Bombay High Court
Anand Co Operative Housing Society Ltd vs District Deputy Registrar And 4 Others on 5 January, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
SWAROOP Digitally signed by
SWAROOP
SHARAD SHARAD PHADKE
Date: 2022.01.26
PHADKE 17:04:22 +0530 wpl 6838 of 2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.6838 OF 2020
Anand Co-op. Hsg. Soc. Ltd. ... Petitioner
Versus
District Deputy Registrar and Ors. ... Respondents
WITH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2287 OF 2013
Yamini Mahendra Patel and Anr. ... Petitioners
versus
Tanna Enterprises and Ors. ... Respondents
WITH
CIVIL APPLICATION (ST) NO.28778 OF 2016
WITH
CIVIL APPLICATION NO.615 OF 2019
WITH
CONTEMPT PETITION NO.67 OF 2018
Mr. Sharan Jagtiani, Senior Advocate with Mr. Mutahhar Khan, Mr. Vishal Mehta
i/by MV Law Partners, for Petitioner in WPL 6838 of 2020.
Mr. I.K.Tripathi i/by Mr. C.K.Tripathi, for Petitioners in WP 2287 of 2013 and CP 67
of 2018 and for Respondent Nos.3 and 4 in WPL 6838 of 2020.
Mr. Mutahhar Khan with Mr. Vishal Mehta i/by MV Law Partners, for Respondent
No.2 in WP 2287 of 2013.
Mr. Hemant Haryan, AGP, for State in WPL 6838 of 2020.
CORAM : S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
DATE : 5th JANUARY, 2022 P.C.
1. In Writ Petition (L) No.6838 of 2020, t he Petitioner before this Court is a co-operative housing society registered under the provisions of the SSP 1/36 wpl 6838 of 2020.doc Maharashtra Co-operative Societies Act, 1960. The buildings of the Society stands on the land bearing Survey No. 29, Hissa No. 1, CTS No. 444C of Kanheri Village, Borivali Taluka, Plot No. 71 P/2, of Borivali Town Planning Scheme No. II (hereinafter referred to as the "said Plot").
2. Respondent No. 1 is the Deputy District Registrar who passed an Order on 5th January 2013, allowing the Petitioner's application under Section 11(3) of the Maharashtra Ownership of Flats Act 1963 and granted unilateral deemed conveyance of the said Plot in favour of the Petitioner.
3. Respondent No. 2 is the concerned City Survey Officer. Respondent No. 3 - Yamini Mahendra Patel and Respondent No.4 - Swati Himanshu Baxi are individuals who claim to be heirs of the original owners of the said Plot. Respondent Nos. 3 and 4 were parties to the proceedings before Respondent No. 1 and had opposed the grant of conveyance in favour of the Petitioner Society.
4. By the present Writ Petition, the Petitioner Society has prayed for a writ in the nature of certiorari or any appropriate writ to set aside and quash the letters dated 12th February 2018, 18th June 2018 and 12th February 2020, issued by Respondent No. 1. The Petitioner has also sought a writ in the nature of mandamus directing Respondent No. 2 to delete the Mutation Entry No. 619 of SSP 2/36 wpl 6838 of 2020.doc 2017 from the Property Register Card which the Petitioner contends has been wrongfully inserted.
5. It is the Petitioner's case that the letters dated 12 th February 2018, 18th June 2018 and 12th February 2020, issued by Respondent No. 1 and the Mutation Entry No. 619 of 2017 are arbitrary and based on a patently incorrect reading of the Orders dated 6th March 2013 and 3rd September 2013.
6. By this Order, we will consider whether the Petitioner is entitled to the following interim relief as sought in the Writ Petition (L) No.6838 of 2020 :
"(d) Pending the hearing and disposal of the present Petition, this Hon'ble Court be pleased to stay the effect and operation of the letters dated 12th February, 2018 (Exhibit - "K" to this Petition), 18th June, 2018 (Exhibit - "M" to this Petition) and 12th February 2020 (Exhibit - "U" to this Petition) issued by the Respondent No. 1 and the Mutation Entry No. 619 of 2017 in the Property Register Card (Exhibit - "I" to this Petition)."
7. Writ Petition (L) No.6838 of 2020 came up for admission on 21 st January 2021 before this Court. This Court, after hearing the parties, admitted the present Petition and passed an Order directing the present Petition to be heard finally on 28th January 2021.
SSP 3/36
wpl 6838 of 2020.doc
8. On 28th January 2021, when the Petition came up for final hearing, the Advocate for Respondent Nos. 3 and 4 raised a doubt whether the issues raised in the present Petition pertained to the assignment of this Bench. This Court, accordingly, directed the Registry to seek necessary directions from the Hon'ble Chief Justice in this regard.
9. Subsequently, due to the second wave of the Covid 19 pandemic, this Court was constrained to hear only extremely urgent matters in accordance with the applicable SOPs. The Petition, therefore, could not be taken up for final disposal.
10. On 6th May 2021, this Petition was circulated before this Court at the instance of the Petitioner. This Court directed the Petition to be heard on 8 th June 2021 along with Writ Petition No. 2287 of 2013.
11. When Writ Petition (L) No.6838 of 2020 came up for hearing before this Court on 10th June 2021, Shri Sharan Jagtiani, Learned Senior Counsel, appearing for the Petitioner submitted that the Petitioner's building was in an extremely dilapidated condition and certain portions of the building had collapsed. Shri Jagtiani further submitted that MCGM had issued a Notice under Section 353B of the Mumbai Municipal Corporation Act, 1888 (MMC SSP 4/36 wpl 6838 of 2020.doc Act ) qua the Petitioner's building. He therefore requested that this Petition be taken up for hearing and final disposal at the earliest.
