Bombay High Court
Kagalwala Building Resident Welfare ... vs Maharashtra Housing And Area ... on 6 February, 2024
Author: G.S. Patel
Bench: G.S. Patel
911-OSIA-1538-2019 IN CONPW-75-2015.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1538 OF 2019
IN
CONTEMPT PETITION NO. 75 OF 2015
WITH
INTERIM APPLICATION (L) NO. 7946 OF 2021
IN
CONTEMPT PETITION NO. 75 OF 2015
IN
WRIT PETITION NO. 974 OF 2012
Kagalwala Building Resident Welfare Association ...Petitioner
Versus
Aaraaish Developers & Ors ...Respondents
Mr Sujit S Nikam, with Nishant M Sangle for the Applicant in IAs &
Petitioner.
Mr PG Lad, with Sayli Apte & Shreya Shah, for the Respondent-
MHADA.
Mr Kunal Waghmare, for the Respondent-MCGM.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 6th February 2024
PC:-
6th February 2024
911-OSIA-1538-2019 IN CONPW-75-2015.DOC
1. The Writ Petition was filed by the Kagalwala Building
Resident Welfare Association. It inter alia sought the cancellation of
permissions granted to the 1st Respondent developer. The Petition
was disposed of by an order and judgment dated 26th February
2013. But we note that in paragraph 22 of that judgment, the relief
against the Municipal Corporation of Greater Mumbai ('MCGM")
for a direction to cancel the No Objection Certificate ("NOC") and
Intimation of Disapproval ("IoD") in favour of the developer (the
4th Respondent to the Writ Petition) was refused. Instead, the
developer was given additional time until 28th February 2015 to
complete construction. In addition, in regard to the transit rent, the
developer was held bound by consent terms filed in Appeal From
Order No 1098 of 2008 in a Notice of Motion in Short Cause Suit
No 1800 of 2008. There was an order of 29th June 2012, in that
Appeal From Order and connected Appeals From Orders. The
Division Bench in the Writ Petition directed that the amount
payable would be in proportion to the area occupied by each of the
Petitioners. Any amounts already paid would have to be adjusted
and all arrears would have to be paid by 1st June 2013.
2. Alleging breach, the Petitioner association filed Contempt
Petition No 75 of 2015. It is still pending.
3. Then, on 8th March 2021, the Petitioner association filed
Interim Application (L) No 7946 of 2021. This Interim Application
is fundamentally defective. It is filed by the Association but seeks
relief in favour of one Farida Mansood Unwalla, the widow of a
deceased tenant, Mansood Ibrahim Unwalla. Annexed to the
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911-OSIA-1538-2019 IN CONPW-75-2015.DOC
Interim Application are letters of no objection from her two sons.
But there is no Heirship Certificate or other document from a
testamentary court. This Interim Application could not have been
filed or verified by the association. It had to be filed by Farida in her
own name.
4. Learned Advocate appearing today is in difficulties. This is a
transferred brief. He does not have a full set of the papers. Interim
Application (L) No 7946 of 2021 is still without final numbering. He
does not even have a copy. We do not know why no application was
made to the Court or to the department for a copy. That would
readily have been granted.
5. In any case, we direct the Advocate for the Petitioner to
immediately obtain a copy and the Registry to supply it on payment
of the necessary copying charges and we further grant leave to the
Petitioner Applicant to amend the IA to delete the name of the
Applicant and substitute the name of Farida Mansoor Unwalla as
the Applicant. All necessary and consequential amendments are also
permitted. Obviously, re-verification will be required. This is only to
save time so that Farida Mansoor Unwalla is not forced to file a
fresh application today after having already lost three years for what
is evidently no fault of her own.
6. The amendments are to be carried out by 20th February
2024.
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911-OSIA-1538-2019 IN CONPW-75-2015.DOC
7. There is yet another Interim Application No 1538 of 2019,
one year older than the one on a lodging number. This seeks a
direction against the developer to pay arrears and an enhanced rate
of rent and also seeks leave to submit a fresh and final list of tenants
of the association. The second part, relating to a fresh list, obviously
cannot be accepted. The certified list is the one that will govern.
New persons cannot constantly make applications like this. If any
entitlements have changed hands, that will require a separate
application and certainly this will complicate matters when it comes
to a question of rent. We do not see how in our writ jurisdiction and,
that too in an Interim Application in a Contempt Petition we can
enhance a rate of rent especially when the Writ Court had said that
the consent terms would be binding on both sides.
8. There may be an order that is possible in regard to any unpaid
arrears of rent, but we will make that order once we have before us
the developer. We are told that the developer has been served but
there is no Affidavit of service shown to us. The Court records
indicate that Mr Kamran Shaikh has entered appearance in the
Contempt Petition for the 1st Respondent developer and its
partners. The Registry will issue notice to Mr Shaikh that the
Contempt Petition along with the two Interim Applications will be
listed high on board on 26th February 2024.
9. In the meantime, the Advocate for the Contempt Petitioners
will serve afresh the entire proceedings in the Contempt Petition
and in the two Interim Applications, both on Mr Shaikh and on the
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911-OSIA-1538-2019 IN CONPW-75-2015.DOC
1st Respondent. We permit service by courier in addition to the
regular modes of service.
10. List the matter on 26th February 2024, high on board.
(Kamal Khata, J) (G. S. Patel, J)
6th February 2024
