Foreshore Co-Operative Housing ... vs Shri Praveen D. Desai And Ors.
2004 Latest Caselaw 554 Bom

JUDGMENT

Anoop V. Mohta, J.

INTRODUCTION :

1. This Notice of Motion has been taken out by the plaintiffs (on the Original Side of the Bombay High Court) in a re-numbered Suit No. 2939 of 1999, originally numbered as Suit No. 655 of 1968 in the Bombay City Civil Court, Bombay, for an order and injunction restraining the defendant Nos. 1 to 6 and 8 or any of them or their Officers claiming any right, title, possession or use or occupation, transferring, alienating, assigning, creating third party rights and/or otherwise dealing with, or carrying out any construction work or activity or from making use of any F.S.I, under the alleged permissions and Certificates and Letter No. EB/5817/Aa dated 8th March, 2004 read with Letter No. EE/BPC/5817/AA dated 9th March, 2004, purported revalidation of the IOD dated 16th June, 1966, and Commencement Certificate dated 20th June, 1966, in respect of "Divya Prabha" i.e. the property in question.

2. These IOD and Commencement Certificate issued in the year 1966 which had lapsed for 30 years, was revalidated for the first time on 20th June, 1996. This Certificate was also challenged and by order dated 10th March, 1997, injunction was granted restraining the defendant Nos. 1 to 6 and 8 from carrying out any construction work. The Court, on 12th November, 1996, has passed a restrainment order against the same defendants.

3. The City Civil Court had also, by order dated 11th March, 1999, had granted injunction against the same defendants from carrying out any construction. Now, defendant No. 7 once again, by letter dated 8th/9th March, 2004, revalidated the IOD and Commencement Certificate issued in the year 1966.

VARIOUS ORDERS AND INCOMPLETE CONSTRUCTION :

4. Strikingly, defendants could not complete the construction for one reason or another, till this date, even though basic permissions and/or sanction to commence the construction had been issued in favour of the concerned defendants in the year 1966. This position is not in dispute. In the result, defendants unable to complete the construction work of "Divya Prabha" till this date and it is admittedly stopped.

5. The defendant-Corporation i.e. Defendant No. 7 has, by letters dated 8th/9th March, 2004, revalidated the said IOD and Commencement Certificate of the year 1966. Those letters have compelled the plaintiffs to move for ad interim relief by way of Notice of Motion No. 1596 of 1999 dated 15th March, 2004. The plaintiff withdrew the said Notice of Motion on 19th March, 2004, with liberty, to amend the Plaint, by bringing those revalidation letters of 8th/9th March, 2004, on record.

6. A Chamber Summons No. 478 of 2004 for amendment of the plaint was taken out by the plaintiffs on 24th March, 2004, with prayer for ad-interim reliefs. Ad interim reliefs were refused by a reasoned order and basically for the reason that the amendments, as prayed, In the chamber summons for amendment was not decided on merits.

7. Plaintiffs, therefore, preferred an Appeal No. 235 of 2004 against the aforesaid order of refusal of the ad interim reliefs dated 24th March, 2004 and, after hearing both the parties, the Hon'ble Division Bench on 29th March, 2004, restrained defendant Nos. 1 to 6 and 8 from commencing construction until further orders in the Appeal. Para 2 of the said order reads as under :

2. There will be ad interim order in terms of prayer (a) excluding the last clause thereof, namely "from entering the said building or land any part thereof for any purpose", until further orders on the appeal.

8. By the order dated 31st March, 2004, with the consent of the parties, the Chamber Summons No. 478 of 2004 was allowed. On 5th April, 2004, the Hon'ble Division Bench, while disposing of Appeal No. 235 of 2004, has admittedly continued the above mentioned Injunction order, until 26th April, 2004.

9. The plaintiffs have carried out the amendments and taken out the present Notice of Motion on 19th April, 2004, after the expiry of 30 days, from the date of notice under Section 527 of the Bombay Municipal Corporation Act (for short "B.M.C. Act").

10. Plaintiffs, therefore, in support of their Notice of Motion, have filed an Affidavit and relied on the record of Suit No. 2939 of 1999, as well as, Suit No. 655 of 1968, as referred above, apart from the written submissions. All the defendants have resisted the same through their respective Counsels. Defendant Nos. 3 and 4 have filed Affidavit dated 22nd April, 2004, with documents, to oppose the ad interim relief, as prayed by the plaintiffs. Defendant Nos. 3 and 4 have also filed written submissions and opposed grant of ad interim reliefs. The defendant No, 8, defendant Nos. 1 and 2 have not filed any affidavit. However, they relied on the documents on record, alongwith authorities in support of their oral submissions. Plaintiffs' written request or inspection is still not accepted by the concerned defendants.

