Bombay High Court
Kiran Nanik Motwane And Anr vs Uday Indukumar Jasani And 16 Ors on 26 August, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1450 OF 2019
IN
SUIT NO.843 OF 20198
Kiran Nanik Motwane and Anr. ....Applicants/Plaintiffs
Vs.
Uday Indukumar Jasani and Ors. ....Defendants
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Mr. Vishal Kanade a/w. Mr. Anirudh Harinai, Mr. Virendra Pereira,
Ms. Meghna Talwar and Ms. Aneesha Munshi i/b. Divya Shah Associates for
applicants/plaintiffs.
Mr. Dinyar Madon, Senior Advocate a/w. Ms. Aakansha Agarwal and
Ms. Sanidha Aijgavkar i/b. Maneksha and Sethna for defendant nos.1 and 2.
Mr. A. Y. Sakhare, Senior Advocate a/w. Mr. Dadasaheb Shingade for
defendant nos.3 to 8 (MCGM).
Ms. Kathleen Lobo i/b. Khaitan and Co. for defendant nos.12 and 13.
----
CORAM : K.R.SHRIRAM, J.
DATE : 26th AUGUST 2019 P.C.: 1 Plaintiffs have approached this Court seeking ad-interim relief
primarily in terms of prayer clauses - (a) and (b) at this point of time and the same read as under :
(a) pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an interim order and injunction restraining defendant nos.1 and 2, their employee, agents and servants, or any person claiming by or through them, from carrying on construction of any kind on Plot No.A (being old Plot No.435A corresponding to C.T.S. Nos.E/323 (part) and E/325 collectively admeasuring 795.176 square metres or thereabouts.
(b) pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an interim order of injunction restraining defendant nos.1 and 2 from allotting flats and/or executing any agreements, arrangements or understandings with third parties, inducting them into the flats proposed to be constructed in the building on Plot No.A (being old Plot No.435A corresponding to C.T.S. Nos.E/323 (part) and E/325 collectively admeasuring 795.176 square metres or thereabouts.
Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 2/13 23.NMS-1450-2019.doc There are various grievances raised in the plaint including challenging the permissions granted by defendant nos.3 to 8. For the purpose of this ad-interim application, we need not go into those in detail. 2 One Motwane Private Limited (MPL) was the owner of a plot of land admeasuring 3475.80 square metres or thereabouts situated and lying at 14th and 15th Road, Khar (West), Mumbai - 400 052 (larger property). Motwane Private Limited was controlled by three brothers and therefore, portions of the larger property, more particularly described as Plot Nos.A,B and C, were conveyed to plaintiffs and defendant nos.9 to 17. The larger property now stands sub-divided as Plot Nos.A, B and C. Plot No.A went to defendant nos.9, 10 and 11. Plot No.B went to plaintiff no.1, plaintiff no.2 and defendant nos.12 to 17. Plot No.C went to defendant no.9 and defendant no.11. By Deeds of Conveyance, MPL conveyed and transferred the entire larger property, i.e., Plot Nos.A, B and C as mentioned earlier, to the respective parties. At the time of conveyance, no sub-division of the larger plot was made and it was agreed in the three Deeds of Conveyance that they would apply through an Architect appointed by them jointly, with MPL, to defendant no.3, i.e., Municipal Corporation of Greater Mumbai, for sub-division of the larger property into Plot Nos.A, B and C in terms of their areas under the respective Deeds of Conveyance. An application was made in January 2003 seeking approval for sub-division of the larger property into Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 3/13 23.NMS-1450-2019.doc three sub-plots. The approval was granted by defendant nos.3 to 7.
Defendant nos.9, 10 and 11, who became the owners of Plot No.A sold their right and interest in the plot to defendant no.2. Defendant no.1 is the director of defendant no.2.
3 Sometime in September 2009, plaintiffs and defendant no.14, as alleged in the plaint, learnt that the then owners of Plot No.A had negotiated with defendant no.2 for the redevelopment of Plot No.A. Plaintiffs and defendant no.14 also later learnt that the owners of Plot No.A had entered into an Agreement dated 16 th February 2010 with defendant no.2 for the said purpose. In or around August 2013, plaintiffs and defendant no.14 observed that defendant nos.1 and 2 had constructed podium columns touching the common perimeter between Plot No.A and Plot No.B without leaving the requisite margin/pathway or open space as required under the Development Control Regulations. Plaintiffs and defendant no.14, therefore, approached their Chartered Architect, one N.N. Razdan and requested him to conduct an on-site inspection, to assess the situation and submit a report. Plaintiffs and defendant no.14 received a report dated 18th November 2013 from the said Chartered Architect listing various violations of Development Control Regulations that defendant no.2 had committed. Copy of the report is annexed to the plaint.
