Bombay High Court

Shree Vardhaman Sthanakvasi Jain ... vs 4 M/S. Aswatha Developers on 20 December, 2013

Bench: Anoop V. Mohta

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dgm

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER (ST) NO.34248 OF 2013
WITH
CAAST/34249/2013

Shree Vardhaman Sthanakvasi Jain Shravak
Sangh - Dadar, by its Trustees .... Appellants

(original Plaintiffs)

1 The Municipal Corporation of Greater

Mumbai

2 The Assistant Municipal Commissioner,
"D" North Ward,, Dadar, (West),Mumbai

3 Dadar Saiprasad Cooperative Housing

Society

4 M/s. Aswatha Developers .... Respondents

(original Deft Nos. 1 to 3
and orig. intervener.)

Mr. Jai Chinai, Senior Advocate with Mr. Astha, Mr. Y. M. Chaudhari
i/by M Reena Salunkhe and Mr. Chhedda for the Appellant /
Applicants.

Ms. Yamuna Parekh for Respondent 1 & 2/Corporation.

Mr. Iqbal Chagla, Senior Advocate with Mr. S. S. Pakale, Senior
Advocate with Mr. Shishir Joshi i/by Swapna Rupwate for Respondent
No.3.

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Mr. Aspi Chinoy, Senior Advocate, Mr. Pravin Samdhani, Senior
Advocate with Mr. Aniruddha Joshi,Mr. A. Gokhale, Mr. Satyen Vora,

Ms. Pratiti Naphade and Mr. Atul Kshatriya, Advocates i/by M/s.
Markand Gandhi & Co. for Respondent no.4.

CORAM: ANOOP V. MOHTA, J.

DATE : December 20, 2013

ORAL JUDGMENT:

Heard finally at the stage of admission in view of urgency

expressed by the parties.

2 The Appellants/original Plaintiffs have challenged

impugned order dated 30 November 2013 passed by the learned

judge, City Civil Court, Greater Mumbai. The operative part of the

order is as under :

"1 Notice of Motion No. 1396/2010 is hereby rejected.

2 Notice of Motion No. 3339/2013 is hereby allowed.

3 No order as to costs.

4 Notice of Motion Nos. 1396/2010 and 3339/2013
stand disposed off accordingly."

3 Notice of Motion No.1396/2010 is filed by the

Appellants/original Plaintiffs (First Motion). Notice of Motion

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No.3339/2013 is filed by the Developer/applicant (Second Motion).

4 The relevant prayers in Second Motion was as under :

"(a) this Hon'ble Court be pleased to vacate the
order dated 16th June 2010 read with orders
dated 19th October 2010."

5 The learned Judge on 16.06.2010 passed the order of

status-quo. The relevant part was as under :

"At this prima facie stage it is clear that entire structure
of the plaintiff Trust has been demolished by the
corporation. Even it is submitted at bar by Mr. Gandhy

that material of construction after demolition has been
almost removed by the corporation.

It means as on today no structure is in existence.

However plaintiff prayed for not to create third party
interest or raising of compound wall by the MMC.

The advocate for deft has submitted she had no
instruction from the office of MMC in detail.

Considering the fact of demolition as well as order of
the Hon'ble High Court passed in Writ Petition
No.1731/09 so also the judgments produced by
plaintiff it is necessary to keep the premises as it is i.e.

parties to the suit to maintain status quo of the suit
property till next date.

Therefore I proceed to pass following order :

ORDER

Both the parties to the suit to maintain status-quo in respect of the suit premises till next date.

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Deft is directed to file reply.

Plff is directed to communicate the order to the concerned Ward Officer.

NM to be registered.

Adjd to 3rd July, 2010 for NM reply."

6 By order dated 19.10.2010 the same order continued till

further orders. The same has been in force till the passing of the

impugned order.

7 The Second Motion i.e. 3339/13 was taken out on

6.9.2013 by the developer/applicant to vacate the above status-quo

order. Chamber Summons No.2006/2013 to implead as party as filed

on the same date is still pending.

8 The Respondent/Corporation whose action challenged in

the Suit by the Plaintiffs, never filed any application to vacate the

status-quo so granted.

9 The Society was impleaded lateron on 20.4.2013 also

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never moved such application/Motion.

10 On 16.09.2013, the learned Judge rejected/not granted

relief as sought by the developer in Second Motion being 3339/13.

