Bombay High Court
Madhukanta Bhogilal Shah(Sinces ... vs Shradha Chandrashekhar Hingrh And Anr. ... on 19 September, 2019
Author: R. I. Chagla
Bench: R. I. Chagla
906-CHS-1066-2019.odt Ganesh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1066 OF 2019
IN
EXECUTION APPLICATION NO. 833 OF 2015
IN
ARBITRATION AWARD DATED 25-11-2005
Gautam Bhogilal Jhobalia ...Applicants
In the matter between
Madhukanta Bhogilal Shah alias Jhobali
Through her legal heirs
Gautam Bhogilal Jhobalia & Ors. ...Applicants/
Claimants/ Award Holders
V/s.
Shradha Chandrashekhar Hingarh & Ors. ... Respondents
And
The Municipal Corporation of Greater
Mumbai & Ors. ...Proposed Respondents
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Mr. Sharan Jagtiani, alw. S. Sayed and Ms Naziya Khan, i/b Wadia Ghandy &
Co., for the Applicant.
Mr. Kamal Khata alw. A. A. Siddique for Respondent No. 1.
Mr. Ishan Gambhir i/b Vigil Juris for Claimant No. 3
Mr. Sagar Patil for MCGM
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CORAM: R. I. CHAGLA, J.
DATE: 19TH SEPTEMBER, 2019. PC:- 1/5 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 00:34:27 ::: 906-CHS-1066-2019.odt Ganesh
1. This Chamber Summons seeks impleadment of the Municipal Commissioner of the Municipal Corporation of Greater Mumbai, the Executive Engineer, Buildings Proposal Department and Executive Engineer, Building and Factory Department K/W ward, Mumbai. Further relief has been sought in the Chamber Summons inter-alia restraining the Mumbai Municipal Corporation of Greater Mumbai, the Executive Engineer, Building Proposal Department and Executive Engineer, Building and Factory Department K/W ward or any other officer/authority of the Municipal Corporation of Greater Mumbai upon being joined as party Respondents in the Chamber Summons from accepting, processing or approving/ sanctioning any application made directly or indirectly by or for and on behalf of Respondent No. 1 & 2 for approval/ acceptance/sanction of any plans in respect of any part or portion of the 2nd floor to 6th floor of Madhu Parag, 'A' Wing, Plot No. 69, Swastik Co- operative Housing Society Ltd., 4/5 N. M. Road, J.V.P.D. Scheme, Vile Parle (W), Mumbai - 400 056 ("the said property") including all its common and other areas such as staircases, terrace (especially terrace above 6 th Floor), lift area, attic or mumty area, compound etc., without the express written consent of the Applicant. There appears to be some dispute as to whether there has been illegal constructions which have been effected in the said property.
2. The learned counsel for the Applicants has referred to the order of this Court (G. S. Patel, J.) dated 3.05.2019, wherein this Court had observed and 2/5 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 00:34:27 ::: 906-CHS-1066-2019.odt Ganesh recorded the contention of the learned counsel for the Applicants that there are many additions, alterations and changes which so far beyond the sanctioned plans that no Occupation Certificate could be received in this state of affairs. The contention of the Applicants being that the consent award was frustrated by such illegal constructions put up by the Respondent Nos. 1 & 2 which are beyond the sanctioned plans. M/s. Nadkarni & Co., was accordingly appointed from the panel of Court Receiver to visit the said property and carry out the exercises of measurement of all the areas including above the first floor as also terrace. This exercise has been carried out by the M/s. Nadkarni & Co., who has filed its Report. In the said report, there are observations of the areas of the building with respect to the second floor upto the sixth floor and terrace which are beyond the areas in the approved/sanctioned plans. There are further observations of constructions being beyond the approved plan which constitutes FSI violations.
3. The learned counsel for Respondent Nos. 1 & 2 states that the constructions which has been effected in the said respective floors of the said property are in accordance with the consent award as there was a certain FSI which the parties agreed could be utilized and thereafter the parties would have the additional construction regularized. He has sought permission to file reply to the report of M/s. Nadkarni & Co., filed in this Court. 3/5 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 00:34:27 :::
906-CHS-1066-2019.odt Ganesh
4. It would be necessary in the above circumstances to permit the Applicant to join the Municipal Commissioner of the Mumbai Municipal Corporation, Executive Engineer, Buildings Proposal Department and Executive Engineer Building and Factory Department, K/W Mumbai as per the Schedule A to the Chamber summons as party Respondents. This amendment shall be carried out by the Applicants forthwith. The Respondent Nos. 1 & 2 are permitted to file Affidavit-in-Reply to the report of M/s. Nadkarni & Co. In the affidavit in reply they shall deal with all the findings of M/s. Nadkarni & Co., as well as the manner in which the areas of the respective floors and terrace in the said property have increased from the areas in the approved plans. They shall also respond to the finding of the construction being beyond the approved plans dated 5.05.2004. Till then it would be appropriate, considering that, Respondent Nos. 1 & 2 have made application for regularization of the construction which is stated to be beyond the approved plan dated 05.05.2004 to the Municipal Corporation of Greater Mumbai and that regularization may be entertained prior to the next date, to grant ad-interim relief in terms of prayer clause (c) of the Chamber Summons. The Municipal Corporation of Greater Mumbai, the Executive Engineer, Building and Factory Department K/W ward or any other officer/authority of the Municipal Corporation of Greater Mumbai being joined as Respondents herein is restrained from accepting, processing or approving / sanctioning any application made directly or indirectly by or for and on behalf of the 4/5 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 00:34:27 ::: 906-CHS-1066-2019.odt Ganesh Respondent Nos. 1 & 2 for approval/ acceptance/ sanction of any plans in respect of any part or portion of the the said property including all its common and other areas such as staricases, terrace (especially terrace above 6 th Floor), lift area, attic or mumty area, compound etc., without the express written consent of the Applicants.
5. The Respondent Nos. 1 & 2 shall file their Affidavit in reply to the Chamber Summons on the before the next date. The fees of the Court appointed Commissioner M/s. Nadkarni & Co., shall be jointly paid by the Applicants and Respondent Nos. 1& 2.
6. This Chamber Summons alongwith Chamber Summons No. 961 of 2017 shall be placed on board on 11th October, 2019.
(R. I. CHAGLA, J.) 5/5 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 00:34:27 :::