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4 Of the many violations, some of which are also listed in the
plaint, the main violation with which plaintiffs and defendant no.14 are really concerned is that the minimum distance from shared perimeter has not been kept by defendant no.2 in the building under construction in Plot A. As per the Development Control Regulations, defendant no.2 was required to keep a minimum distance from the perimeter/boundary with Plot No.B. Defendant no.2 has not left an open space/pathway on the north and west side of the new building being constructed by it on Plot No.A. Towards the north side, the new building has been offset from the ground floor structure on Plot No.B of plaintiffs instead of the perimeter/boundary of Plot No.A as required under the Development Control Rules. It is alleged that defendant no.2 has also constructed a column for a podium, touching the perimeter/ boundary between Plot Nos.A and B, leaving no space on the west side of the new building on Plot No.A. According to plaintiffs, these acts will result in severe loss to plaintiffs and defendant no.14 and to other owners of Plot No.B as this would require such persons to leave further open space in the form of a pathway when they opt to redevelop Plot No.B. 5 When plaintiffs learnt of these violations by defendant no.2 and when plaintiffs and defendant no.14 realised that even their rights are going to be severely prejudiced by the acts of defendant no.2, plaintiffs and defendant no.14 addressed a communication dated 24th December 2013 to Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 5/13 23.NMS-1450-2019.doc defendant no.4, wherein they recorded inter alia the facts relating to the illegal construction being carried out by defendant nos.1 and 2. Plaintiffs and defendant no.14 also called upon defendant no.4 to issue a formal order of approval of layout and sub-division and complete all necessary formalities immediately, issue a stop work notice in respect of the illegal construction activities being carried by defendant no.2 on Plot No.A, order demolition of the podium illegally constructed by defendant no.2 on the common periphery of Plot No.A and Plot No.B and revoke the amended IOD and CC issued by defendant no.3.
6 Plaintiffs did not receive any response but it later came to know that the stop work notice had been issued on 24th January 2014 under the provisions of Section 354A of the MMC Act, 1881. On 12 th July 2016, defendant no.9 and Mrs. Hardevi Motwane, to whom the Plot No.A had been conveyed earlier, had issued a public notice revoking the power of attorney dated 18th February 2011 issued in favour of defendant no.2. In or around late June 2018, plaintiffs noticed that defendant no.2 had recommenced its illegal construction on Plot No.A. Plaintiffs were under the impression that the stop work notice was still valid. Plaintiffs also came to know that defendant nos.6 and 7 on their own volition had issued a No Objection letter dated 22nd June 2018 permitting defendant no.1/defendant no.2 to recommence construction on Plot No.A and granted Commencement Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 6/13 23.NMS-1450-2019.doc Certificate (CC) up to the 16th floor habitable floor. 7 Mr. Kanade submitted that defendant nos.1 and 2 were always aware that they had right only with respect to 795 square metres of Plot No.A where development activities could be carried out. Mr. Kanade submitted, relying on a plan submitted by one C.L. Pradhan, Architect and Project Consultant of defendant nos.1 and 2, to show that the area of notional sub-divided plan, as per the property registration card, was only 795.176 square metres but defendant nos.1 and 2 had illegally submitted that the area of plot as per the approved layout was 3475.75 square metres. Mr. Kanade submitted, and rightly so, that 3475.75 square metres included plots of plaintiffs and that could not have formed part of approved layout. Mr. Kanade also submitted that pursuant to an undertaking made on 5th September 2010 signed by Mrs. Hardevi H. Motwane and defendant no.9 and defendant no.1, defendant no.1 was aware that the area of the Plot No.A is only 795.176 square metres and he had also given an undertaking that he shall not use more than the TDR/FSI of the said Plot No.A admeasuring 795.176 square metres as may be permissible by the BMC. Defendant no.1 had also undertaken that he shall adhere to the said layout plan and the plot lines and areas as shown in the sub-division layout submitted to the BMC. Mr. Kanade also submitted that even the Municipal Commissioner in his order dated 19th May 2015, copy whereof is at Exhibit Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 7/13 23.NMS-1450-2019.doc "X" to the plaint, has noted "........... however, the open spaces shall be recalculated from the boundaries of the notionally divided sub-plot ". Therefore, defendant nos.1 and 2 were always aware that the plans they submitted were fraudulent and actually encroached into the rights of owners of Plot No.B and defendant nos.1 and 2 could not have constructed the building the way it has been done and then claim equity. Mr. Kanade also relied upon an order dated 7 th November 2015 passed by the Municipal Corporation, which of course is also challenged, where with regard to neighborhood safety and joint open space it is noted "Hence, L.S. has requested not to insist NOC from neighborhood building". L.S. means licensed surveyor and neighborhood building was in Plot B. This itself shows that for giving permission also the NOC from neighborhood building, i.e., owner of Plot No.B, was required.
