Bombay High Court
M/S Nayana Builders And Developers vs State Of Maharashtra And 4 Ors on 20 December, 2018
Author: N. J. Jamadar
Bench: K.K. Tated, N. J. Jamadar
923 conpw28-17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO.28 OF 2017
IN
WRIT PETITION NO.2858 OF 2012
Nayana Builders & Developers .. Petitioner
V/s.
State of Maharashtra and Ors. .. Respondents
Mr.Chirag Balsara a/w Mr.Abhijit Patil I/b Mr.Ajay Patil for the
petitioner
Mr.Kedar Dighe, A.G.P. for the State
Mr.Vinod Pandey a/w Mr.Yogesh Bandal for the respondent no.4
CORAM: K.K. TATED &
N. J. JAMADAR, JJ.
DATED : DECEMBER 20, 2018 P.C. : 1 Heard. 2 By this Contempt Petition, Petitioner alleges that
Respondent no.4 failed and neglected to comply the Consent Terms dated 02.12.2014 in Writ Petition No.2858 of 2017 with Contempt Petition (L) No.59 of 2013 and the order dated 04.12.2014.
3 The learned counsel for the Petitioner submits that both the Mohite 1/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 ::: 923 conpw28-17.doc parties Petitioner and Respondent no.4 filed their Consent Terms dated 04.12.2014 before this court. Those Consent Terms were accepted by this court by order dated 04.12.2014. He submits that as per the Consent Terms, Petitioner is entitled 8750 sq.ft. constructed area on vertical basis on property bearing CTS No.6A (Part) 467 (Part) 468 (Part), 471 (Part), 553 (Part) at village Malwani, Charkop, Bhabrekar Nagar, Kandivali (W), Mumbai 400
067. 4 The learned counsel for the Petitioner submits that though the Petitioner called upon the Respondent no.4 to execute the registered document in respect of the said area, Respondent no.4 failed and neglected to do so. Hence, they preferred the present Contempt Petition.
5 The learned counsel for the Petitioner submits that as per the Consent Terms dated 02.12.2014 Petitioner is entitled the area i.e. 8750 sq.ft. In support of this contention, the learned counsel for the Petitioner relies on clause nos.7, 8, 9, 12 of the Consent Terms which reads thus:
"7. The Respondent No.4 - M/s.Shivraj Developers hereby admits that the Petitioner has spent lakhs of rupees in respect of implementation of the Slum Rehabilitation Scheme on the said property and obtaining Annexure-II in respect of the Slub Rehabilitation Scheme on the said property and in lieu thereof the Respondent No.4 developer i.e. M/s. Shivraj Developers has agreed to settle all the disputes with the Petitioner for smooth implementation of the Slum Rehabilitation Mohite 2/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 ::: 923 conpw28-17.doc Scheme on the said property and the Respondent No.4 has therefore decided to execute this consent terms and in lieu of expenses incurred by the Petitioner in respect of the said property, the Respondent No.4 - M/s.Shivraj Developers has agreed to compensate the Petitioner by paying full and final compensation being amount of Rs.48,00,000/- and saleable area admeasuring 8750 sq. feet in sale building and in turn the Petitioner agrees and undertakes not to claim anything in respect of the said property over and above the agreed compensation.
8. It is agreed by and between the parties that the Respondent No.4 shall execute a registered Agreement for Sale in respect of saleable area admeasuring 8750 sq. ft. in sale building proposed to be constructed on the said property on the vertical basis and the Respondent No.4 will be liable to hand over the said flats immediately after obtaining Occupation Certificate to be constructed in the sale building on the said property to the Petitioner free of cost and without any consideration after.
9. The Petitioner hereby agrees that the Petitioner shall take each and every step and also undertake before this Hon'ble Court that the Petitioner shall try their level best to vacate the said property by shifting the eligible and non-eligible slum dwellers, who are with the Petitioner and will try to hand over the vacant and peaceful possession of slum develler's respective tenements. The Respondent No.4 shall be liable to provide transit accommodation or in the alternate to pay monthly rent in lieu of transit accommodation / shifting charges to slum dwellers.
12. The Petitioner further undertakes that Mohite 3/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 ::: 923 conpw28-17.doc the Petitioner will execute and file all necessary documents, in respect of implementation of the Slum Rehabilitation Scheme on the said property in favour of the Respondent Nos.4 and 5 and the Respondent No.4 - developer undertakes to pay the above mentioned compensation and also hand over saleable area admeasuring 8750 sq.feet in sale building to the Petitioner and in view of this undertaking given by the Respondent No.4 the petitioner will not claim any right, title or interest in future in respect of implementation of the Slum Rehabilitation Scheme on the said property by the Respondent No.4 and 5."
6 Therefore, this Hon'ble Court be pleased to take appropriate action against the Respondent no.4 under the Contempt of Court Act. He further submits that during the pendency of the present Contempt Petition, Respondent no.4 may be restrained from creating any third party right, title and interest in respect of the area admeasuring 8750 sq.ft. as stated in Consent Terms. He submits that if third party rights are created to the extent of 8750 sq.ft. then nothing will survive in the present Contempt Petition.
7 On the other hand, the learned counsel for the Respondent contemnor vehemently opposed the present Contempt Petition. He submits that in view of the M.O.U. dated 14.11.2014 executed between both the parties, there is no question of entertaining the present Contempt Petition. Therefore, Contempt Petition is required to be dismissed with costs.
8 We have heard both the sides.
Mohite 4/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 :::923 conpw28-17.doc 9 It is to be noted that as per Consent Terms dated 02.12.2014 Respondent No.4 agreed to execute registered agreement of the saleable area admeasuring 8750 sq.ft. in favour of the petitioner. Though the Petitioner called upon the Respondent no.4 to execute the registered document in respect of the said area, Respondent no.4 failed and neglected to do so.
10 Bare reading of the Consent Terms dated 02.12.2014 shows that Respondent no.4 is bound to execute registered agreement for sale inspite of the said area. Same is not done by the Respondent No.4.
11 Considering these facts, prima facie we are of the opinion that Respondent no.4 has committed contempt by not complying the Consent Terms dated 02.12.2014 along with the order dated 04.12.2014 passed by this court. Not only that the Petitioner has made out a case for interim relief in the present proceedings. Hence, following order is passed:
a) Admit. b) Office is directed to issue notice to the Respondent, returnable on 01.02.2019. c) Pending the hearing and final disposal of the Contempt
Petition, interim relief in terms of prayer clause (d) except bracketed portion in red colour which reads thus:
Mohite 5/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 :::923 conpw28-17.doc "(d) Pending hearing and final disposal of the present Contempt Petition, this Hon'ble Court be pleased to direct the Respondent No.4 / Contemnor to keep saleable area admeasuring 8750 sq.ft. in the sale building proposed to be constructed on the said property bearing CTS No.6A (Part) 467 (Part) 468 (Part), 471 (Part), 553 (Part) at village Malwani, Charkop, Bhabrekar Nagar, Kandivali (W), Mumbai 400 067, on vertical basis."
d) Respondent no.4 is restrained by an order of injunction from creating any third party right, title and interest in respect of the saleable area admeasuring 8750 sq.ft.in a proposed building to be constructed on the said plot of land.
(N. J. JAMADAR, J) (K.K. TATED, J.) Mohite 6/6 ::: Uploaded on - 27/12/2018 ::: Downloaded on - 27/12/2018 20:57:08 :::