Bombay High Court
Deepak Builders Pvt.Ltd vs Ebasco Finance Pvt.Ltd.& Anr on 21 February, 2019
Author: G.S. Patel
Bench: G.S. Patel
914-CONP3-15.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO. 3 OF 2015
IN
SUIT NO. 1457 OF 2001
Deepak Builders Private Limited ...Petitioner
Versus
Ebasco Finance Private Limited & Ors ...Respondents
Dr B Saraf, with Mr Rohan Sawant, i/b Yogesh M Adhia, for the Petitioner.
Mr Pradeep J Thorat, for Respondents Nos. 1 and 2.
CORAM: G.S. PATEL, J
DATED: 21st February 2019
PC:-
1. Mr Thorat on behalf of the 2nd Respondent tenders an Affidavit dated 21st February 2019. By this, the 2nd Respondent withdraws the letter dated 25th June 2016 at page 112A of the Contempt Petition. He also undertakes not to issue any such letter in future and not to obstruct the right of way provided in the Consent Terms dated 2nd August 2001 filed in Suit No. 1457 of 2001. The Affidavit is taken on record. The statements are noted and the undertakings are accepted as undertakings to the Court.
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2. Dr Saraf on behalf of the Petitioner had earlier made a grievance about a notice board said to have been placed by the 2nd Respondent on the property. Mr Thorat on instructions from the 2nd Respondent who is present in Court confirms that that notice board annexed at page 98 of the Petition was removed a long time ago. There is now a different board. A photograph of this is shown to me. It is taken on record and marked 'T1' for identification with today's date. However, I find that even this board is unsatisfactory. The first paragraph of the board mentions that the 2nd Respondent's company "has all rights in the above order" but there is no order mentioned. Then there is a mention of 'litigation', a Court order of 20th November 2006, and an allegation of non- payment of development, maintenance and security charges. This may well be the subject matter of a pleading or filing in this Court. A public notice board is not a pleading and none of these allegations need to be on that board. The 2nd Respondent agrees and undertakes that he will replace this board within 48 hours with one that only states the following:
"Plot Z2, Bhawani Nagar, Marol Maroshi Road, CTS No.109/12-A of Village Marol, Andheri (East) is owned by Ebasco Finance Company Private Limited."
3. Dr Saraf also expresses an apprehension that the right of way which is the subject matter of this Contempt Petition will be effectively blocked if the 2nd Respondent is allowed to park his cars across it. Mr Thorat clarifies that the 2nd Respondent has his premises near that right of way and actually opening directly on that right of way. His suggestion is that the 2nd Respondent should be permitted to use his motor car to reach his premises, and be Page 2 of 7 21st February 2019 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 20/03/2019 19:49:16 ::: 914-CONP3-15.DOC permitted to board and alight from his car near his premises on that right of way. The Consent Terms provide that the right of way between the Plots Z2 and Z3 is to be left unobstructed but do not prohibit passengers from being dropped off or picked up.
4. As I understand it, there are two plots Z2 and Z3. The Petitioners' building is on plot Z3. The only access to that plot Z3 is via this right of way. Respondent 2A has service apartments and a hotel on the abutting plot or plots. There is a grievance by the Petitioner that the Defendant has obstructed or will obstruct the access of the occupants of the building on Plot Z3 over this right of way. Dr Saraf refers to Clause 7 of the Consent Terms at page 29 which reads thus:
"7. Defendant No.1 agrees and undertakes before this Hon'ble Court and it is ordered that Defendant No.1 shall not obstruct the Plaintiff and/or their agents, servants, workmen, occupiers, directors, assignees, successors in interest and all persons claiming through the Plaintiff and the residents of landlocked properties and all other persons authorised in this behalf from time to time by the Plaintiff from in any manner enjoying the said right of way including going, returning, passing, repassing, ingressing, egressing, either on foot or with animal wagons, trucks, vehicles and all other kinds of automobiles or carriages, laden or unladen upon the said right of way at any time whatsoever."
