Bombay Pharamaceuticals Works ... vs State Of Maharashtra Through ...
2022 Latest Caselaw 12820 Bom

                   KVM

                                                   1
                                                                    WPL 21996 OF 2022.doc


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

KANCHAN Digitally
        by KANCHAN
                  signed      ORDINARY ORIGINAL CIVIL JURISDICTION
VINOD   VINOD   MAYEKAR

MAYEKAR Date: 2022.12.09
        14:29:56 +0530          WRIT PETITION (L) NO. 21996 OF 2022
                                          ALONGWITH
                             INTERIM APPLICATION (L) NO. 34250 OF 2022

                   M/s. Bombay Pharmaceuticals Works        )
                   Pvt. Ltd.                                )
                   Through its Director Nitin Asaria Vador, )
                   Having registered office at              )
                   96, Mathura Bhavan, Dadasaheb Phalke )
                   Road, Dadar (E), Mumbai - 400 014        )   ..... Petitioner

                           VERSUS

                   1. State of Maharashtra              )
                   Through its Urban Development Department)
                   having its office at Mantralaya,     )
                   Mumbai - 400 032                     )

                   2. Brihanmumbai Municipal Corporation,)
                   Through its Commissioner having office at)
                   Mahapalika Bhavan, Mahapalika Marg, )
                   Fort, Mumbai - 400 001                  )

                   3. Dy.Chief Engineer (Building Proposal))
                   Having its office at Dy.Ch. Eng.(BP),   )
                   Near Doasti Apartment, Barkatali Darga Road,)
                   Wadala, Mumbai                          )

                   4. Dy. Municipal Commissioner (II),      )
                   F/South Ward Office, Dr.B.A.Road,        )
                   Parel, Mumbai - 400 012                  )

                   5. Asst. Commissioner 'F/S' Ward,        )
                   F/South Ward Office, Dr.B.A.Road,        )
                   Parel, Mumbai - 400 012                  )

                   6. Executive Engineer MHADA,             )
 KVM

                                 2
                                                   WPL 21996 OF 2022.doc


Office of the Executive Engineer,          )
"G/N" Ward, M.B. R&R. Board,               )
Opp. 42nd M.M. Court, Shinde Wadi,         )
Dadar, Mumbai - 400 051                    )

7. Mathura Bhuvan Co.op. Hsg. Society )
(Proposed),                           )
"Mathura Bhuvan" situated at          )
96, 96-B, 96-F, 96-G 96-H,            )
Dadasaheb Phalke Road,                )
Dadar (East), Mumbai - 400 014        )

8. M/s. U.H.Pandaya & Associates Land )
Developers                            )
Registered Office at                  )
P.D.Singh Compound, Walbhat Road 21, )
Cama Industrial Estate,               )
Goregaon (East), Bombay - 400 063     )        ..... Respondents

Dr.Birendra Saraf, Senior Advocate, a/w. Mr.Prathamesh Bhargude,
Mr.Gurubala Birajdar for the Petitioner.

Mr.Abhay Patki, Additional Government Pleader for the State -
Respondent no.1.

Ms.Pooja Yadav, i/b. Mr.Sunil Sonawane for the Respondent nos. 2 to
5.

Mr. S.S.Redekar for the Respondent no.7.

Mr.Jeetendra Ranawat, i/b. Mr.Waquar Ahmad for the Respondent
no.8.

                       CORAM: R. D. DHANUKA AND
                              KAMAL KHATA, JJ.

RESERVED ON : 15th NOVEMBER, 2022

PRONOUNCED ON : 9th DECEMBER, 2022 KVM

WPL 21996 OF 2022.doc

JUDGMENT (Per R.D.Dhanuka, J.):-

Rule. Learned Additional Government Pleader waives service of

the respondent no.1. Ms.Pooja Yadav, learned counsel waives service

for the respondent nos. 2 to 5. Mr.Redekar, learned counsel waives

service for the respondent no.7. Mr.Ranawat, learned counsel waives

service for the respondent no.8. Rule is made returnable forthwith.

2. By this petition filed under Article 226 of the Constitution of

India, the petitioner seeks writ of mandamus and seeks directions and

injunction against the respondent nos. 1 to 5 from granting any

permissions, certificates etc. in respect of the constructions going in the

compound known as 'Mathura Bhuvan' being plot nos. 96, 96-B, 96-F,

96-G and 96-H corresponding C.S.No. 86, 1/86 of Dadar Naigaon

Division at Dadasaheb Phalke Road, Dadar (East), Mumbai - 400 014,

till execution and registration of agreement for permanent alternate

accommodation with the petitioner in respect of the writ premises, in

lieu of existing premises and free of cost as per the condition of I.O.D./

C.C. dated 8th July, 1992.

