Bombay High Court
Shah Abbas Khan And Mrs. Zarine Khan vs Neil John Creado And 5 Ors on 16 January, 2019
Author: G.S. Patel
Bench: G.S. Patel
3-NMS1599-10.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1599 OF 2010
IN
SUIT NO. 1571 OF 2010
Neil John Creado & Ors ...Plaintiffs
Versus
Shah Abbas Khan alias Sanjay Khan & Anr ...Defendants
WITH
NOTICE OF MOTION NO. 3614 OF 2011
IN
SUIT NO. 2985 OF 2011
Shah Abbas Khan alias Sanjay Khan & Anr ... Plaintiffs
Versus
Neil John Creado & Ors ... Defendants
AND
SUIT NO. 508 OF 2007
Silver Beach Victor CHSL ... Plaintiffs
Versus
Vee Gee Creado Construction & Developer Pvt
Ltd & Ors ... Defendants
Mr Zal Andhyarujina, with RA Shah, Shrey, Palak Patel & Birrul
Mohammedi, I/b Mansukhlal Hiralal & Co., i/b, for the
Plaintiffs in S/1571 of 2010 & for the Defendants in
S/2985/2011.
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16th January 2019
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3-NMS1599-10.DOC
Mr Darius Khambata, Senior Advocate, with Narayan Sahu,
Rohaan Cama, MS Federal, Murtuza Federal, MK Sayed &
Anchal Rohira, I/b M/s. Federal & Rashmikant, for the Plaintiffs
in S/2985/2011 & for the Defendants in S/1571/2010.
Ms Mallika Taly, I/b S Mohammedbhai & Co., for the Plaintiffs in
S/508/2007.
Mr RY Shirsikar, for the MCGM.
CORAM: G.S. PATEL, J
DATED: 16th January 2019
PC:-
1.The Plaintiffs in Suit No. 1571 of 2010 ("the Creado suit") are the Defendants in Suit No. 2985 of 2011 ("the Khan Suit"). The two Defendants ("the Khans") in the Creado suit are the Plaintiffs in the Khan suit. Thus, the parties in both actions are the same. So is the subject matter of the dispute, a large plot of land bearing several survey numbers, corresponding to CTS Nos. 505, 505/1 to 505/25 and 506/2 to 506/6 of Village Juhu, compendiously referred to in the proceedings as the 'Silver Beach Estate'. When hearing the Notices of Motion identify the questions that arise for consideration at least at the interim stage. For the present, and having regard to previous orders, and the endeavour in 2018 to end all disputes, I believe a few directions are necessary before I take up the Motions.
2. This entire estate is apparently now sub-divided, if not officially at least informally, is being carved up into subsidiary plots. The Khans claim to be entitled to what is described as Plot No. 2. One Ranjit Bedi is supposed to have Plot No. 3. On Plot No. 4 is the Page 2 of 6 16th January 2019 ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 04:56:29 ::: 3-NMS1599-10.DOC Sagar Sangeet Cooperative Housing Society. Plot No. 1 seems to have been split into three components. There is what is left of Plot No. 1 after the carve-up. The remainder has been described as Plot "A", belonging to one Rustom Sethna, Defendant No. 6 in the Khan suit, and on Plot "B" stands the Silver Beach Victor CHSL.
3. The entire estate lies to the West of AB Nair Road. The plot abuts the beach at Juhu, which lies to the west of the plot. There is some dispute about the access from the main road (AB Nair Road) westward, but that has been resolved except to the one extent that I will note below. Mr Khambata for the Khans says that the dispute is not only about east-west access off AB Nair Road, but that on the basis of registered documents, his clients, the Khans, are also entitled to use and access the road/path (leaving aside the question of whether this is motorable or pedestrian) that runs more or less in a north-south direction from behind their plot, i.e. on the western side of their plot and then seems to join the east-west access road leading to the beach. There is no dispute that the motorable part of the east-west road does not extend all the way to the western plot boundary. It ends some distance short, and then there is only a pedestrian access to the beachfront.
4. There is quite unfortunately a significant lack of agreement about an accurate map or even a sketch plan of these premises. I do not know whether compound walls have been built around some or all these segregated plots. I do not know whether those compound walls are of brick masonry or some temporary material. More importantly, while both sides seem to agree that the east-west internal access road is, to the extent that it is motorable, broad Page 3 of 6 16th January 2019 ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 04:56:29 ::: 3-NMS1599-10.DOC enough to accommodate a fire tender, it is entirely unclear whether there is sufficient space for a fire tender to manoeuvre so as to be able to access in an emergency the Silver Beach Victor CHSL, a seven or eight floor structure that lies at the western extremity of the estate.
5. I will need the MCGM which is not a party to the Creado or Khan suits but which is represented by Mr Shirsikar today here at my request to arrange a site visit. I will require both the Ward Officer and the Chief Fire Officer or someone deputed by the Chief Fire Officer to visit the site. From the Ward Officer, I will need an exact assessment of the width of the internal east-west access road, and a statement as to the perimeter walls around these segregated plots. The Ward Officer will obtain all necessary information if any from the City Survey Officer to ascertain whether there were any roads other than the east-west access at any time and will report whether these still exist on site or not.
6. Meanwhile the Chief Fire Officer or his deputy will render an opinion as to whether the existing internal east-west access is not only sufficiently broad to accommodate a fire tender or fire engine, but also whether additional space is required to enable that vehicle to manoeuvre or turn, and if so where such space should ideally be identified. I am not expecting either side to provide these Officers with a plan because obviously they cannot agree on it. The Chief Fire Officer and the Ward Officer will prepare a sketch plan, even a rough plan which need not be to the scale, but showing the location or estimated location of all these facilities, the walls, the rough location of the structures, and showing their suggestions.
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7. I am also now directing the Court Receiver to accompany these municipal officers to site and I will request the Court Receiver to coordinate with Mr Shirsikar to set up an appointment. The Court Receiver is to inform the Advocates of both sides of the date and time site visit. A limited number of legal representatives of both sides, no more than two representing the Khans and two representing the Creados, are at liberty to remain present at the site visit. Two clients' representatives on each side and no more may in addition be present.
8. The Court Receiver's representatives will take photographs of the site and various portions of the Silver Beach Estate.
9. I expect this report will take some time. Copies of the report from the Court Receiver with photographs (only in soft copy) and copies of the MCGM report and recommendations will be given to the Advocates for both sides on or before 8th February 2019. None are to respond to any of these until I have seen them.
10. No further Affidavits in any Motion under any circumstances are to be filed without leave of the Court, except for a brief response by the Defendants in the Khan suit to the Additional Affidavits dated 4th December 2018 filed by Mr Sanjay Khan.
11. The Advocates for the Plaintiffs in both suits will furnish Mr Shirsikar with a copy of the plaints in both suits as also copies of the relevant annexures or plans for Mr Shirsikar's officers' reference.
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12. Ms Tally is present. She represents the Silver Beach Victor CHSL. It has filed its own Suit No. 508 of 2007. That will also be listed on the next date along with these matters. The Court Receiver will ensure that M/s. S Mohammedbhai & Co., will be given notice of the site visit. Two representatives of the Silver Beach Victor CHSL and two legal advisors may remain present at the time of the site visit.
13. List the matter for directions on 14th February 2019.
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