5. Defendant No.1 in the Consent Terms is evidently the present Respondent No.2A. This clause is altogether too florid, and none of this somewhat Victorian or fin de siècle depiction ('animal Page 3 of 7 21st February 2019 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 20/03/2019 19:49:16 ::: 914-CONP3-15.DOC wagons'; 'carriages'; 'laden or unladen') was either necessary or useful (are roller skates prohibited? Is the use of a Segway going to be the subject of another contempt proceeding?). The only point is that the right of way has to be kept available as a right of way for those on Plot Z3 to access their plot. There seems to be no dispute that the width of this right of way is about roughly eight meters, i.e. approximately 24 feet. There is nothing in Clause 7 that says that reasonable arrangements cannot be made by the occupants of the structures on Plots Z2 and Z3 for the orderly parking of vehicles, both two wheelers and four wheelers (but not, I think, "animal wagons") along one side of this access road, i.e. along the compound wall, but in such a manner that free access along the main right of way is not obstructed. I am not determining the parking rights of the Petitioner or the 2nd Respondent or of the occupants or users of the buildings on either side. That is a matter for those persons to work out on their own, and I think it is reasonable to expect that propertied persons have sufficient common sense and civility to be able to resolve this by themselves, or at least in a dialogue between their lawyers, rather than burdening courts. There can be no blockage of this right of way and there can certainly be no double parking permitted at any time, even overnight. The reason is self-evident. The building on Plot Z3 has only this access road and therefore this width is required for movement of emergency vehicles including fire tenders, ambulances and so on. There cannot, therefore, be any form of obstruction at any time to the free flow of vehicles and pedestrians along this road. There are to be therefore no barriers and no obstructions to this right of way. When it comes to a question of vehicular movement, Page 4 of 7 21st February 2019 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 20/03/2019 19:49:16 ::: 914-CONP3-15.DOC there can be restriction on persons or cars stopping momentarily to allow persons to alight or board their vehicles.
6. There is apparently a drainage or sewer line or culvert parallel to the outer compound wall. The distance between the compound wall and the age of the culvert towards the building can, in my view, reasonably be used for parking two wheelers or four wheelers provided this is done subject to the foregoing conditions. If the 2nd Respondent is to park a vehicle overnight, he may do so provided that vehicle when parked does not consume or occupy more space than this. There is, equally, no restriction in the Consent Terms from the Petitioners' members or occupants parking vehicles along the compound wall. Indeed, from some photographs Mr Thorat shows me it appears that some persons are already parking scooters and two wheelers (in a reasonable fashion) across this covered drain and along the compound wall. I do not see any objection from Respondent No.2 about this.
7. Dr Saraf has no instructions to consent to this portion of the order regarding parking. He also does not accept that the scooters parked and shown in the photographs are those of the Petitioners or the occupants of the building on Plot Z3. That is noted. But I have returned no finding on the ownership of those two-wheelers. I have not accepted that the Z3 plot building occupants are parking there at all. I have only noted that the photograph Mr Thorat tenders, and which he says is very recent, shows some two-wheelers parked. The only point, therefore, is to indicate that some parking along one side or periphery of the right of way appears to be possible without hindering the free movement of all along the right of way and Page 5 of 7 21st February 2019 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 20/03/2019 19:49:16 ::: 914-CONP3-15.DOC without impeding the dropping off and alighting of passengers. To say the right of way is to be kept clear and unobstructed is one thing. That is the provision of the Consent Terms, and I believe the law also demands this, as do our municipal regulations regarding fire safety and emergency access. But it is quite another thing to say that the Consent Terms explicitly require no parking across the entire eight-metre width and along the entire stretch of this right of way.
8. I see no point in residents of the building continuing to waste their time and mine in litigation like this, especially in a city like Mumbai where I think it is undeniable that parking space is extremely hard to come by. An insistence that the entire road width be kept clear is only an invitation to commit a breach, and an open temptation to encroachments. I will leave it to Mr Thorat and Dr Saraf and his attorneys to persuade their clients to evolve a mutually acceptable plan for shared parking without obstructing the right of way, or to make specific arrangements, if that is their wish by mutual understanding, that there should be no parking at all. If they choose to do so, they would be well advised to bear in mind the emergency vehicle requirements stipulated by the Fire Department and the Chief Fire Officer of the MCGM. I am only indicating that there appears to be, even on the 2nd Respondent's own showing, space enough on the right of way to provide for parking; and that if the 2nd Respondent does park a solitary vehicle there, it must be in a manner that causes no obstruction.
9. This is also not a determination of title to the right of way.
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10. The Contempt Petition is disposed of in these terms. The Notice is discharged.
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