Bombay High Court
Shradha Co-Operative Housing ... vs Girnar Residency Co Operative ... on 28 September, 2021
Bench: S.J. Kathawalla, Milind N. Jadhav
Kanchan P Dhuri 1 / 10 APP-ST-15510-2021.odt
Digitally signed
by KANCHAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN PRASHANT
DHURI
PRASHANT Date:
DHURI 2021.09.28
14:38:46
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.15510 OF 2021
WITH
INTERIM APPLICATION (L) NO. 16718 OF 2021
IN
INTERIM APPLICATION NO. 73 OF 2019
IN
NOTICE OF MOTION NO. 1129 OF 2016
IN
SUIT NO. 334 OF 2016
Shradha Co-operative Housing Society Ltd. ]
A Society registered under the provisions of ]
Maharashtra Co-operative Societies Act, 1960 ]
having its office at C.S.125 (part) of Parel Sewree ]
Division, G.D. Ambekar Marg, Ambewadi, ]
Kalachowki, Mumbai - 400 033. ] ... Appellant
(Original Defendant No.1)
Versus
1. Girnar Residency Co-operative Housing ]
Society Ltd. (Proposed) ]
A society proposed to be registered under ]
the provisions of Maharashtra Co-operative ]
Societies Act 1960 and having its office at ]
Girnar Tower, Plot bearing C.S. No.125 (part) ]
and 2/124 of Parel Sewree Division, ]
G.D. Ambekar Marg, Ambewadi, ]
Kalachowki, Mumbai - 400 033. ]
2. Vijayraj Vanechand ]
Age : .. years, occupation : business, ]
Flat No.A/103, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
3. Mahendra Mohanlal Porwal ]
Age : .. years, occupation : business, ]
Flat No.A/602, Girnar Tower, having ]
Kanchan P Dhuri 2 / 10 APP-ST-15510-2021.odt
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
4. Naresh Devichand Jain ]
Age : .. years, occupation : business, ]
Flat No.A/504, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
5. Amamd Tejraj Jain ]
Age : .. years, occupation : business, ]
Flat No.B/304, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
6. Sureshkumar Pukhraj Jain ]
Age : .. years, occupation : business, ]
Flat No.A/404, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
7. Bharat Mangilal Jain ]
Age : .. years, occupation : business, ]
Flat No.A/202, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
8. Nagraj Mohanlal Surana ]
Age : .. years, occupation : business, ]
Flat No.B/1103, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
9. Bharat Mohanlal Kataria ]
Age : .. years, occupation : business, ]
Flat No.B/1503, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
10. Girish Kantilal Jain ]
Age : .. years, occupation : business, ]
Kanchan P Dhuri 3 / 10 APP-ST-15510-2021.odt
Flat No.B/503, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
11. Dhiraj Popatlal Jain ]
Age : .. years, occupation : business, ]
Flat No.B/1302, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
12. Shreepal M. Jain ]
Age : .. years, occupation : business, ]
Flat No.B/1004, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
13. Pravin Bhikamchand Jain ]
Age : .. years, occupation : business, ]
Flat No.B/1101, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
14. Bhupesh Jayantilal Jain ]
Age : .. years, occupation : business, ]
Flat No.B/203, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
15. Lalit M. Bhomavat ]
Age : .. years, occupation : business, ]
Flat No.B/1001, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
16. Mahendra Mumna ]
Age : .. years, occupation : business, ]
Flat No.A/303, Girnar Tower, having ]
address at G.D. Ambekar Marg, ]
Ambewadi, Kalachowki, Mumbai - 400 033. ]
17. M/s. Pramukh Technobuild ]
Kanchan P Dhuri 4 / 10 APP-ST-15510-2021.odt
A partnership firm, registered under the ]
Indian Partnership Act, having its address at ]
1204, Arihant Tower, T.B. Kadam Marg, ]
Opp. Byculla Goods Depot, Mumbai-400 027. ]
18. Sampatraj Jasraj Jain ]
Age : .... years, occupation : business, ]
having its address at 1204, Arihant Tower, ]
T.B. Kadam Marg, Opp.Byculla Goods Depot, ]
Mumbai - 400 027. ]
19. Suresh Kumar Jasraj Jain ]
Age : Not known, Occupation : Business, ]
Partner of M/s. Pramukh Techno Building ]
having his address at 803-A Wing, Deepak ]
Jyoti Tower, Parel Tank Road, Kalachowki, ]
Mumbai - 400 033. ]
20 The Chief Executive Officer (CEO), ]
Slum Rehabilitation Authority (SRA), ]
Administrative Building, 1 Floor,
st
]
Anant Kanekar Marg, Bandra (East), ]
Mumbai - 400 008. ]
21. The Chief Fire Officer, ]
Fire Brigade Officer, Byculla, ]
Mumbai - 400 008. ]
22. Municipal Corporation of Greater Mumbai, ]
A body incorporated under the provisions ]
of Mumbai Municipal Corporation Act, ]
having their office situated at Mahapalika ]
Marg, Opp. CST Station, Mumbai - 400 001. ] ... Respondents
(Sr.Nos.1 to 16 are Original Plaintiffs)
(Sr.Nos.17 to 22 are Org. Defendants)
.........