3. Interim application is filed inter alia praying for an injunction KVM

WPL 21996 OF 2022.doc

restraining the respondent no.8 from creating any third party rights and

handover the physical possession of the writ premises i.e. first floor 2

units and entire 2 and 3 floor in new building as per plan approved by

the respondent nos. 2 to 5 to any third party, which is reserved for the

petitioner and from parting with possession of the writ premises to

third party.

4. Some of the relevant facts for the purpose of deciding this

petition are as under :-

5. There are 70 occupants of the building Mathura Bhuvan who

proposed to form a society under the name of Mathura Bhuvan Co-

operative Housing Society (Proposed). Name of the petitioner is

included in the list of the said proposed society. It is the case of the

petitioner that on 5th March, 2021, since the writ property was

dilapidated, the respondent no.7 society allotted development rights on

behalf of all the members to the respondent no.8 by entering into an

Agreement for Development on 18th June, 2010.

6. On 7th March, 2021, the respondent no.8 submitted a KVM

WPL 21996 OF 2022.doc

redevelopment proposal to MHADA. The MHADA directed the

respondent no.8 to rehabilitate the existing members including the

petitioner in the redevelopment of the project submitted under

regulation 33(5) of the Development Control Regulation, 1991 (for

short DCR 1991). The respondent no.3 thereafter granted further

approval to the plans submitted for the proposed Wings 'C' and 'D',

which were to be constructed for rehabilitation purpose.

7. It is the case of the petitioner that it approached the respondent

nos. 2 to 5 with representations dated 14 th February, 2022 and 6th April,

2022 requesting to get compliance of the condition of IOD from

respondent no.8 or issue directions for execution and registration of an

agreement with the petitioner. The petitioner also made a

representation through its advocate on 28th January, 2022 and 14th

February, 2022 to the respondent no.7 and requested to look into the

matter and do the needful.

8. The respondent no.7 by its letter dated 11 th March, 2022 gave

vague answer that the society had issued Notice dated 10th October,

2018 through their advocates thereby terminating the agreement dated KVM

WPL 21996 OF 2022.doc

8th August, 1991 and Confirmation Deed dated 2nd July, 2010 which

were executed in favour of the respondent no.8.

9. It is the case of the petitioner that though the petitioner through

its advocates' letter dated 14th February, 2022 called upon the

respondent no.8 for the registration of the said Agreement for Alternate

Accommodation, the respondent no.8 deliberately avoided to enter into

any such agreement. The petitioner accordingly issued a notice dated

30th March, 2022 through its advocate to the respondent no.8 and to

respondent nos. 2 and 3 by letter dated 6th April, 2022.

10. The respondent no.8 replied by its advocate's letter dated 5 th

April, 2022 and pointed out a typographical error in the notice issued

by the petitioner's advocate and stated that as per the record of their

client, there was no tenant in their premises by the name of 'Bombay

Pharmaceuticals Pvt. Ltd.' but there was one company called 'Bombay

Pharmaceuticals Works Pvt. Ltd.'

11. The petitioner applied for interim relief before the Vacation

Court on 2nd November, 2022. Learned counsel for the respondent no.8 KVM

WPL 21996 OF 2022.doc

made a statement that till the next date, the respondent no.8 shall not

create any third party rights on 2nd and 3rd floor of the subject premises.

The matter was thereafter adjourned to 14th November, 2022.

12. Dr.Birendra Saraf, learned senior counsel for the petitioner

invited our attention to some of the documents annexed to the petition

and submitted that at one stage, the petitioner company was in

liquidation but is now revived. It is submitted that the respondent no.8

had submitted redevelopment proposal for four buildings i.e. buildings

A to D on the basis of the demolition of the existing premises. Out of

the four buildings, two buildings i.e. C and D are proposed on the land

underneath to the existing premises for rehabilitation of the respondent

no.7. The MHADA had granted necessary NOC on 27 th April, 1992

along with list of eligible members in the redevelopment project and

directed to make the arrangements of all the occupiers in the new

constructed building before obtaining occupation certificate from the

Corporation.

13. Learned senior counsel invited our attention to the IOD dated

23rd November, 1996 and submitted that it was clearly provided that KVM

WPL 21996 OF 2022.doc

respondent no.8 shall not submit application to get commencement

certificate in respect of the further construction on the existing

premises until submission of all agreements for permanent alternate

accommodation with all the members along with copy of approved

plan showing a provision for accommodation of the said members in

accordance with the provisions of DCR, 1991. He submitted that the

respondent no.8 was bound to submit registered agreement for

Permanent Alternate Accommodation with all the members to get full

completion certificate in respect of sale area.