12. In response, the Advocate appearing for Respondent Nos. 3 and 4 disputed that the Petitioner's building was in a dilapidated condition. He submitted that Respondent Nos. 3 and 4 would have no objection if the Petitioner sought to repair its building as advised by a qualified architect or engineer.
13. Since the hearing and disposal of the petition would take some time, we thought it appropriate to appoint an independent architect / structural engineer to report on the structural condition of the building so that remedial steps could be taken to avoid any mishap. Accordingly, this Court passed an Order on 10th June 2021, the operative portion of which is reads as follows :
"(i) Mr. Amol Shetgiri, Architect of M/s. Shetgiri and Associates alongwith a Structural Engineer shall visit and inspect the society building situated at Plot No. 71, P/2, Haribhai Patel Road, Kasturba Cross Road No.4, Borivali, Mumbai -400 066 on 11.06.2021 at 12:00 noon.
(ii) Mr. Shetgiri shall submit his report with regard to the structural stability of the society building as on date to the SSP 5/36 wpl 6838 of 2020.doc Associate of this Court on or before 15th June, 2021. Mr. Shetgiri shall in his report also opine whether the building is repairable and the estimated cost involved.
(iii) The Petitioner society and its members shall cooperate with Mr. Shetgiri as well as the Structural Engineer accompanying him and shall handover all necessary documents required by them including the Notice dated 6th July, 2020 issued by the Corporation.
(iv) The parties and their Advocates are at liberty to remain present when Mr. Shetgiri, Architect along with the Structural Engineer visit the Society building.
(v) The undertaking given on behalf of the Petitioner society that the Society will pay the fees / charges of Mr. Shetgiri is accepted.
(vi) The Associate of this Court shall upon receipt of the report from Mr. Shetgiri, forthwith handover copies of the same to the Advocates for the parties.
4. Stand over to 17th June, 2021."
14. Pursuant to the Order dated 10 th June, 2021 passed by this Court, Mr. Shetgiri of M/s. Shetgiri & Associates inspected the Petitioner's building comprising of Wing A1 and A2 and Wing B on 11 th June 2021, 12th June 2021 and 13th June 2021 to carry out the structural audit including the nondestructive SSP 6/36 wpl 6838 of 2020.doc tests to submit a technical report before this Court.
15. On 17th June 2021, at the hearing before this Court, M/s. Shetgiri & Associates submitted two reports, both dated 16 th June 2021, pertaining to Wing A1 and A2 and Wing B respectively. The Reports record that apart from a visual inspection, M/s. Shetgiri & Associates had conducted various non-destructive tests like carbonation test, half-cell potential test, rebound hammer test, ultrasound pulse velocity test, chemical analysis and core compression test. The relevant observations from the Report pertaining to Wing A1 and A2 are reproduced as follows :
"Sagging of RCC slab is observed in many rooms of the flats. The said sagging is observed to an extent of up to 15mm to 22mm. which is certainly a cause of concern. It may lead to a sudden failure of the said RCC slab, further lead to a collapse of the structure partially or in totality."
"The said slabs are found in critical condition and beyond repairable condition."
"Staircase area waist slab, columns and beams are observed damaged. At many locations, the said RCC elements are found in critical conditions."
"Majority of the readings are below 3 km /s. It shows the quality of the concrete is poor."
SSP 7/36
wpl 6838 of 2020.doc
16. The conclusion arrived at by M/s. Shetgiri & Associates on the basis of the visual inspection in the various tests conducted by them, in respect of Wing A1 and A2, is reproduced as follows :
"On the basis of the visual observations of the critical RCC elements, the findings, as mentioned above and the core test readings, including other test readings, it can be inferred that the readings are below the acceptable and tolerable readings, as duly provided under the codal provisions of the I. S. Codes. This is a sign of and leading to design failure of the structure at any point of time and hence in our opinion, the said structure is at stake, dilapidated and not fit for tenable condition, as such falls under C - 1 category. Hence, the said structure should be vacated and demolished immediately."
"In our opinion, the said building structure has to be evacuated and demolished /pull down immediately."
(Emphasis Supplied)
17. Similar observations and conclusions are found in the Report pertaining to Wing B of the Petitioner's building.
18. On that day, we heard parties for some time on the grant of interim reliefs.
19. Thereafter, the matter was placed for direction on 30 th December SSP 8/36 wpl 6838 of 2020.doc 2021 and, by consent of parties, we placed the matter for hearing on 03 rd January 2022 with a further opportunity to the parties to make brief submissions. The relevant portion of the Order dated 30 th December 2021 is reproduced hereinafter :
"Since substantial time has elapsed after the above Interim Applications were heard, by consent of parties, we have placed the above Interim Applications for rehearing. The parties through their Advocates agree to reargue the Interim Applications on 3rd January, 2022 at 2.30 p.m."
