Amit Ramakant Patkar And Anr vs Sukarya Kalya Shelar Dec Thr Legal ...
2023 Latest Caselaw 3624 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   APPELLATE SIDE CIVIL JURISDICTION

                         WRIT PETITION NO.13600 OF 2022

Shri Amit R. Patkar & Another                      ..       Petitioners.
      v/s.
Shri Sukarya Kalya Shelar
(since deceased) through his LR
1a- Smt. Taibai H. Patil
(since deceased) through her LR
1-a1- Dhakalibai G. Patil
(since deceased) through LR
1a.1a- Kashibai G. Patil & Others                  ..       Respondents.

Ms. Aishwarya Patkar, for the Petitioners.

Mr. Prashant Kamble i/b. Mr. A. S. Rao, for Respondent No.12. Ms. M. P. Thakur, AGP for Respondent Nos. 15 & 16 - State.

CORAM: G.S.KULKARNI & R. N. LADDHA JJ.

DATED : 12th APRIL, 2023.

P.C:-

Respondent Nos.1 to 11 and 13 have already been served. Respondent No.12 is represented by Mr. Prashant Kamble.

2 It appears that the private Respondent Nos. 1 to 11 and 13 are not interested in contesting the present proceedings. The Co-ordinate bench of this Court had heard the Petitioners on the earlier occasion and the following order came to be passed on 21 st November, 2022 which reads thus:-

"(1) The learned Counsel for the Petitioners submits that the proceedings under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 have been initiated by the tenant. The Tenancy Court had issued certificate to them. The Petitioners filed

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Revision before the Maharashtra Revenue Tribunal, Mumbai. The Tribunal partly allowed the Revision setting aside the judgment of the Tenancy Court and remitted the matter. In spite of the same, the construction permission granted in favour of the persons at the behest of the Tenant is not being stayed nor cancelled. The Petitioners had made an Application to the Court. Cognizance has not been taken of the same.

2 Notice to the Respondents, returnable on 21 st December, 2022.

3 Mrs. M. P. Thakur, AGP waives service for Respondent Nos.15 and 16."

3 The case of the Petitioners is that Petitioners are the owners of the land. There are substantive proceedings arising under the Bombay Tenancy and Agricultural Lands Act, 1948 (in short "BT & AL Act), as referred above, are pending. Despite any clear legal rights, it appears that the tenants have entered into a development agreement with Respondent Nos. 12 & 13 who has started certain construction.

4 Our attention is also been drawn by learned Counsel for the Petitioners to an order dated 18 th December, 2020 passed by the learned Civil Judge Senior Division at Thane in Special Civil Suit No.98 of 2015, in a suit which was filed by same tenants, in which, an injunction was granted by the learned Trial Judge, restraining the developers from proceedings with construction. The contention is that despite such order, developer had continued with the construction. The said order is required to be reproduced, which reads as under:-

"(i) The instant application for temporary injunction is allowed in following terms:-

(a) The plaintiffs, defendant No.1 and defendant Nos. 2 to 4 are hereby restrained from making or/ and proceeding with the construction over the suit properties till disposal of suit.

(b) The plaintiffs, defendant No.1 and defendant Nos. 2 to

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4 are hereby further restrained from transferring or/and creating a third party interest in the suit properties and further from changing the nature of the suit properties till disposal of the suit.

        (ii)    Costs in cause."

5               In the aforesaid circumstances, it prima facie, appears that

there is no legal right for Respondent Nos. 12 & 13 in respect of the land in question to undertake redevelopment. Also there are substantive proceedings under the BT & AL Act which are pending before the appropriate forum. In the circumstances, parties would be required to be heard finally.

6               Hence, Rule.

7               Ms. Thakur, learned AGP waives notice for Respondent

Nos.15 & 16. Mr. Kamble waives notice for Respondent No.12.

8 In the facts of the present case, pending the hearing and final disposal of this Petition, Respondent-Corporation is directed not to issue Occupancy Certificate to Respondent No.13-developer and/or by an application for Occupancy Certificate by Respondent Nos.1 to 11 and 13.

9 Respondent No.13 is also directed not to undertake any further construction. Liberty to the Petitioners to apply for final hearing.

(R. N. LADDHA J.)                              (G. S. KULKARNI,J.)




S.R.JOSHI                                                                          3 of 3