11. In this background, for ad interim reliefs, the matter was heard on 27th April, 2004. Parties have contested the matter vehemently and made their respective submissions. The preliminary objections to the maintainability of the suit itself were raised. However, on the issue of maintainability, Counsel conceded that in view of Section 9-A(2) of the Civil Procedure Code, at this stage, Court need not go into that aspect and requested to proceed further on the merits of the matter,

12. Any how, Hanamanthappa and Anr. v. Chandrashekharappa and Ors. as relied by the plaintiffs' Counsel based on Order VII, Rule 10A clinches the issue, at least for the purpose of ad interim relief. The relevant extract of the said judgment is reproduced as under :

...The object of Order VII, Rule 10-A is that the plaintiff, on return of the plaint, can either challenge in an appellate forum or represent to the Court having territorial jurisdiction to entertain the suit. In substance, it is a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of the court-fee as had rightly been pointed out by the High Court. Therefore, it cannot be dismissed on the ground that the plaintiff made averments which did not find place in the original plaint presented before the Court of District Munsiff, Navalgund. It is not always necessary for the plaintiff to seek amendment of the plaint under Order VI, Rule 17 of the C.P.C, At best it can be treated to be a fresh plaint and the matter can be proceeded with according to law. Under those circumstances, we do not think that there is any error of law committed by the High Court in giving the above direction.

In the above circumstances, in view of this Supreme Court judgment in the case of Hanamanthappa (supra), different judgments/orders cited by the defendant Nos. 3 and 4 in support of the jurisdiction and maintainability issue needs no further discussion.

13. Mr. Reis. the learned Counsel appearing for the B.M.C. has also resisted the issue that the suit itself is not maintainable in view of the provisions of Sections 45, 47 and 149 of the Maharashtra Regional & Town Planning Act (for short "M.R.T.P. Act") as Civil Court has no jurisdiction to question the action or orders passed by the Bombay Municipal Corporation. He relied on the orders passed in Appeal From Order No. 4145 of 2000 and order dated 12th January, 2000, in Notice of Motion No. 157 of 1998. After going through those orders, I find that in all those matters, ad interim reliefs had been granted and/or atleast extended for a further period inspite of the question of jurisdiction was raised in those proceedings. Both the matters concern and relate to construction activities of the respective premises. One cannot overlook the submission raised by the plaintiff that if action is a nullity or bad in law and such plea, as raised by the parties before the Court, goes to the root of the matter and would, if upheld, may lead to the conclusion that the impugned order or action would be a nullity. Plaintiffs have relied on; Ram Swamp and Ors. v. Shikhar Chand and Anr. .

14. However, without going further into this aspect of maintainability of the Suit, as agitated vehemently by the defendants' Counsel, in the facts and circumstances of the case, or even otherwise, nothing debarred the Court from passing ad interim order and/or to continue the interim order which is in existence since long.

15. The construction activities, pursuant to the various orders between the parties, of the premises in question i.e. Divya Prabha, has been admittedly stopped and/or halted and defendants now, pursuant to the purported revalidation letters dated 8th/9th March, 2004, want to commence the construction which could not be completed even in the year 1966 and/or 1968 or 1997, except minor plastering or bricking, till this date. Thereafter, order of injunction passed by the Division Bench of this Court, restraining the defendant Nos. 1 to 6 and 8 from making further construction, cannot be skate over.

16. Therefore, revalidation letters dated 8th/9th March, 2004, are itself under challenge in the present suit which is pending basically from 1968, and now, the amendment was allowed and thereby those letters are under challenge in the present suit and the same is pending for final adjudication. Although by the said revalidation letters, the concerned defendants are permitted to complete the construction by 10th June, 2004, but that itself cannot be the reason to vacate the injunction order, which has been continued till the date of hearing of this Notice of Motion, The Division Bench, while passing the said ad interim order, was fully aware of the said submissions, as raised by the defendants' Counsels and the exigency of the situation in view of the prescribed period as reflected in those letters. In view of the above circumstances, no additional and/or substantial reason has been made out by the defendants to permit them to construct the building. Further, pursuant to those two letters of revalidation in question. No additional reasons or circumstances have been made out to vacate the stay or injunction granted by the Division Bench on 29th March, 2004 in Appeal No. 235 of 2004.