20. On 3rd January 2022, Shri Jagtiani, Learned Senior Advocate for the Petitioner Society, reiterated that the Petitioner Society, while carrying out the redevelopment on the plot of land admeasuring 2466.61 sq. mts., would not utilize any FSI which Respondent Nos. 3 and 4 claimed rights i.e. in respect of 475.58 sq. mts. However, Shri Tripathi, representing the Respondent No. 3 and 4, apart from reiterating his earlier submissions, stated that two structures namely a security cabin and a garage were located on the plot which the Petitioner sought to redevelop. These structures, it was contended, were in addition to the underground water tank which was also on the portion of the plot of land that the Petitioner sought to redevelop. Shri Jagtiani, on SSP 9/36 wpl 6838 of 2020.doc instructions, submitted that the two structures and water tank were on the land belonging to Respondent Nos. 3 and 4. He also submitted that if the water tank was on the Petitioner's portion of land, it would be relocated to the Respondent No. 3 and 4's portion by the Petitioner at their own cost. The Order of this Court dated 3rd January 2022 reads thus :
"1. Admittedly, Respondent Nos. 3 and 4 are the owners of an area admeasuring 475.58 sq. mts. Mr. Jagtiani representing the Petitioner Society has stated that whilst carrying out the development / redevelopment work on the plot of land admeasuring 2466.61 sq. mts., the Petitioner society shall not utilise any of the FSI which Respondent Nos. 3 and 4 are entitled to use in law for the development of their plot admeasuring 475.58 sq. mts.
2. Mr. Tripathi representing Respondent Nos. 3 and 4 states that there is a water tank of Respondent Nos. 3 and 4 which is located on the plot which the Petitioner seeks to redevelop. He further states that there are two structures, namely, a security cabin and a garage which are located on the plot sought to be developed / redeveloped by the Petitioner Society. Mr. Jagtiani submits that the water tank and two structures are on the land belonging to Respondent Nos. 3 and 4. Mr Jagtiani further states that so far as the water tank is concerned, even assuming that the same is on the land admeasuring 2466.61 sq. mts.,the Petitioner shall shift the SSP 10/36 wpl 6838 of 2020.doc same at their cost to the plot admeasuring 475.58 sq. mts. owned by Respondent Nos. 3 and 4.
3. In view of the above, by consent of parties we appoint Mr. Amol Shetgiri of M/s. Shetgiri and Associates as an independent Architect to visit the subject premises on 04 th January, 2022 at 12 noon and submit his report to this Court setting out whether the water tank and the security cabin as well as the garage are at present found on the larger plot admeasuring 2466.61 sq. mts. which the Petitioner Society seeks to develop / redevelop or is found on the plot admeasuring 475.58 sq. mts. belonging to the Respondent Nos. 3 and 4. Advocate for the parties and their representatives shall remain present when Mr. Amol Shetgiri visits the premises. They may make their submissions before Mr. Shetgiri but shall not enter into any arguments. They shall also be at liberty to produce relevant records in their possession. Mr. Shetgiri shall be at liberty to take photographs and produce the same along with his report. The charges of Mr. Shetgiri shall be borne by the parties equally. Stand over to 5th January, 2022."
21. As noted in the Order dated 3rd January 2022, by consent of parties, we appointed M/s. Shetgiri and Associates as an independent Architect to visit the subject premises on 04th January 2022 at 12 noon and submit his report to this Court setting out whether the water tank and security cabin as well as SSP 11/36 wpl 6838 of 2020.doc garage were on the larger plot of land admeasuring 2466.61 sq. mts. or on the plot admeasuring 475.58 sq. mts.
22. On 04th January 2022, M/s. Shetgiri and Associates visited the premises in the presence of the parties and their respective representatives.
23. On 5th January 2022, M/s. Shetgiri and Associates submitted a "Technical Inspection Report" before this Court. The Report records the following observations :
"As regards the mandate, following are the observations: -
The Water Tank is found to be existing within the larger chunk of the Plot admeasuring 2466.61 Sq. Mts and sought to be developed / redeveloped by the PetitionerSociety. There exists a small Pump Room (Water supply pump) above the water tank along with a servant's room cojoined to the pump room and which is presently being used as a store room, all existing within the plot of land admeasuring 2466.61 Sq. Mts and sought to be developed/ redeveloped by the Petitioner-Society.
Further with interconnected pipelines, the water tank and the pump installed within the pump room is observed to be supplying water to the structure within the Plot admeasuring 475.58 Sq. Mts and belonging to Respondent Nos 3 & 4.
B. As regards, the Security Cabin as well as the Garage, the representative of the Respondents No 3 & 4 present during the SSP 12/36 wpl 6838 of 2020.doc inspection informed that inadvertently the nomenclature of Pump Room and Servant's room mentioned above (Existing within the larger chunk of the Plot admeasuring 2466.61 Sq. Mts) was misrepresented by them as Security Cabin and Garage during the hearing of the matter.
On the basis of the said submission of the representative of the Respondents No 3 & 4 and thorough inspection of the site, we could conclude that neither any Security Cabin nor any Garage exists on any of the plots under reference especially forming part of the mandate of the Orders passed by the Hon 'ble Court. C. There exists few outhouses which could be classified as Garages cum store room and existing within the smaller chunk of the plot admeasuring 475.58 Sq. Mts belonging to Respondent Nos 3 & 4. However, as informed by representative of the Respondents No 3 & 4, these are personal outhouses / Garages and as such outside the mandate of the Orders passed by the Hon'ble Court."
24. On the basis of these observation, M/s. Shetgiri & Associates arrived at the following conclusions :
"1. The Water Tank is found to be existing within the larger chunk of the Plot admeasuring 2466.61 Sq. Mts and sought to be developed/ redeveloped by the Petitioner-Society.
2. As informed by the representative of the Respondent Nos 3 & 4, SSP 13/36 wpl 6838 of 2020.doc the Pump Room and Servant's room inadvertently mentioned by them as Security Cabin and Garage is found to be existing within the larger chunk of the Plot admeasuring 2466.61 sq. mts. to be developed / redeveloped by the Petitioner-Society.