Mr. Aditya Jadhav instructed by Mr. S.G. Rajput for the Appellant.
Mr. Rohaan Cama alongwith Mr. Kiran Jain, Mr. Ish Jain and Ms. Priyal Jain
instructed by Kiran Jain & Co. for Respondent Nos.1 to 16.
Ms. Kausar Banatwala instructed by Mr. Tushar Goradia for Respondent Nos.17 to 19.
Kanchan P Dhuri 5 / 10 APP-ST-15510-2021.odt
Mr. Jagdish G. Aradwad (Reddy) for Respondent No.20.
Mr. Sagar Patil alongwith Ms. Yamuna Parekh for the MCGM.
Mr. Hemant Parab, Chief Fire Officer, present.
Mr. D.N. Kher, Court Receiver, present.
Mr. Amol Shetgiri from M/s.Shetgiri & Associates, present.
.........
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
ORDER RESERVED ON : AUGUST 31, 2021
ORDER PRONOUNCED ON : SEPTEMBER 28, 2021
ORAL ORDER :
1. The present Appeal seeks to challenge an Order dated 16 th June 2021 passed by
a learned Single Judge of this Court, in Interim Application No. 73 of 2019. The issue
raised in the Appeal is a very short point, although arising in the context of a larger
dispute between the two rival societies, i.e. the original Plaintiff (Respondent No. 1 in
the present Appeal) and the original Defendant No.1, (the Appellant in the present
Appeal).
2. The controversy in brief pertains to whether or not a gate ought to be installed
across a 10-meter gap created in the dividing wall between the Appellant and
Respondent No.1 societies, in the circumstances referred to below.
3. The Appellant is the rehab society comprising of rehabilitation flats of the
erstwhile tenants, constructed on the subject plot. Respondent No.1 in the present
Appeal is the proposed society of the free sale flat purchasers.
Kanchan P Dhuri 6 / 10 APP-ST-15510-2021.odt
4. Without entering into the broader controversy, it is a matter of record that for
approximately two decades there has been a wall between the 2 societies, which wall
has been the subject matter of various proceedings and litigations, as also orders
passed by Division Benches and Single Judges of this Court.
5. The Respondent No.1 Society had filed the captioned Suit in 2016 seeking,
inter alia, protective orders in respect of attempts stated as being made by the
Defendants in the Suit to demolish / remove the dividing wall between the two society
buildings. From time to time, various orders have been passed including orders
appointing a Court Commissioner M/s. Shetgiri and Associates to inspect the subject
plot and to furnish a report on the issue, inter alia, of fire safety, i.e. whether fire
tenders could access the subject plots of the respective societies.
6. M/s Shetgiri and Associates after visiting the site with court officers and with
the officers from the Fire Department, recommended opening a 10-meter gap in the
wall. This was only for the purpose of access and turning of large fire tenders in the
event of an emergency.
7. When the captioned Notice of Motion came up for hearing, by a detailed
judgment pronounced on 18th June 2019, the learned Single Judge came to the
conclusion that the wall itself was not a fire risk and there was no case made out to
demolish the same. However, in the light of the recommendations of the Chief Fire
Kanchan P Dhuri 7 / 10 APP-ST-15510-2021.odt
Officer and M/s. Shetgiri and Associates, it was directed that a 10-meter opening be
made in the wall from the point of view of access for emergency services into the
Appellant's plot, meaning thereby that the fire engines should be able to cross over
and operate from both sides. There is, as on date, no stay of the said judgment. The
Respondent No.1 Society however moved the captioned Interim Application before
the learned Single Judge seeking either a clarification that the 10-meter opening was to
be closed by a collapsible gate, or alternatively to pass a direction in this regard for the
installation of such a collapsible gate.
