Bombay High Court
Abdul Salam Fitwalla (Deleted As Per ... vs The State Of Maharashtra And 4 Ors on 5 August, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
8-CONPWL-17058-2021 IN WP-2109-2013+.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION (L) NO. 17058 OF 2021
IN
WRIT PETITION NO. 2109 OF 2013
Abdul Salam Fitwalla & Ors ...Petitioners
Versus
ISA Enterprises & Ors ...Respondents
WITH
WRIT PETITION NO. 3113 OF 2015
IN
NOTICE OF MOTION NO. 344 OF 2018
WITH
NOTICE OF MOTION NO. 373 OF 2018
WITH
IN PERSON APPLICATION NO. 116 OF 2018
WITH
CHAMBER SUMMONS (L) NO. 221 OF 2017
IN
ASHWINI WRIT PETITION NO. 3113 OF 2015
HULGOJI
GAJAKOSH
Abdul Salam Fitwalla & Ors ...Petitioners
Digitally signed by
ASHWINI Versus
HULGOJI
GAJAKOSH The State of Maharashtra & Ors ...Respondents
Date: 2022.08.10
14:41:38 +0530
WITH
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5th August 2022
8-CONPWL-17058-2021 IN WP-2109-2013+.DOC
WRIT PETITION NO. 275 OF 2020
Abdul Razzak AK Fitwalla & Ors ...Petitioners
Versus
ISA Enterprises & Ors ...Respondents
WITH
WRIT PETITION NO. 3009 OF 2019
Munir Mohammed Nabi ...Petitioner
Versus
ISA Enterprises & Ors ...Respondents
WITH
WRIT PETITION NO. 3012 OF 2019
Shaikh Mohamed Iqbal ...Petitioner
Versus
Chief Officer MBR and R Board & Ors ...Respondents
Mr Prithviraj S Gote, for the Petitioner in WP/3113/2015.
Mr SJ Chaurasia, i/b Ashoka Law Firm, for the Petitioner in
WP/275/2022.
Mr Sameer R Jagtap, i/b Jagtap& Jagtap, for Respondent No. 6 in
WP/3113/2015.
Mr Kayval P Shah, for the Petitioner.
Mr Ashish Gabhale, i/b Ajay Mishar & Co, for Respondent No. 5 in
WP/3113/2015 and for the 1st Respondent in the Contempt
Petition.
Mr Amit Shastri, AGP, for the Respondent-State in WP/2109/2013
& in WP/3113/2015.
Mr Manish Upadhye, AGP, for the Respondent-State in
WP/275/2020.
Mr Kedar Dighe, AGP, for the Respondent in WP/3009/2019.
Mr Sagar Patil, for MCGM, is present.
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5th August 2022
8-CONPWL-17058-2021 IN WP-2109-2013+.DOC
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 5th August 2022 PC:- CONTEMPT PETITION (L) 17058 NO. OF 2021:
1. Prima facie it is clear that Respondent No. 5 to the Original Writ Petition is in breach of his undertakings to the Court given on 4th September 2013 (page 62). The amount of transit rent at Rs. 7,000/- per month to occupants of residential premises and Rs. 10,000/- per month to occupants of commercial premises have not been paid according to the Petitioners for at least two years. Mr Gabhale, the Advocate for the Respondent-Contemnor (Isa Enterprises), the 5th Respondent in Writ Petition No. 3113 of 2015 and the 1st Respondent in the Contempt Petition, insists that the amounts have been paid. We find this very strange since he also says that in Writ Petition No. 3113 of 2015 he needs to file a response to an Affidavit filed by MHADA, in which MHADA apparently confirms what is stated regarding compliance. Mr Gabhale's instructions are only to say that his clients, the developers, want to put in an affidavit. On merits, there is nothing.
2. We also do not see how Mr Gabhale has no instructions to counter MHADA's affidavit but has instructions to say that amounts have been paid.
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3. We will give Isa Enterprises time until Wednesday, 10th August 2022 to produce evidence that it has paid the amounts according to the paragraph 2 of the 4th September 2022 order.
4. At this stage, Mr Gabhale states that some payment was made but he is unable to tell what payment has made. He now agrees that payment has not been made up to date. He agrees that possession of Petitioners premises has not been delivered before 31st December 2013. He cannot say when the 2nd and 3rd floor were converted to a non-conforming use (i.e. a use other than car parking) or when other non-eligible persons were given possession of the 7th and 14th floors and on what basis. All these are matters of undertaking to the Court.
5. The Contempt Petition was filed somewhere around 23rd or 24th August 2021. It has been pending for almost one year. We do not know why the Respondent-Contemnor, Isa Enterprises, has not cared to file a reply pending issuance of contempt notice. We are not permitting an Affidavit in Reply to the Petition. We will permit the Respondent-Contemnor to file an Affidavit by 10th August 2022, demonstrating a compliance with every single clause of the order dated 4th September 2013 at page 62. The Respondent-Contemnor is put to notice that if we find that there is a incomplete or insufficient compliance with that order we will proceed against it including but not limited to an order in contempt.
6. The paging in the Contempt Petition will have to be rectified.
7. List the matter on 12th August 2022.
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8. All matters yet on a lodging or stamp number are to have their filing defects cured or rectified, and the matters finally numbered by the next date.
WRIT PETITION NO. 3113 OF 2015:
9. There are serious questions raised here about the redevelopment of Fitwalla buildings Nos. 16 and 18. In the companion Writ Petition No. 2109 of 2013, there was a final order of 4th September 2013 (Vazifdar J, as he then was, and KR Shriram J) disposing of the Writ Petition. Contempt Petition (L) No. 17058 of 2021 has been filed in that regard, and the first part of this order relates to that Contempt Petition. The same developer/owner is involved in Writ Petition No. 3113 of 2015 as Respondent No. 5. In this, MHADA is said to have served an additional Affidavit from pages 178 to 196 dated 9th February 2022 confirming or stating that the 5th Respondent, Isa Enterprises, is guilty of many irregularities or illegalities. Isa Enterprises seeks time to reply to the MHADA Affidavit. One of the allegations is that premises reserved for the 11 Writ Petitioners, all eligible occupants, have been given unauthorisedly to certain non-eligible third parties. Eight of those persons (alleged to be non-eligible) are petitioners in Writ Petition No. 275 of 2020. They have challenged certain orders of MHADA and higher authorities rejecting their claims. All this pertains to the same redevelopment and the same developer.
10. There will be several competing claims to be addressed. The claims of the eligible tenants/occupants are in a separate class and Page 5 of 6 5th August 2022 8-CONPWL-17058-2021 IN WP-2109-2013+.DOC their entitlements cannot be denied. What is the appropriate frame of the order to be made given the change in circumstances will have to be considered on the next date. That there is an ongoing liability to pay transit rent is not disputed. In what amount and whether or not with permitted rent increases will also have to be adjudicated.
11. We will permit Isa Enterprises, the 5th Respondent, to file an Affidavit in Response to the MHADA additional Affidavit. This is to be done by 12th August 2022. No further Affidavits are to be filed without leave of the Court.
12. We find from our Court records that we do not have a copy of the MHADA Affidavit. Mr Lad regularly appears for MHADA. We will require his presence on the next occasion. A copy of the MHADA Affidavit if not filed is to be filed with the Registry.
13. The Writ Petition will be listed on 25th August 2022.
(Gauri Godse, J) (G. S. Patel, J)
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5th August 2022