3. Further, no separate Security Cabin and/or Garage exists within any of the plots under reference."
25. On 5th January 2022, after the Technical Inspection Report was submitted before us, we heard the parties further at which time the Petitioner Society reiterated its proposal for relocation of the water tank and the pump room and the servant's room cabin adjacent to the water tank.
26. Before considering the grant of interim relief as sought by the Petitioner Society, it is necessary to set out the following relevant facts :
26.1 Sometime in 1983, Respondent No. 5 constructed two buildings named 'Anand' on the said Plot. The construction was carried out on the basis of rights acquired from the original owners of the said Plot. 26.2 Respondent Nos. 3 and 4 claim to be successors in interest of the original owners of the said Plot. Respondent Nos. 3 and 4 reside in a bungalow situated on the said Plot and are aware of the existence of the said buildings since the inception.
26.3 Respondent No. 5 sold individual units to various purchasers who SSP 14/36 wpl 6838 of 2020.doc subsequently formed the Petitioner Society.
26.4 In 2012, the Petitioner Society filed an application being Application No. 71 of 2012 seeking unilateral deemed conveyance before Respondent No. 1 under Section 11 (3) of the Maharashtra Ownership of Flats Act, 1963. Respondent Nos. 3 and 4 filed their objection to the Petitioner's Application.
26.5 On 5th January 2013, Respondent No. 1 passed an Order allowing the said Application. By the said Order, Respondent No. 1 granted deemed Conveyance of the said Plot admeasuring 2942.19 sq. mts. together with buildings standing thereon. However, by the said Order, Respondent No. 1 granted only leasehold rights in favour of Respondent Nos. 3 and 4 at a nominal lease rent of Re. 1/- per year with respect to the small portion of the Property admeasuring 475.58 Sq. mts., together with a bungalow standing thereon. 26.6 Thereafter, in February 2013, Respondent Nos. 3 and 4 filed Writ Petition No. 2287 of 2013 seeking to challenge the Order of Respondent No. 1 granting deemed conveyance to the Petitioner. Respondent Nos. 3 and 4's case, as set out in the said Writ Petition No. 2287 of 2013, is primarily that Respondent No. 5 i.e. Tanna Enterprises, the developer, did not comply with its obligations under the Agreements dated 12 th February, 1980 and 18th June, 1980 SSP 15/36 wpl 6838 of 2020.doc and, therefore, the assignment of rights in favour of Respondent No. 5 stood cancelled and consequently the deemed conveyance granted in favour of the Petitioner is erroneous and deserves to be set aside. 26.7 On 6th March, 2013, the Learned Single Judge of this Court passed an Order in Writ Petition No. 2287 of 2013. The relevant portion of the Order dated 6th March 2013 is reproduced hereunder :
"Issue notice returnable after four weeks.
2. By way of ad interim Order it is directed that the impugned Order shall stand stayed only so far as it relates to observation regarding the promoters being made lessees of the society on account of holding land document on their behalf."
26.8 Subsequently, by an Order dated 3rd September 2013, the Learned Single Judge of this Court admitted Writ Petition No. 2287 of 2013. The relevant portion of the Order dated 3 rd September 2013 is reproduced as follows :
"2. Rule.
3. During the pendency of the Writ Petition, ad interim granted earlier shall remain in force."
26.9 On 8th September 2017, the Petitioner Society executed and SSP 16/36 wpl 6838 of 2020.doc registered the unilateral Deemed Conveyance in respect of the said Plot. 26.10 On 7th October 2017, by a Mutation Entry No. 586 of 2017, the name of the Petitioner Society was mutated in the Property Register Card as the owner of the said Plot.
26.11 In December 2017, Respondent Nos. 3 and 4 filed a Contempt Petition No. 67 of 2018 in Writ Petition No. 2287 of 2013. Respondent Nos. 3 and 4 alleged that the execution and registration of deemed conveyance was in alleged violation of the said two Orders dated 6 th March 2013 and 3rd September 2013, of this Court.
26.12 Thereafter, the Petitioner received a letter dated 12 th February 2018 (Impugned Letter at Exhibit K to the Petition), addressed by Respondent No. 1 to Respondent No. 2 by which Respondent No. 1 sought to issue directions to Respondent No. 2 to cancel the mutation of the name of the Petitioner Society on the Property Register Card pertaining to the said Plot. 26.13 In response to the letter dated 12 th February 2018, the Petitioner Society by its letter dated 7th March 2018, called upon Respondent No. 1 to forthwith withdraw and cancel the said letter.
26.14 Subsequently, Respondent No. 1 addressed another letter dated 18 th June, 2018 (Impugned Letter at Exhibit M to the Petition) to Respondent No. 2 SSP 17/36 wpl 6838 of 2020.doc and once again, sought to direct Respondent No. 2 to delete the mutation of the name of the Petitioner Society on the Property Register Card till further Orders were passed in Writ Petition No. 2287 of 2013.
26.15 Thereafter, the Petitioner sought a clarification of the earlier Orders passed in respect of the said Plot from the Learned Single Judge of this Court in Writ Petition No. 2287 of 2013 and by an Order dated 14 th August, 2018 read with Order dated 24th August 2018, the Learned Single Judge of this Court, after hearing Advocate for Respondent Nos. 3 and 4, clarified that there was no bar on the redevelopment of the said Plot save and except the area of 475.58 sq. mts.