8. By an Order dated 21st January 2021, the learned Single Judge disposed of the
captioned Interim Application by holding that no clarification was required. However,
being aggrieved by the fact that the alternate relief of directing installation of a
collapsible gate, had not been considered, Respondent No.1 herein filed an Appeal
which came to be disposed of by an Order dated 27 th April 2021 requesting the learned
Single Judge to consider the above alternate relief.
9. By the impugned order dated 16th June 2021, the learned Single Judge allowed
the alternate relief by directing that a suitable gate,which would be conveniently
operable for the purposes of having emergency access, be installed with an appropriate
locking system which could be operated by both sides. M/s. Shetgiri and Associates
was requested to recommend the appropriate locking system and design the gate and
Kanchan P Dhuri 8 / 10 APP-ST-15510-2021.odt
the Chief Fire Officer was directed to render assistance in approving the design of the
gate in such a manner that in the event that the key to the gate was not available, the
lock could be removed by the Fire Brigade personnel.
10. Being aggrieved by this Order, the Appellant has filed the present Appeal.
11. The controversy before us lies in a very narrow compass. For reasons set out at
length in the judgment of the learned Single Judge while disposing of the captioned
Notice of Motion, the learned Single Judge has inter alia held:
(a) The wall itself is not a fire risk and prima facie there was no case for its
demolition;
(b) The various documents and statutory circulars on record clearly show that
what was contemplated was a sub-division of the Appellant and
Respondent No.1 Societies' plots which were intended to be separate from
one another; and
(c) The gap was being created in the wall only for the purpose of access of fire
tenders in the event of an emergency.
12. It is not for us in the present Appeal to go behind that order of the learned
Single Judge dated 18th June, 2019 which is admittedly not under challenge before us
today.
Kanchan P Dhuri 9 / 10 APP-ST-15510-2021.odt
13. When the Appeal was argued, it was sought to be urged by Mr. Khandeparkar
on behalf of the Appellant that in some manner the approval of the CFO was being
mandated for the wall itself. However, on a careful perusal of the impugned order we
find that, that is not the case at all. The CFO has only been requested to assist M/s.
Shetgiri and Associates in ensuring that the gate design is such that the lock may be
broken in the event that a key is unavailable during a fire emergency.
14. Since the limited issue urged in the present matter concerns whether installing
a collapsible gate would constitute a hazard in the event of a fire-related emergency, we
felt it appropriate to personally interview the Chief Fire Officer in chambers without
the presence of parties, in the first instance, to ascertain his views on the matter, a
course of action to which both sides fairly consented. Accordingly on the next date at
a hearing in Chambers, the Chief Fire Officer attended and he communicated to us
that there was no difficulty if a collapsible gate was put up across the 10-meter
opening; his only recommendation was that the locking system be kept as one which
could easily be broken in the event of a fire emergency. He recommended fixing a
"Navtal" lock on the said gate.
15. We have ascertained from M/s. Shetgiri and Associates the status of the gate
design, and Mr. Amol Shetgiri has informed the Court and the CFO, and also shown
to us, the design of the proposed gate. The CFO had no objection to the same, subject
Kanchan P Dhuri 10 / 10 APP-ST-15510-2021.odt
to the rider of requiring the locking system to be as above.
16. In the course of the hearing held in Chambers, no further submissions were
advanced by the Appellant, and accordingly as this issue stands resolved, we pass the
following order:-
(i) The Appeal stands disposed of confirming the order of the learned Single
Judge with the rider that the gate to be installed shall be locked with a "Navtal"
lock and a set of keys shall be furnished to the Appellant Society.
(ii) As directed inter alia by the order of the Division Bench on 27 th April 2021, the
opening in the wall, i.e. the gate, shall be opened and accessed by the Appellant
only to enable fire engines or other emergency vehicles to gain access during
extreme emergency, and for no other purpose.
(iii) At the request of Respondent No.1, Respondent No.1 is at liberty to seek
appropriate information from M/s. Shetgiri and Associates as to the cost of the
gate and the amount to be deposited which sum shall be deposited within one
week from M/s. Shetgiri and Associates furnishing the final quotation to the
Court Receiver.
(iv) There shall be no order as to costs.
(v) The above Interim Application (L) No. 16718 of 2021 also stands disposed off.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