17. Senior Counsel Mr. Chinoi, in support of his submissions while resisting the interim reliefs, as prayed by the plaintiffs, relied on the following judgments :

(i) The King v. The General Commissioners Exparte Princess Edmond De Polignac 1917 K.B.D. 486; (ii) S.P. Chengaluaraya Naidu v. Jagannath and Ors. ; (iii); Agarwal Industries Ltd. v. Golden Oil Industries (P.) Ltd. 1993 (4) Bom. C.R. 390; (iv) Ali E Fahd Shobokshi Group Ltd. v. Moneim and Ors. 1982 (2) All E.R. 404.

The crux of the argument of learned Counsel Mr. Chinoi has been that the affidavit in support of exparte application or ad interim relief as prayed is not candid and there are various suppression of facts. It also misleads the Court as to the true facts and this amounts to abuse of the Court's process. Therefore, Court should not even examine the merits of the matter. The Court will not allow the plaintiff to obtain any advantage of an order which was improperly obtained by suppressing various facts and material on record. Therefore, any order obtained on the basis of such affidavits should not be considered and no equitable relief should be granted to such plaintiffs and for that, he relied on; King v. The General Commissioner 1917 K.B.D. 486; S.P. Chengalvaraya Naidu v. Jagannath and Ors. and Ali E Fahad Shobokshi Group Ltd. v. Moneim and Ors. 1982 (2) All E.R. 404, whereby it had been contended that any decree or order if obtained by fraud, it is a nullity and can be questioned in any proceedings. Non disclosure of relevant and material documents with a view to obtain advantage, amounts to fraud. He also relied, for the same proposition, on Agarwal Industries v. Golden Oil Industries 1993 (4) Bom. C.R. 390. This judgment, covers issues as laid down in the above Supreme Court decision, as well as, the King's Bench Division and on merits, on peculiar facts had passed the order. In the present case, the admitted facts and circumstances, as referred above, itself distinguish the facts and circumstances of the cases cited by the learned Counsel for the defendants. At ad interim stage, as observed above, long continuation of interim orders passed by various Courts from time to time against the defendants in respect of the; property in question i.e. "Divya Prabha" and further the admitted stoppage of construction work by the concerned defendants, cannot be said to be any suppression of facts or material or any fraud played upon the Court as; contended by the Counsels for the defendants. Anyhow, at. this ad interim stage, I am not touching the merits and demerits of the rival contentions as pointed out earlier.

18. Another contention raised by the defendants' Counsel in support of their submission has been that the revalidation letters dated 8th/9th 2004, are legal, valid and within the scope and power of the concerned authority and plaintiffs have no right or title to challenge the said letters in view of the fact that the plaintiffs themselves do not have any right on the property in question. These validation letters are within the framework of law and as construction had already commenced within one year from the date of initial development permission, even though stopped later on, a fresh application or fresh development permission is not contemplated, therefore periodical extension from time to time, would keep the development permission alive. The purpose of such validation of development permission to keep such permission alive from time to time, is a long established and consistent policy of renewing and revalidating such development permission, from year to year, under the Bombay Municipal Corporation Act and the concerned Regulations. Therefore, there will be great hardship and loss caused to the concerned defendants if any construction activities are injuncted further as the said validation letters itself provide the period upto 10th June, 2004. Therefore, at this stage, balance of convenience and documents lie in favour of the concerned defendants and/or at least in favour to continue the construction activities further. In support of this, Mr. Kadam appearing on behalf of the defendant Nos. 3 and 4 relied on Sadanand Varde v. State of Maharashtra , and contended that no interim relief, as prayed, be granted to the plaintiffs. The above facts in the present case are totally distinguishable from the facts in Sadanand Varde's case (supra). The proposition of law, as submitted by the defendants' Counsel is not in dispute and/or there cannot be any quarrel with those propositions. However, peculiar admitted circumstances and facts of this case, tilts the balance in favour of the plaintiffs, at least at this ad interim stage and as observed above, in view of the admitted stoppage of the construction activities of Divya Prabha premises in question, by various orders of the Courts, apart from the statements made by the defendants, in view of expiry of the relevant certificates and/or documents at the relevant time. The order passed by the Division Bench of this Court dated 5th April, 2004, whereby injunction order has been granted, inspite of all these arguments and submissions of the defendants, settles the issue, at least for ad interim stage. The submission of the defendants' Counsel based upon and/or in respect of F.S.I, and/or area calculation cannot be gone into at this ad interim stage or at least unless the validity and/or legality of these two revalidation letters is decided either at the final hearing of this Notice of Motion or at the trial of the suit. Those issues require detail deliberation and in view of the above, need not be gone into at this ad interim stage.