The same was challenged. On 10.10.2013 this Court passed the order

and directed to expedite the two Motions, to be disposed of within

eight weeks. The necessary observations are as under :

"3 The Suit filed by Respondent-original Plaintiff is

still pending along with Notice of Motion/Chamber Summons so taken out from time to time, by the parties and have to be dealt with in accordance with law

together. Ad-interim exparte relief obtained by the Plaintiff dated 16.6.2013/2010 extended by order dated 19.10.2010 till further order. That has been in force till this date.

5 .......However, it is made clear that the

submissions itself so made by the parties and if it affects the project in question, it is desirable that the hearing of Notice of Motion No.3339 of 2013 itself be

expedited. However, for the same reason it is also desirable that the Notice of Motion which is pending since long in which interim orders are passed also required to be decided early. However, certainly after giving an opportunity to all the parties to file necessary

reply and/or document in support of their case.

7 Both Notice of Motions are expedited and to be heard and disposed of as early as possible, preferably within eight weeks, by giving opportunity to all concerned."

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11 The praecipe was disposed of on 22.11.2013 as moved for

a clarification.

12 Admittedly on 10.10.2013 apart from two Motions, other

proceedings including chamber summons taken out by the respective

parties, were pending.

13 The Plaintiffs in First Motion was allowed on 16.02.2013,

where a prayer, apart from the pleading is added for restoration of the

possession of the suit property.

14 Second Chamber Summons No.706/13 for amendment for

bringing more material/averments on record, including addition of

parties, filed on 25.03.2013. The Respondent/Corporation

filed/affidavit in reply to the Plaintiffs' First Motion on 25.09.2012.

They filed second affidavit on 28.10.2013, in a way supporting a case

to vacate the status-quo order granted.

15 The Society filed their affidavit on 23.10.2013. Plaintiffs

filed reply to Second Motion taken out by a developer on 24.10.2013

again by giving details referring to the pending Writ Petition

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No.1731/2009.

16 The Corporation filed a second affidavit on 28.10.2013.

17 The Appellants/plaintiffs filed rejoinder to all the affidavits

filed by the contesting Defendants on 16.11.2013, thereby again re-

iterated and provided the details of all the events till the date of filing

of the rejoinder.

18 The Appellants/plaintiffs on 22.11.2013 even after filing

of the rejoinder affidavit/reply to the Motions, including the Motion

taken out by the developer, submitted to the trial Judge that along

with Motions, all the Chamber Summonses and Notice of Motions also

be heard referring to order dated 10.10.2013 passed by this Court as

quoted above.

19 The learned Judge, however, did not consider to pass any

order on the chamber summons, but proceeded to hear the Motions as

directed.

20 The learned Judge, however, referred Chamber Summons

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No. 857/2013 filed by the applicants/developer in paragraphs 16 and

19 and also the documents, but no reference to the other chamber

summons so filed by the appellant/plaintiffs, including of amendment

so sought.

21 Strikingly, the learned Judge has allowed Notice of Motion

No.3339/2013 filed by the developer, whose chamber summons itself

is pending to implead as a party. The learned Judge, though recorded

the pendency of the said chamber summons, but being affected person

in view of the interim order passed by this Court, heard the developer

also. As noted, no other contesting party filed such Motion except the

developer, who, on the date of disposal of the Motion, was not even

joined and/or impleaded as a party. No reason is provided why this

chamber summons were not disposed of and/or decided, except by

observing that this Court on 10.10.2013 directed to dispose of these

two Motions.

22 There is no justification whatsoever on record with regard

to the missing steps which ought to have been taken by the other

contesting Respondents when they were party since inception of the

proceedings, to vacate the status-quo order so granted.

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23 After going through the order so passed by the learned

judge, it is clear that as no opportunity given to the

Appellants/plaintiffs by not considering the chamber summons for

amendment and further by not even considering to hear and/or accept

the contentions revolving around the events till the date of the filing

of affidavit in reply as well as in rejoinder dated 16.11.2013. If this

Court has directed to dispose of the two Motions by giving

opportunity to all the parties, this means and include permitting them

to agitate their submissions, based upon the affidavit, reply and

rejoinder filed on record, apart from supporting documents. The

averments so made in the reply to the Notice of Motion taken out by

the developer and so also the rejoinder to the affidavit, reply filed by

other contesting party, the same events as well as the material so read

and referred are part of Chamber Summons No.706/2013 as the same

was filed on 16.02.2013. The situation is that though the

Appellants/plaintiffs are permitted to file rejoinder which covers the

case/events upto 16.11.2013, the learned Judge even not considered

to grant the chamber summons which is admitted pending for second

amendment. In the result, the learned Judge heard the parties on the

basis of Motions so filed principally by the developer who was not

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joined as party to the proceedings.

