e. from the sales effected in the subject project, as also from the sales effected by them from projects undertaken by them in the last five years and similarly the balances yet to be received ;
(b) the names of the flat purchasers and the agreements / documents executed by and between the Developer and such flat purchasers shall also be annexed to the Affidavit;
(c) the profit made, both from sales effected in the subject project and from the sales effected by them from projects undertaken by them in the last five years, shall be separately disclosed;
(d) Respondent Nos.8 and 9 and their immediate family Kanchan P Dhuri 7 / 7 17-WP-833-2019__02.04.2021.odt members shall also disclose all their assets, including the particulars of their bank accounts and the balances lying therein along with the statement of such bank accounts of the last five years and the income tax returns filed by them of the last five years;
(e) until the adjourned date Respondent Nos.8 and 9 shall not sell any flats/shops and/or any other immovable properties/assets to any person/s/entities.
(f ) Respondent Nos.8 and 9 shall not withdraw any amounts in excess of Rs.10,000/- from any of their bank accounts on or before 5 th April, 2021, when the matter shall be heard further.
Stand over to 5th April, 2021, High on Board.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. ) Kanchan P Dhuri