26.16 Immediately thereafter, the Petitioner Society, through its Advocates, addressed a letter dated 6 th September 2018, to Respondent No. 1, with a copy marked to Respondent No. 2 and called upon Respondent No. 1 to withdraw the letters dated 12th February, 2018 (Impugned Letter at Exhibit K to the Petition) and 17th June, 2018 (Impugned Letter at Exhibit M to the Petition) to enable the Petitioner Society to redevelop their buildings on the said Plot. 26.17 Pursuant to the said letter dated 6 th September, 2018, the officers of Respondent No. 2 visited the said Plot on 15 th October 2018, for the purpose of demarcating the said Plot and to ascertain the exact area vesting with the SSP 18/36 wpl 6838 of 2020.doc Petitioner Society. However, when the officers of Respondent No. 2 arrived for demarcating the said Plot, the Petitioner Society claims that it learnt that Respondent No. 2 had already issued a Mutation Entry No. 619 of 2017 in the Property Register Card. The Mutation Entry No. 619 of 2017 stated that the endorsement of the rights of the Petitioner Society on the Property Register Card stood cancelled till further Orders were passed in Writ Petition No. 2287 of 2013.
26.18 In response, the Petitioner Society, through their Advocates, addressed a letter dated 1st November, 2018 to Respondent Nos. 1 and 2 and also to the District Superintendent of Land Records and called upon (i) Respondent No. 1 to forthwith withdraw the said letters dated 12 th February, 2018 and 17th June, 2018; (ii) the District Superintendent of Land Record to delete the Mutation Entry No.619 of 2017 recorded in the Property Register Card with immediate effect, and (iii) Respondent No. 2 to demarcate the said Plot at the earliest, to enable the Petitioner Society to redevelop the said Plot. 26.19 The District Superintendent of Land Records addressed a letter dated 13th November 2018 to Respondent No. 2 and directed Respondent No. 2 to hold an inquiry pursuant to Order dated 14 th August, 2018 read with Order dated 24th August, 2018 passed by the Learned Single Judge of this Court. SSP 19/36
wpl 6838 of 2020.doc 26.20 The Petitioner Society, then, filed Civil Application No. 615 of 2019 in Writ Petition No. 2287 of 2013 and requested the Learned Single Judge of this Court to clarify its earlier Orders and issue appropriate directions to the Respondents.
26.21 By an Order dated 3rd May 2019 in Civil Application No. 615 of 2019, the Learned Single Judge of this Court stayed the effect and operation of letters dated 12th February 2018 and 17th June 2018 addressed by Respondent No. 1, till the next date of hearing. The relevant portion of the Order dated 3 rd May 2019, is reproduced as follows :
"5. Till next date of hearing ad interim reliefs in terms of amended prayer clause (a1)."
26.22 Respondent Nos. 1 and 2, however refused to take any steps. By letter dated 16th May 2019, the Advocates for the Petitioner once again inter alia called upon Respondent No. 1 to forthwith withdraw the said letters dated 12 th February 2018 and 17th June 2018.
26.23 The Petitioner then filed an application before Respondent No. 1 on 1st October 2019, calling upon Respondent No. 1 to withdraw the letters dated 12th February 2018 (Impugned Letter at Exhibit K to the Petition) and 17 th June SSP 20/36 wpl 6838 of 2020.doc 2018 (Impugned Letter at Exhibit M to the Petition). 26.24 Pursuant thereto, Respondent No. 1 held several hearings, more particularly on 25th October 2019, 15th November 2019, 29th November 2019, 20th December 2019, 24th January 2020 and 28th January 2020, to address the issue.
26.25 By a letter dated 12th February 2020 (Impugned Letter at Exhibit U to the Petition), Respondent No. 1 directed the Petitioner to get final Orders in the Writ Petition No. 2287 of 2013.
26.26 In these circumstances, the Petitioner Society approached this Court against the Respondents by filing the present Writ Petition. The relevant events that have taken place after filing of the present Writ Petition have already been noted above.
27. Shri Sharan Jagtiani, the learned Senior Advocate representing the Petitioner made the following submissions :
27.1 That the Orders dated 6th March 2013 and 3rd September 2013, passed by this Court in Writ Petition No. 2287 of 2013 do not stay the grant of conveyance in favour of the Petitioner Society. The Orders seek to stay the observations in the Order granting deemed conveyance only to the extent of the promoters i.e. Respondent Nos. 3 and 4 and their predecessors in interest being SSP 21/36 wpl 6838 of 2020.doc lessees of the Petitioner Society in respect of the area of 475.58 sq. mts. 27.2 That subsequent to these Orders passed by this Court, the Petitioner Society executed and registered the unilateral deemed conveyance in respect of the said Plot on 8th September, 2017.
27.3 That Respondent Nos. 1 and 2's interpretation of the Orders dated 6th March 2013 and 3rd September 2013 was misconceived and perverse. 27.4 That if Respondent Nos. 1 and 2 were of the view that the Orders passed by this Court were ambiguous or lacked clarity, it was incumbent upon them to approach this Court and seek the requisite clarification. 27.5 That subsequent to Orders dated 14 th August 2018 and 24th August 2018 in the said Contempt Petition and Order dated 3 rd May 2019, in the said Civil Application, Respondent Nos. 1 and 2 ought not to have created any impediment in the mutation of the Petitioner's name in the Property Register Card.
27.6 That the Petitioner Society was unable to proceed with the redevelopment of its buildings as the said Plot would be required to be demarcated. Moreover, the MCGM could not process any plans submitted on behalf of the Petitioner's without the Petitioner's name being inserted in the Property Register Card.