24 The Appellant/plaintiff's Notice of Motion was pending

since 2010. The developer filed Notice of Motion on 6.9.2013 as

even on that date the orders of status-quo were in force. When this

Court says and direct the trial judge to consider the material by giving

full opportunity and basically when even on those dates and chamber

summons and Motions were pending, not to consider those chamber

summons, in my view, was never contemplated and even cannot be

stated to be the procedure when Court directed that both the Motions

be heard and disposed of by giving opportunity to all the parties. The

averments/submissions so made, based upon the replies filed by the

Appellants/plaintiffs referring to the averments including of pending

Writ Petition No.1731/2009 and subsequent events, if is a part of

rejoinder/reply, the same at least ought to have been considered

before passing the impugned order. The amendment, if not allowed,

the submission of other side and even as observed by the learned

Judge, not granted hearing and/or opportunity to the

Appellants/plaintiffs to put his case, on the basis of

averments/documents so placed on record, for the specific pleading,

revolving around the averments so made and/or any reply/rejoinder,

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this in my view, definitely breaches the basic principles of fair, equal

opportunity, apart from natural justice specifically when the learned

Judge by not giving opportunity as contemplated, proceeded to hear

even at this prima facie stage that the Appellant/plaintiffs have no

title and they are not in possession over the suit disputed structure

and thereby further observed that there is no question of causing any

irreparable loss or injury to the Plaintiffs as the structures were

already demolished. The amendment already granted whereby the

Plaintiffs have asked even for restoration of the plot in question, by

overlooking the averments made in reply as well as rejoinder,

revolving around various challenges including the scheme/allotment

of plot and the demolition of the structure at the relevant time in the

year 2010.

25 The submissions are made by the learned Senior counsel

appearing for the contesting Respondents that the

Appellants/Plaintiffs have committed fraud and/or obtained the order

of status-quo by suppressing various material documents and

necessary events, including of valid/possession of portion of the

property in question. The contesting Respondents, at the relevant

time, never agitated this issue at the earliest point of time. Even the

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developer's case is that they they were not aware of grant of status-

quo order passed by this Court in the year 2010. All the concerned

parties were fully aware of the various litigations, writ petition as well

as special leave petitions filed by the Appellants and other parties

revolving around, the issues including of dis-possession and/or

restoration of the plot in question, apart from the development of the

property by the developer as contemplated under Regulation 33 of the

Development Control Regulations for Greater Mumbai, 1991.

26 The relevancy of above observation is that while passing

the interim status-quo order, as recorded above, the learned Judge

specifically noted about the demolition of the structure by the

Corporation on 16.6.2010 .... and also noted the order passed in Writ

Petition No.1731/2009, which is still pending in the High Court. The

learned Judge, therefore, on the date when passed such order, taking

note of these factual background including the pendency of the writ

petition, the issue of fraud/misrepresentation and the

relevant/subsequent events, though placed on record by affidavit as

well as rejoinder, the learned Judge has not considered those facts and

passed the order by overlooking the averments/chamber summons for

amendment so filed, though the reply as well as rejoinder filed by the

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Appellants/plaintiffs contends and provide the same and/or

substantial material including the averments so made in Writ Petitioin

NO.1731/2009. The opportunity, therefore, ought to have been given

when the contesting parties, after so many years, wants the Courts to

vacate the order so passed in the year 2010.

27 When we come to Writ Petition No.1731/2009 in question,

both the learned senior counsel appearing for the contesting parties,

strongly relied upon the order passed in favour of the developer

against the Appellants with regard to the development of the property

in question. The writ petition was filed prior in point of time. No

interim relief granted in favour of the Appellants, therefore, Special

Leave Petition was filed. The Division Bench of this Court, in view of

order of remand, re-considered the aspect only of grant of interim

protection/relief. The Division Bench on 26.6.2012, based upon the

Supreme Court judgment in Girish Vyas's case, whereby now it is

settled that Development Plan (DP) would prevail over Town Planning

Scheme (TPS), permitted the development of the property, including

the suit portion. The issue, therefore, so agitated by; the

Appellants/plaintiffs apart from other, the issue of DP versus TPS, was

pending since long basically between the parties and for the property

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in question. Even prior to 14.10.2011 three Special Leave Petitions

were also disposed of by Supreme Court by remanding the matter

back to the High Court. Therefore, even the society/developer were

fully aware of the contesting issues so raised. The fact of pendency of

the suit in question since 2010, including the challenge so raised by

the Plaintiffs, therefore, is not foreign to any one.