14. It is submitted by the learned senior counsel that the respondent

no.8 has not even paid the rent against the possession of the existing

area of the petitioner delivered to the respondent no.8. The respondent

no.6 has already granted No Objection Certificate to occupy Wings 'C'

and 'D' of newly constructed building by existing 70%

tenants/occupants on the other terms and conditions mentioned therein.

15. It is submitted by the learned senior counsel that the respondent

no.6 has extended the said NOC dated 27 th April, 1992 from time to

time on the request of the respondent no.7. It is submitted that the KVM

WPL 21996 OF 2022.doc

respondent no.8 has committed violation of the IOD conditions. The

respondent no.8 has not entered into any permanent alternate

accommodation agreement with the petitioner in respect of the

tenements, the respondent no.8 is liable to handover to the petitioner.

He submitted that the name of the petitioner is already included in the

certified list of tenants in his various documents.

16. It is the case of the petitioner that the respondent no.6 has

informed the respondent no.5 that Full Occupation Certificate shall not

be granted to the NOC holder under any circumstances, to insure all the

occupants of old building are rehoused.

17. Learned senior counsel for the petitioner invited our attention to

the revised development plan and submitted that at serial no.6, the area

of the structure sanctioned against the name of the petitioner was 87.78

sq. mtrs. which is the built up area demarcated for the petitioner. He

submitted that in the notice given to the respondent no.8 by the

petitioner, the name of the petitioner was inadvertently mentioned

which was corrected subsequently.

KVM

WPL 21996 OF 2022.doc

18. Learned senior counsel for the petitioner submits that since the

respondent no.8 has not entered into any permanent alternate

accommodation agreement with the petitioner as per the sanctioned

plan before the area was sanctioned in the second development plan

earmarked for the petitioner, the respondent no.8 cannot apply for

commencement certificate or any other permission in accordance with

the previous IOD.

19. Learned counsel for the respondent no.8 on the other hand

submits that the writ petition is not maintainable as there are disputed

questions of facts. He submitted that the petitioner company belongs to

Mr.Suresh Bhagat. The respondent no.8 had spent substantial amount

on revival of the petitioner company. He invited our attention to the

prayers in the interim application and submitted that since the prayers

in the interim application are not prayed in the writ petition, the interim

application is not maintainable on this ground itself.

20. Learned counsel for the respondent no.8 invited our attention to

the order dated 12th June, 2019 passed by a Division Bench of this KVM

WPL 21996 OF 2022.doc

Court and particular paragraphs 5 and 6 and also an order dated 8 th

October, 2003 in the interim application and submitted that in

accordance with the said two orders passed, the respondent no.8 is not

liable to hand over possession of more than 6500 sq. ft. area to the

petitioner. He relied upon the MOU entered into between his client and

a third party.

21. It is submitted that in any event since the respondent no.8 has

received certain claims for the property demanded by the petitioner, the

respondent no.8 is not liable to provide any property to the petitioner. If

this Court comes to the conclusion that permanent alternate

accommodation agreement has to be executed by the respondent no.8

in favour of the petitioner for the area sanctioned in the second building

plan, this Court may clarify in the order that it would be subjected to

the claims of the third party and the respondent no.8 will not be

responsible.

22. Insofar as the submission of the learned counsel for the

respondent no.8 that the interim application made by the petitioner is KVM

WPL 21996 OF 2022.doc

not maintainable on the ground that those prayers are not part of the

writ petition is concerned, a perusal of the prayers in the writ petition

indicates that the petitioner has prayed for a writ of mandamus against

the respondent nos.1 to 5 from granting any permissions, certificates

etc. in respect of the constructions going in the compound known as

"Mathura Bhuvan" till execution and registration of the agreement for

permanent alternate accommodation with the petitioner in respect of

the writ premises, in lieu of the existing premises free of costs as per

the condition of IOD / CC dated 8th July, 1992. The petitioner has also

prayed for an order and injunction against the respondent nos.1 to 5.

23. In prayer clause (c) of the petition, the petitioner has prayed for

an injunction against the respondent no.8 from carrying out any further

construction in the compound known as "Mathura Bhuvan" till

execution and registration of the alternate permanent accommodation

with the petitioner in lieu of the existing premises.

24. In the interim application, the petitioner has prayed for an

injunction against the respondent no.8 from creating any third party KVM

WPL 21996 OF 2022.doc

rights and to hand over physical possession of the writ premises i.e. 1 st

floor, 2 units and entire 2 and 3 floor in the new building as per the

plan approved by the respondent nos.2 to 5. Since both the parties have

argued the writ petition itself finally, we are not required to go into the

prayers of the interim application. Be that as it may, the prayers in the

interim application are consequential prayers to the prayers for

injunction sought already in the writ petition against the respondent

no.8.