SSP 22/36
wpl 6838 of 2020.doc 27.7 That the Petitioner's buildings are in an extremely dilapidated condition and that the lives and property of the members of the Petitioner are severely endangered. That a balcony on the 3 rd floor of 'A2' Wing of the Society Petitioner building collapsed in December 2020 and a portion of 1 st floor of the 'B' Wing of the Petitioner Society building collapsed on 16 th April 2021. 27.8 That the reports submitted by M/s Shetgiri & Associates, the independent architect and structural engineer appointed by this Court confirmed the Petitioner's contention that the Petitioner's buildings were in an extremely dilapidated condition and was incapable of being repaired. 27.9 That Respondent Nos. 3 and 4 had no right to obstruct the redevelopment of the Petitioner's buildings and it was incumbent upon them to institute independent proceedings to assert their alleged right or title in the said Plot or any portion thereof.
27.10 That the letters dated 12 th February 2018 (Exhibit - "K" to this Petition), 18th June 2018 (Exhibit - "M" to this Petition) and 12 th February 2020 (Exhibit - "U" to this Petition) issued by Respondent No. 1 and the Mutation Entry No. 619 of 2017 in the Property Register Card (Exhibit - "I" to this Petition) were arbitrary, perverse and effectively defeated the Order dated 5 th January 2013 granting unilateral deemed conveyance in favour of the Petitioner. SSP 23/36
wpl 6838 of 2020.doc 27.11 That pending the hearing and disposal of the present Petition, it was only just and equitable that the effect and operation of the letters dated 12 th February, 2018 (Exhibit - "K" to this Petition), 18 th June, 2018 (Exhibit - "M" to this Petition) and 12th February 2020 (Exhibit - "U" to this Petition) issued by Respondent No. 1 and the Mutation Entry No. 619 of 2017 in the Property Register Card (Exhibit - "I" to this Petition) were stayed.
28. Shri Tripathi, Learned Advocate representing Respondent Nos. 3 and 4 submitted as follows:
28.1 That Respondent Nos. 3 and 4 were occupying a bungalow on a smaller portion admeasuring 475. 58 sq. mts. or thereabout forming part of the said Plot.
28.2 That the Writ Petition No. 2287 of 2013 filed by Respondent Nos. 3 and 4 challenging the Order dated 5th January 2013, granting unilateral deemed conveyance of the said Plot in favour of the Petitioner Society was pending adjudication before this Court.
28.3 That the Orders dated 6th March 2013 and 3rd September 2013, passed by this Court in Writ Petition No. 2287 of 2013 stayed the grant of conveyance in favour of the Petitioner.
28.4 That the actions of Respondent No. 1 seeking to negate the SSP 24/36 wpl 6838 of 2020.doc mutation of the Petitioner's name in the Property Register Card were valid and in consonance with the Orders dated 6th March 2013 and 9th September 2013, passed by this Court in Writ Petition No.2287 of 2013. 28.5 That the Petitioner Society had sought similar reliefs in Civil Application No. 615 of 2019 in Writ Petition No. 2287 of 2013 and accordingly the reliefs sought in the present petition are not maintainable. 28.6 That the Petitioner's buildings were not in a dilapidated condition and are capable of being repaired.
28.7 That the rights sought to be asserted by Respondent Nos. 3 and 4 in the said Plot would be irretrievably defeated if the reliefs sought in the present petition were granted.
28.8 That there is an underground water tank which supplies water to the bungalow occupied by Respondent Nos. 3 and 4. A portion of this water tank is situated on the said Plot which the Petitioner Society seeks to redevelop. If the relief sought by the Petitioner is granted, it would adversely affect the water supply to the bungalow occupied by the Respondent Nos. 3 and 4. 28.9 After the Technical Inspection Report was submitted before this Court by M/s. Shetgiri Associates, Shri Tripathi submitted that the proposed redevelopment would adversely affect the underground water tank, pump room SSP 25/36 wpl 6838 of 2020.doc and servant's room. He further submitted that any such proposed redevelopment must not hinder the Respondent Nos. 3 and 4's motorable access to their property admeasuring 475.58 sq. mts. 28.10 That no interference was warranted by this Court in the facts and circumstances of the present case.
29. Shri Jagtiani, in rejoinder, submitted, without prejudice to the rights and contentions of the Petitioner, that in the proposed redevelopment of the Petitioner's buildings, the Petitioner Society does not seek to impede upon the smaller portion of 475.58 sq. mts. upon which Respondent Nos. 3 and 4's bungalow is situated and further does not seek to utilise the development potential/FSI in respect of the said portion of 475.58 sq. mts.
30. Shri Jagtiani, upon instructions, stated that without prejudice to the rights and contentions of the Petitioner, the Petitioner society will, at its own expense, relocate the underground water tank and water pump room and servant's room onto the smaller portion of 475.58 sq. mts. Shri Jagtiani further submitted that the Petitioner will ensure that the motorable access to the Respondent Nos. 3 and 4 onto their property of 475.58 sq. mts. shall not be affected or hindered by the proposed redevelopment.
31. Shri Tripathi, on instructions, stated that since the Petitioner has SSP 26/36 wpl 6838 of 2020.doc made statements protecting the interests of the Respondent Nos. 3 and 4 with respect to proposed redevelopment more particularly the underground water tank, pump room, servant's room and motorable access, the Respondent Nos. 3 and 4 will not, in any manner, obstruct or hinder the proposed redevelopment and will cooperate with the Petitioner to facilitate the redevelopment.