8 All these have also been admitted by respondents in their affidavit in reply. Mr. Kanade states that if the building is allowed to be completed and in the way the plan is submitted, plaintiffs will not be able to fence the boundary of the sub-divided Plot No.B (with which Mr. Madon agreed) and Plot No.B will also get amalgamated with Plot No.A, which defendant nos.1 and 2 are not entitled to seek. Mr. Kanade, therefore, states that in the interest of justice, ad-interim in terms of prayer clauses - (a) and
(b) ought to be granted otherwise plaintiffs will be left remedyless.
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9 Mr. Madon appearing for defendant nos.1 and 2 submitted that
(a) Corporation had given all permissions and the construction was being done in accordance with the permissions given by the Corporation and therefore, whatever defendant no.2, through defendant no.1, was doing are all legal and the Court should not interfere, (b) defendant no.2 has created third party rights and those persons are not made party to the suit and they will be affected if an order as prayed for is granted, (c) plaintiffs kept quite and allowed their alleged rights to be violated. Plaintiffs came to know in 2013 that their alleged rights are being violated but they came to this Court only in 2019 and therefore, plaintiffs claim is also barred by limitation, (d) Corporation has condoned any lapse on the part of defendant nos.1 and 2 and therefore, the Court should not interfere and stop construction. 10 At the outset, I would say if I accept any of Mr. Madon's submissions, it would be placing a premium on dishonesty by defendant nos.1 and 2. As could be seen in the affidavit in reply, defendant nos.1 and 2 always knew that the right, that was created in their favour, was restricted to Plot No.A. Defendant nos.1 and 2 were always aware that what was sold to defendant no.2 was only 795.176 square metres being Plot No.A, which was a part of the larger property. On behalf of the owners of Plot No.A, who conveyed to defendant no.2, a public notice was also issued which expressly invited claims only with respect to "795.176 square metres situate, lying Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 9/13 23.NMS-1450-2019.doc and being at the 14th Road, Khar (West), Mumbai - 400 052 and being Plot A of sub divided plots of amalgamated plots originally formed of plot nos. ......". Plaintiffs had also raised an objection vide their letter dated 29th September 2009. In the reply, defendant nos.1 and 2 also state that in October 2010, a temporary demarcation of the sub-plots was carried out by and between plaintiff no.2, defendant nos.1 and 2 and defendant no.9 alongwith surveyors, by placing metal pegs and tin sheets on the notional sub-division lines of the larger property. In paragraph 25 of the reply, defendant nos.1 and 2 state that defendant no.2 purchased TDR for 795 square metres and loaded TDR/FSI for Plot A. 11 It is admitted that plaintiffs had lodged complaints with Municipal Corporation and Municipal Corporation issued a stop work notice, though according to defendant nos.1 and 2 it was not based on plaintiffs' complaint but because defendant no.2 carried out construction beyond what was permitted. This is a very important point to be kept in mind when the ad-interim application is being considered because this is the conduct of defendant nos.1 and 2 who had continued to construct when they did not have permission but in anticipation of obtaining a revised IOD and CC for 12th floor. In 2009 defendant no.2 had approval and obtained IOD for construction upto 4th floor. In 2012 it was revised to 6 th floor. In March 2013 it was revised to 10th floor and in December 2013, defendant Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 10/13 23.NMS-1450-2019.doc no.2 carried out construction utpo 12th floor without permissions but allegedly in anticipation of obtaining all revised IOD and CC for 12 th floor. Now defendant no.2 has obtained, despite the stop work notice of January 2014, permission to go upto 16th floor. Of course that permission is challenged.