25. We are not inclined to accept the submission made by the learned

counsel for the respondent no.8 that his client has interest in the

petitioner company. Learned counsel for the respondent no.8 could not

demonstrate any such alleged right, title or interest of any nature

whatsoever in the petitioner company. The respondent no.8 has been

appointed as the developer for carrying out redevelopment of the writ

property along with larger area. The petitioner company was revived

pursuant to the order of the Company Court and has rightly filed this

writ petition for various reliefs.

KVM

WPL 21996 OF 2022.doc

26. Learned counsel for the respondent no.8 could not dispute that

the name of the petitioner company was mentioned in the certified lists

of the tenants and also in various plans sanctioned by the Municipal

Corporation submitted by the respondent no.8 from time to time. The

area claimed by the petitioner in lieu of the existing tenements in

possession of the petitioner is also earmarked from time to time. The

respondent no.8 thus cannot be allowed now to contend that the

respondent no.8 at most is liable to enter into an agreement for

Permanent Alternate Accommodation Agreement only for 6500 sq. ft.

area and not more than the said area. In our view, the submission made

by the respondent no.8 is contrary to the sanctioned plan obtained by

the respondent no.8 itself.

27. Insofar as the submission of the respondent no.8 that there are

claims received from his client on the property claimed by the

petitioner and thus if this Court directs the respondent no.8 to enter into

Permanent Alternate Accommodation Agreement with the petitioner in

respect of the sanctioned area and earmarked for the petitioner is

concerned, the respondent no.8 could not produce any such claim

received by the respondent no.8 in respect of property earmarked for KVM

WPL 21996 OF 2022.doc

the petitioner before this Court. Be that as it may, the respondent no.8

may clarify the claim received by it, if any, in the Permanent Alternate

Accommodation Agreement. Learned senior counsel for the petitioner

has no objection if any such claims are referred in the said agreement.

If any third party claims are received from the third party, the

petitioner would deal with the said claims on its own merits and in

accordance with law.

28. Learned counsel for the respondent no.8 could not dispute that

under condition 8(x), the respondent no.1 was allowed to apply for full

commencement certificate only after execution of the registered

Agreement for Permanent Alternate Accommodation in respect of the

ongoing construction of sale area. The petitioner vacated their

respective structures. The Municipal Corporation however, continued

to issue commencement certificate without the respondent no.8 having

complied with the said condition of IOD. In our view, the said

condition is binding on the respondent no.8. The Municipal

Corporation could not have issued full completion certificate till

condition no.(x) would have been complied with by the respondent KVM

WPL 21996 OF 2022.doc

no.8.

29. This Court has already recorded the statement made on 2 nd

November, 2022 in the Interim Application (Lodging) No.34250 of

2022 that the respondent no.8 shall not create any third party rights

and hand over physical possession of the subject premises. The

premises on second and third floor however are not the subject matter

of the Agreement to be entered into by the respondent no.8 in favour of

the petitioner.

30. In our view, the petitioner has thus made out a case for grant of

reliefs in terms of prayer clauses (a) and (b) of the petition. The

Permanent Alternate Accommodation Agreement shall be executed by

the respondent no.8 in favour of the petitioner in terms of prayer

clause (a) in the Interim Application (L) No.34250 of 2022 in respect

of the writ property within four weeks from today, duly registered,

without fail. It is made clear that if there are any claims that would be

received by the respondent no.8 in respect of writ property, earmarked

in sanctioned plans in file No.CHE/CITY/1700/F/S/337 (New) dated KVM

WPL 21996 OF 2022.doc

12th December, 2018 and Proforma B dated 17th January, 2018, such

claims are to be communicated to the petitioner by the respondent no.8.

The adjudication of such claim, if any, would be on its own merits.

31. We accept the statement made by Dr.Saraf, the learned senior

counsel for the petitioner that such claims may be referred in the

Permanent Alternate Accommodation Agreement to be entered into

between the petitioner and the respondent no.8 in respect of the writ

property more particularly mentioned in sanctioned plans in file

No.CHE/CITY/1700/F/S/337 (New) dated 12th December, 2018 and

Proforma B dated 17th January, 2018.

32. Till such time the Permanent Alternate Accommodation

Agreement is entered into between the petitioner and the respondent

no.8, ad-interim reliefs granted by this Court on 2nd November, 2022 in

this writ petition and the interim application to continue in terms of

prayer clause (a) of the Interim Application No. 34250 of 2022.

33. The Writ Petition (Lodging) No.21996 of 2022 and Interim KVM

WPL 21996 OF 2022.doc

Application (Lodging) No.3425 of 2022 are disposed of in aforesaid

terms. There shall be no order as to costs. Parties to act on the

authenticated copy of this order.

[KAMAL KHATA, J.]                          [R. D. DHANUKA, J.]