32. Although at the hearing held on 5 th January 2022 the contesting Respondent No. 3 and 4 have effectively consented to the redevelopment of the buildings standing on the Petitioner's portion of the plot of land admeasuring 2466.61 sq. mts., subject to the conditions and safeguards noted above, since this matter had been previously argued on merits, we propose to briefly record our reasons for granting the interim reliefs as sought for in the Writ Petition. We have also given due consideration to the two Reports that were obtained through M/s Shetgiri & Associates by consent of the parties and the proposals made by the Petitioner to protect the interest of Respondent Nos. 3 and 4 as noted hereinabove.
33. We have heard Shri Jagtiani, Learned Senior Counsel, appearing for the Petitioner and Shri Tripathi, Learned Advocate appearing for Respondent Nos. 3 and 4 at length and have considered the record before us in detail.
SSP 27/36
wpl 6838 of 2020.doc
34. On perusal of the Orders dated 6th March 2013 and 9th September 2013, passed by the Learned Single Judge of this Court in Writ Petition No. 2287 of 2013, it is clear that the Learned Single Judge has not stayed the Order dated 5th January 2013, granting unilateral deemed conveyance of the said Plot in favour of the Petitioner. The Order dated 6 th March 2013, merely seeks to stay the Order dated 5th January 2013, only to the extent of observations regarding the promoters being made lessees of the Petitioner Society.
35. Our attention is drawn to the Order dated 5th January 2013, passed by Respondent No. 1 more particularly to paragraph 12 thereof, wherein Respondent No. 1 has observed as follows :
"...(out of the said property, the land area 475.58 sq. mts. In the possession of the land owner and a bungalow thereon and other structures, the lease will be made at the nominal rent of Rs. 1/- every year permanently with this condition to the landowner by the Applicant Society)..."
36. From a perusal of the Order dated 6 th March 2013 and the Order dated 5th January 2013, and the relevant portion reproduced herein above, it is prima facie clear that this Court merely sought to stay the Order dated 5 th January 2013, to the extent of the aforesaid observations passed by Respondent SSP 28/36 wpl 6838 of 2020.doc No. 1. This does not at all affect the operation of the conveyance in favour of the Petitioner Society.
37. In our view, the Orders dated 6 th March 2013 and 9th September 2013, do not stay the grant of conveyance of the said Plot in favour of the Petitioner.
38. It appears that in consonance with this understanding of the Orders dated 6th March 2013 and 9th September 2013, Respondent No. 1 registered the unilateral deemed conveyance on 8th September 2017 in favour of the Petitioner Society. In fact, the name of the Petitioner Society was mutated in the Property Register Card.
39. Thereafter, for no apparent reasons, Respondent No. 1, in a complete turnaround, has sought to address letters to the revenue authorities more particularly Respondent No. 2 and contended that this Court by its Orders dated 06th March 2013 and 09th September 2013 had granted a stay on the grant of conveyance during the pendency of Writ Petition No. 2287 of 2013. Acting on the representations addressed by Respondent No. 1, Respondent No. 2 has sought to mutate another Entry No. 619 of 2017 in the Property Register Card and has effectively stayed the mutation of the Petitioner's name in respect of the said Plot.
SSP 29/36
wpl 6838 of 2020.doc
40. In our view, the actions of the part of Respondent Nos. 1 and 2, more particularly Respondent No. 1, are prima facie arbitrary and based on an erroneous understanding of the Orders dated 6 th March 2013 and 3rd September 2013, passed by the Learned Single Judge of this Court. 41 In any event, Respondent No. 1 is a party to the Writ Petition No. 2287 of 2013 and if it was of the view that there was any ambiguity in the Orders passed by the Learned Single Judge of this Court, it was incumbent upon Respondent No. 1 to approach this Court and seek necessary clarifications.
42. Instead, it appears, Respondent No. 1 sought to disregard the repeated representations made by the Petitioner. Respondent No. 1 also sought to disregard the clarifications issued by the Learned Single Judge of this Court by the Orders dated 14th August 2018 read with 24th August 2018, noted above.
43. Similarly, despite the Order dated 3 rd May 2019, passed in Civil Application No. 615 of 2019 by the Learned Single Judge of this Court staying the effect and operation of the letters dated 12 th February 2018 and 17th June 2018, Respondent No. 2 refused to delete the Mutation Entry No. 619 of 2017 which effectively stayed the insertion of the Petitioner's name in the Property Register Card of the said Plot.
44. In light of the above, we are of the prime facie view that the letters SSP 30/36 wpl 6838 of 2020.doc dated 12th February 2018, 18th June 2018 and 12th February 2020, issued by Respondent No. 1 and the Mutation Entry No. 619 of 2017 are arbitrary and based on a patently incorrect reading of the Orders dated 6 th March 2013 and 3rd September 2013.
45. In so far as the objections raised by Respondent Nos. 3 and 4 with respect to the maintainability of the present Petition, our attention was drawn by the Advocate for the Respondent Nos.2 and 3 to the reliefs sought by the Petitioners in Civil Application No. 615 of 2019 filed in Writ Petition No. 2287 of 2013. It was pointed out that the amended prayer clause (a1) therein seeks an interim stay on the effect and operation of the letters dated 12 th February 2018 and 17th June 2018, issued by Respondent No. 1 and similar reliefs are sought by the Petitioner Society in the present petition.
