Bombay High Court
Smt. Sushama A Gupta And Anr vs Minal Co-Operative Housing ... on 31 January, 2023
Bench: R. I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
NIJASURE
SHANKAR Date:
NIJASURE 2023.02.02
18:20:30
+0530
6-ia-329-2023.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.329 OF 2023
IN
FIRST APPEAL NO.1117 OF 2018
Sushma A Gupta & Anr. ...Appellants
Versus
Minal CHS Ltd. ...Respondents
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Mr. Uzair Z. Kazi, i/b. YMK Legal for the Appellants.
Mr. C.M. Lokesh, for the Applicant.
Mr. Mayur Khandeparkar with Mr. Rashmin Khandekar and Karishni
Khanna i/b Mr. Bishwajeet Mukherjee and Ms. Humera Syed for
Respondent No.1.
Mr. Rajiv Chavan with Priyanka Chavan and Sweta Ghose i/b.
Santosh Parad for MCGM.
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CORAM : R.I. CHAGLA J.
DATE : 31 January 2023.
ORDER :
1. By this Interim Application, the Applicant No.1 / Original
Defendant No.6 and Applicant No.2 have sought recall of the order
dated 21st December, 2022 passed in the Interim Application (L)
No.30446 of 2022 in First Appeal No.1117 of 2018 and to pass
modified order in this Interim Application.
6-ia-329-2023.doc
2. Having considered the submissions of the parties and in
particular taking note that in the order dated 21st December, 2022, it
was clarified in Paragraph 11, that there had been submissions on the
merits of the impugned judgment and order which is not required to
be go into. It is further relevant to note and had been noted in the
said order that the observation of the City Civil Court in the
impugned judgment and order was that the Defendant Nos.4 to 7
had failed to prove that the notional connection between Plaintiff -
building was made as per approved / sanctioned plan. This
observation was also with regard to shifting of the BSES Sub-Station,
requiring the necessary permission of the concerned authority.
3. The sole purpose of filing the Interim Application (L)
No.30446 of 2022 by the Respondent No.1 Society and which was
under consideration in the order dated 21st December, 2022 was to
seek clarification / modification with regard to the status quo order
passed by this Court which was coming in the way of compliance
with the notice issued by the MCGM under Section 354 of the MMC
Act dated 12th January, 2022. The said notice had considered the
subject structure of the Respondent No.1 society to be in a ruinous
and in dilapidated condition and likely to cause damage to the life
6-ia-329-2023.doc
and property of the persons occupying and residing or passing by the
same. The modification sought by the Respondent No.1 Society of the
status quo order dated 22nd March, 2018 passed by this Court was
for excluding the applicability of the status quo order to the notional
connection which was required to be pulled down for the Applicant -
Society to comply with the Notice of the MCGM dated 12th January,
2022.
4. Accordingly, the order dated 21st December, 2022 was
passed clarifying that the status quo order dated 22nd March, 2018
passed by this Court shall exclude status quo to be maintained in
respect of the notional connection between the subject structure
belonging to the original Respondent No.1 Society and the building
of the Appellants. It was clarified that the Respondent No.1 Society
by demolishing the subject structure in compliance with the notice
issued by the Mumbai Municipal Corporation ("MMC") on 12th
January, 2022 under Section 354 of the MMC Act will not be in
breach of the status quo order in the event the notional connection
between the subject structure and building of the Respondents is
pulled down. It was further clarified in the paragraph 13(iii) of the
operative part that the said order is without prejudice to the rights
6-ia-329-2023.doc
and contentions of the original Appellants, including that they have a
legal right to the land appurtenant to the said notional connection
between subject structure and building of the Appellants as well as
their contention that the construction is beyond FSI of 6550 Sq.ft is
authorized.
5. The said order dated 21st December, 2022 has thereafter
been acted upon and the Respondent No.1-Society has demolished
the subject structure in compliance with the notice issued by the
MCGM dated 12th January, 2022 under Section 354 of the MMC Act.
6. Mr. Kazi, the learned Counsel appearing for the
Appellants / Applicants in the present Interim Application has
submitted that the learned Senior Counsel for MCGM had
erroneously placed reliance upon the impugned judgment and order
dated 19th January, 2018, wherein it has been held that Defendant
Nos.4 to 7 did not produce any documentary evidence on record to
prove their pleadings that they have shifted BSES Sub-Station with
the necessary permission of concerned authority as well as to prove
that notional connection between the Appellants building and the
Respondent No.1 Society building is made as per approved /
sanctioned plan. He has submitted that the view expressed by the
6-ia-329-2023.doc
City Civil Court in the impugned judgment and order that there was
earlier such notional connection is not sufficient to hold that the
notional connection constructed by the original Defendant Nos.4 to 7
is legal is erroneous and requires to be tested in the First Appeal.
7. There is an Affidavit in Reply filed by the Respondent
No.12 MCGM dated 27th January, 2023 which is as per the directions
of this Court by the said order dated 16th January, 2023 which had
directed the MCGM to clarify as to whether the said notional
connection was approved by the MCGM as well as the fact of the
notional connection being in existence prior to 1984. It is not
necessary to go into the averments in the Affidavit in Reply as the
rights and contentions of the parties including the Appellants have
been expressly kept open to be considered at the hearing of the First
Appeal.
8. In my considered view, the learned Senior Counsel for
MCGM was merely referring to the aforementioned observation of
the City Civil Court in the impugned judgment and order. The present
Affidavit in Reply filed by the MCGM shall be taken into
consideration at the hearing of the First Appeal.
6-ia-329-2023.doc
9. There are submissions made by Mr. Kazi as to the
notional connection being sanctioned by the MCGM and the MCGM
have issued prior notice dated 2nd July, 2022 mentioning that the
notional connection between the building under reference and Minal
CHS Ltd. shall be done before asking for occupation certificate.
Further, the notice issued on 28th March, 2003 by MCGM wherein
the plan submitted by the Architect included the notional connection
and it is further mentioned that the notional connection had been
constructed as per the approved plans as the same was in existence
prior to 1984.
10. These submissions of the learned Counsel for the
Appellants / Applicants have been recorded in the order dated 16th
January, 2023 as well as notice taken of documents relied upon.
These documents can be considered by this Court at the hearing of
the First Appeal.
11. In my view the present Interim Application is
misconceived considering that it seeks to recall the order dated 21st
December, 2022 in Interim Application (L) No.30446 of 2022 in First
Appeal No.1117 of 2018 when the order has infact kept the rights
and contentions of the Appellants in the First Appeal expressly open
6-ia-329-2023.doc
including the contentions on the legal rights of the Appellants /
Applicants to the land appurtenant to the notional connection as well
as to their contention that the construction beyond FSI of 6550 Sq.ft.
is authorized.
12. In view thereof, the relief sought for in the Interim
Application is not granted. Interim Application is accordingly
disposed of.
[R.I. CHAGLA J.]