28 The Appellants then preferred Special Leave Petition

against order dated 26.06.2012, thereby challenge was again raised to

the order of permitting to develop the property in question. The SLP

was filed in July 2012. As noted, all other averments so recorded/file

thereafter including the Notice of Motion by the developer. The said

SLP permitted to be withdrawn of 26.11.2013. Even after the first

order passed by this Court on 10.10.2013 or even an application filed

by the Appellants were request was made to hear all the pending

chamber summons and the Motions.

29 It is relevant to note that the Hon'ble Supreme Court while

permitting the Appellants to withdraw the Special Leave Petitions,

granted liberty to apply for amendment so sought in pending Writ

Petition No.1731/2009 of Appellants. The Appellants, though not

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moved, application for amendment in the writ petition, the fact of

permitting the Appellants, the amendment to the pleading and further

observed to consider the same in accordance with law, just cannot be

overlooked at this stage of the proceedings.

30 The effect of IOD granted on 17.11.1994, the undertaking

given by the Appellants and based upon which developed the part of

Plot No.265 by taking necessary permission, which was subject to

various conditions, including handing over the remaining portion

including the suit portion to the Corporation, the withdrawal of such

undertaking on a foundation of mistake of facts and law, the abrupt

possession so taken by the Corporation on 14.10.2010 and handing

over of the plot in question to developer, the effect of interim order

passed by the High Court in Writ Petition, the status-quo order passed

by the trial Court on 16.10.2010 and continued on 19.10.2010 and

remained intact till this date and the pending of writ petition and the

permission so granted by the Supreme Court to amend the pleading,

this in my view, just cannot be adjudicated without giving full

opportunity to all the parties even though at this prima facie stage.

This, in no way, means and to read that the Court has passed and/or

accepted the contention so raised by the Appellants/plaintiffs. This is

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only for giving full opportunity to all the parties as the question is not

of demolition of the structure owned by the Appellants at the relevant

time, but it is also question of title and ownership of the

Appellants/Plaintiffs.

31 The third party right so created in view of the permitted

development to the Appellants/plaintiffs by the Society and the right

so created is, therefore, required to be considered at the earliest.

32 The submission is that the huge amount/expenditure

incurred by the developer apart from the basic payment so made, as

recorded above to all the tenants, who vacated their respective

premises, are already provided with the compensation/rent in lieu of

accommodation. The process is on since 2008. Till this date about

Rs. 17 crores and odd has already spent by the developer. The Court,

normally, could have taken this aspect as a relevant fact for granting

and/or vacating the injunction/status-quo order so obtained, but the

fact that the status-quo in question has been force since 16.10.2010

and the Motions so taken out only by the developer now in 2013,

whatsoever may be the reason, is a factor which, in my view, should

not affect and/or takes away the rights of Appellants/Plaintiffs to

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contest the proceedings including the action of

Respondent/Corporation so stated above as prayer is also made for

restoration of plot in question. Therefore, without observing further

on merits including preliminary points about the maintainability of the

Suit so discussed by the learned Judge, that there was no such prayer

and/or objection specifically raised at appropriate time, before

proceeding with the matter, the observation/finding so given on

merits, in my view, is without giving opportunity though asked for and

as prayed for, therefore, I am inclined to set aside the order. However,

with further direction that all the chamber summonses or other

proceedings, if any, pending, be heard and disposed of at the earliest

within four weeks. Both the Notice of Motions be heard thereafter by

giving opportunity to all the concerned parties.

33 Therefore, the observations made by this Court, while

disposing of the present Appeal are for deciding the present Appeal

only. All the points are kept open.





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    34            Resultantly, the following order :

                                        O R D E R 




                                                                                  
                                                          
         (i) Impugned order is quashed and set aside.

(ii)All chamber summons be heard and disposed of within four weeks from today.

(iii)Both the Motions being Notice of Motion Nos. 1396/2010 and 3339/2013 are restored for rehearing. To be disposed of within four weeks, thereafter.

(iv)The learned judge to pass appropriate order in accordance with

law uninfluenced by the present Order/observation in this Order.

(v)The status-quo order which has been in force since 16.10.2010 and as continued from time to time and even by this Court to continue till the disposal of Notice of Motions.

(vi)Hearing of Suit is expedited.

(vii)The Appeal is accordingly allowed.

(viii)There shall be no order as to costs.

(ix)In view of disposal of Appeal, Civil Application (ST)No.34249/2013 is also disposed of accordingly.

(ANOOP V. MOHTA, J.)