46. We, however, do not agree with the contention canvassed by the Ld. Advocate for Respondent Nos. 3 and 4. The scope of the Civil Application No. 615 of 2019 filed in Writ Petition No. 2287 of 2013 is limited. It is important to note that the said Writ Petition No. 2287 of 2013 was filed by Respondent Nos. 3 and 4 seeking to challenge the Order dated 5 th January 2013 passed by Respondent No. 1. The interim relief sought by the Petitioner (a Respondent in Writ Petition 2287 of 2013) by way of a Civil Application in such a Petition SSP 31/36 wpl 6838 of 2020.doc would, therefore, not travel beyond the scope of the final reliefs sought in the Petition (L) No.6838 of 2020.
47. Moreover, admittedly in the present case, Respondent Nos. 1 and 2 being statutory authorities have refused to comply with and / or have sought to disregard the Order dated 3rd May 2019, passed in the said Civil Application. In such a situation, in our view, the Petitioner is entitled to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India and seek appropriate reliefs as Petitioner which is the correct course rather than to seek protective orders as Respondents in another Writ Petition.
48. Accordingly, we are of the view that prime facie the Petition filed by the Petitioner Society is maintainable and the objections raised by Respondent Nos. 3 and 4 with respect to the maintainability of the present Petition are misconceived.
49. In considering the application of interim relief it is important to take into consideration the condition and status of the Petitioner's buildings.
50. As already noted hereinabove, the Petitioner has pleaded in detail about buildings being in an extremely dilapidated condition and has set out particulars of instances where portions of its buildings have collapsed. The Petitioner has also pointed out that the MCGM has issued notices under SSP 32/36 wpl 6838 of 2020.doc provisions of the MMC Act 1888 directing the Petitioner to conduct a structural audit of its buildings.
51. We have considered in detail the two Reports dated 16 th June 2021 pertaining to Wing A1, A2 and Wing B of the Petitioner's buildings, submitted before this Court by an independent architect and structural engineer M/s. Shetgiri & Associates.
52. It is undisputed that the Petitioner's buildings were constructed almost 40 years ago. From a perusal of the reports dated 16 th June 2021, it is evident that the Petitioner's buildings are in an extremely dilapidated condition and are not capable of repairs. Furthermore, as set out in these reports, the Petitioner's buildings are required to be forthwith vacated and demolished to ensure that no harm is caused to any of the residents of the buildings or persons in the vicinity. Any damage or harm to life or property must be avoided especially when the Petitioner's have made out a strong prima facie case on merits.
53. In our view, at this stage, it is imperative that the redevelopment of the Petitioner's buildings is facilitated to ensure the safety of people and property in the vicinity of the said buildings. This Court is required to consider the balance of convenience. In light of the statement made by Shri Jagtiani, SSP 33/36 wpl 6838 of 2020.doc Learned Senior Counsel appearing on behalf of the Petitioner, that the Petitioner will not utilise the development potential/FSI in respect of the smaller portion of 475.58 sq. mts., which is occupied by Respondent Nos. 3 and 4, which statement is noted as an undertaking to Court, we are of the view that no prejudice would be caused to Respondent Nos. 3 and 4 if the reliefs as sought by the Petitioner are granted.
54. Furthermore, so far as the issue pertaining to the underground water tank and water pump room and servant's room being affected by the proposed redevelopment is concerned, Shri Jagtiani's statement, that the Petitioner, at its own expense, will relocate the underground water tank, water pump room and servant's room on to the smaller portion of 475.58 sq. mts., sufficiently protects the interest of Respondent Nos. 3 and 4. The statement is noted as an undertaking given to the Court. As noted in the Report of M/s Shetgiri & Associates dated 5th January 2022, no other structures of Respondent No. 3 and 4 are found on the Petitioner's portion of the land.
55. We also note, as an undertaking to the Court, Shri. Jagtiani's statement that the redevelopment will not affect Respondent No. 3 and 4's motorable access, if any, to their portion of 475.58 sq.mts. through the plot conveyed to the Petitioner and on which the redevelopment will take place. SSP 34/36
wpl 6838 of 2020.doc
56. We have also noted Shri Tripathi's statement that since the Petitioner has given undertakings to this Court protecting the interest of the Respondent Nos. 3 and 4, the Respondent Nos. 3 and 4 will ensure that they will not, in any manner, obstruct or hinder the proposed redevelopment and will cooperate with the Petitioner to facilitate the redevelopment. The statement is accepted as an undertaking given to the Court.
57. In view of the above, we are of the view that a case has been made out for grant of interim reliefs as prayed for by the Petitioner so as to enable the Petitioner Society to take steps for redevelopment of the said buildings, subject to the statements noted above. Accordingly, we pass the following interim Order:
(a) Pending the hearing and final disposal of the present Petition, the effect and operation of the letters dated 12 th February, 2018 (Exhibit - "K" to this Petition), 18th June, 2018 (Exhibit - "M" to this Petition) and 12th February, 2020 (Exhibit - "U" to this Petition) issued by Respondent No. 1 and the Mutation Entry No. 619 of 2017 in the Property Register Card (Exhibit - "I" to this Petition) is stayed.
58. The statements of the Petitioner's and Respondent Nos 3 and 4 recorded hereinabove are all accepted as undertakings given to the Court. SSP 35/36
wpl 6838 of 2020.doc
59. No Order as to costs.
60. Writ Petition No. (L) 6838 of 2020 and Writ Petition No.2287 of 2013 to come up for hearing in due course.
61 All concerned will act on an ordinary copy of this order duly authenticated by the Associate of this Court.
( MILIND N. JADHAV, J. ) ( S.J.KATHAWALLA, J. )
SSP 36/36