19. Mr. Shailesh Shah, learned Counsel appearing on behalf of the defendant Nos. 1 and 2 adopted the arguments made by the other Counsel and contended additionally, that they have prior and pre-existing rights over the plaintiffs' rights, on the property in question and, therefore, no relief as prayed by the plaintiffs can be granted against them. The rights of the plaintiffs and/or of the defendants or their respective title or interest is also a matter of detail deliberation and discussion, which needs further material, evidence and documents on record, apart from the evidence before the Court.

20. The learned Counsel for the Corporation contended that the plaintiffs have claimed in the suit, apart from other reliefs, damages also. Therefore, at the most, plaintiffs are entitled for those damages if they succeed and, therefore, there is no case made out to grant any ad interim relief, as prayed. Mr. Reis, learned Counsel appearing on behalf of the Corporation further submitted that their action and the revalidation letters are valid and within the framework of law and is final till this date and, therefore, in the present suit relief claimed based on the challenge of those letters may not be granted to the plaintiffs. These contentions of the Corporation looses its force in view of the admitted position that the present suit is pending practically since 1968 and one way or the other, pursuant to their initial letters of sanction or Commencement Certificate of the construction of the the building could not be completed by the concerned defendants. However, without going into the merits, even on this issue, in view of the above circumstances and facts, at this ad interim stage, such submissions cannot be accepted.

CONCLUSION :

21. In view of the above reasoning, without going into any of the rival contentions raised by the parties on the merits of the matter, as I am satisfied that plaintiffs have made out a prima facie case in their favour, the balance of convenience and equity also lies in their favour. There will be great injustice and hardship and injury caused to the plaintiff if such construction activity is allowed, which even otherwise, could not be completed by the defendants because of various reasons including orders passed by various Courts from time to time. I am of the view, apart from the settled principle of grant of ad interim relief, as declared and settled from time to time by various Courts, in cases like this where, admittedly, construction activities could not be completed, even though commenced in the year 1966 one way or the other and as various Courts have passed the Injunction orders against the defendants, this itself is sufficient reason, pending the decision of the suit or, at least, pending the decision in the Notice of Motion, that ad-interim injunction or ad interim relief, as prayed, should be continued. The disputed contentions and submissions raised by the respective defendants about various facts that rights, title and/or suit itself is not maintainable and/or is without jurisdiction and there are various suppression of facts and material on record, claims or damages, that itself cannot disentitle the plaintiffs to seek any continuation of interim order and/or grant of any ad interim relief, as prayed. There is no delay or latches in approaching the Court for interim relief, even in changed circumstances.

22. In view of the above, ad interim relief in terms of prayer Clause (b) is granted, except the bracketed portion, which is reproduced below :

(b) That pending the hearing and final disposal of this suit this Hon'ble Court be pleased to issue an order and injunction restraining the Defendant Nos. 1 to 6 and 8 their agents and/or servants and/or officers and/or anyone claiming through or under them from carrying out any construction work or activity in respect of the said structure Divyaprabha or any portion thereof or (from entering the said building or any part thereof);

23. Notice of Motion is made returnable after six weeks.

Parties to act on an ordinary copy of this order, duly authenticated by the Chamber Registrar/Personal Secretary of this Court.

1. Later on, heard Mr. Chinoy, Senior Counsel for the defendant No. 8 and he submitted that so far as Bombay Municipal Corporation's power to renew the respective IOD or Commencement Certificate is concerned, the same need not be obstructed by this order. This submission is accepted. The Bombay Municipal Corporation - defendant No. 7 is free to pass appropriate orders of renewal, if necessary.

2. Senior Counsel Mr. Chinoy and the learned Counsel appearing for defendant Nos. 3 and 4, however, insisted that usual undertaking be directed to be called for from the plaintiff-society as the interim order sought by the plaintiff is at their instance. In view of this, the plaintiffs are directed to file usual undertaking, as per law, within four weeks.

3. Parties to act on an ordinary copy of this order, duly authenticated by the Chamber Registrar of this Court.

4. Certified copy expedited.