12 I would have accepted Mr. Madon's submissions that only in March 2019 plaintiffs came to Court when they knew in June 2018 that BMC had revoked its stop work notice and hence ad-interim should not be granted, provided defendant nos.1 and 2 were innocent parties. Defendant nos.1 and 2 always knew that the rights to Plot No.B were with someone else and therefore, should not have done something which would prejudice the rights of plaintiffs. As noted earlier, defendant nos.1 and 2 always knew that they were encroaching on somebody's rights and therefore, cannot raise a grievance of alleged delay. Defendant nos.1 and 2 continued with their illegal construction at their own risk.
13 As regards Mr. Madon's submissions that BMC having granted permissions and therefore, whatever defendant nos.1 and 2 have done was legal, there is a lot to be said. When defendant nos.1 and 2 knew that they could not have used the rights of Plot No.B, should not have even applied to defendant nos.3 to 8 for permissions the way they applied. Therefore, the permissions, I would say, have been obtained by fraud and based on Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 11/13 23.NMS-1450-2019.doc misrepresentations. This also cannot help defendant nos.1 and 2. It was rather strange, I have to note, that despite the Municipal Commissioner's specific orders that open spaces shall be recalculated from the boundaries of the notionally divided sub plot, still defendant no.2 has managed to have the stop work notice revoked. Admittedly when ex-facie the directions of Municipal Commissioner has not been complied with, I am surprised the officer of BMC have made an endorsement that the licensed surveyor has requested not to insist NOC from neighborhood building. 14 As noted above, defendant nos.1 and 2 always knew that what they were doing was not legally correct. Defendant nos.1 and 2 always were aware of the endorsement by the Municipal Commissioner that " open spaces shall be recalculated from the boundaries of the notionally divided sub plot". Looking at the plans prepared by Architect of defendant nos.1 and 2, it is quite obvious that the distance calculated is from the wall of the existing bungalow in Plot No.B and not from the notionally divided sub plot. Defendant no.2 through defendant no.1 is a builder who had continued with illegal construction upto 12th floor though it did not have permission to continue and had permission only upto 10th floor. Here is a builder who always was aware that he/it could not have used Plot No.B for getting any permission for its construction in Plot No.A. Despite objections, defendant nos.1 and 2 have gone ahead with the illegal construction activities and Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 ::: 12/13 23.NMS-1450-2019.doc therefore, such a party deserves no mercy and has to be stopped. Moreover, if one sees the approved plans, there is hardly any space for even a small motor car to pass in the north side. I shudder to think of a situation where there is a fire, no fire engine can pass between the building coming up and the boundary of Plot No.A. That would result in disaster and many lives will be lost apart from loss of property. Defendant no.2 through defendant no.1 is playing with life of people.
15 As regards third party rights being created, Mr. Kanade states that the Maharashtra Real Estate Regulatory Authority website states that only three flats have been sold but with whom, plaintiffs have no locus. I agree with Mr. Kanade. Moreover, if they had only investigated the title of defendant no.2 and also inspected the site, they would have known that whatever defendant no.2 was indulging in may not be wholly legal. Further if those people are prejudiced, they may look to defendant nos.1 and 2 for return of money paid or compensation.
16 In the circumstances, ad-interim in terms of prayer clauses - (a) and (b), quoted above, is granted. A copy of this order be sent to Maha RERA authorities by plaintiffs for their information. Defendant nos.1 and 2 shall also upload/inform Maha RERA about this order on the Maha RERA website.
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17 Should defendants wish to file a further affidavit in reply, since
Mr. Madon states that the reply filed was only a preliminary reply to oppose ad-interim, they may do so and serve a copy on plaintiffs within two weeks from today. Rejoinder, if any to be filed and copy served within two weeks thereafter.
18 Notice of motion to come up for hearing in due course after six weeks.
(K.R. SHRIRAM, J.) Gauri Gaekwad ::: Uploaded on - 28/08/2019 ::: Downloaded on - 28/08/2019 20:59:23 :::