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Bombay High Court
Mozam Ali Mir vs The Mumbai Municipal Corporation Thr ... on 26 March, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
908. AOST-6000-2026.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 6000 OF 2026
WITH
INTERIM APPLICATION (ST) NO. 6001 OF 2026
Mozam Ali Mir Appellant
.. (Org. Plaintiff)
Versus
The Mumbai Municipal Corporation & Ors. Respondents
.. (Org. Defendants)
....................
Ms. Divya V. Parab a/w Mr. Suraj D. Chauhan i/by Ms. Divya V.
Parab, Advocates for Appellant
Mr. Sachin Vajale, Advocate for Respondent Nos. 1 to 3
Dr. Birendra Saraf, Senior Advocate a/w Mr. Vaibhav Charalwar &
Mr. Yash Jain i/by Mr. Yash Jain, Advocates for Respondent No. 4
Mr. Ashish Kamat, Senior Advocate a/w Mr. Aditya Miskita, Mr.
Shiraj Salekar, Ms. Samik Rajput and Ms. Palak Salecha, Advocates
for Respondent No. 5
...................
CORAM : MILIND N. JADHAV, J.
DATE : MARCH 26, 2026
P. C.:
1. Heard Ms. Parab, learned Advocate for Appellant; Mr. Vajale,
learned Advocate for Respondent Nos. 1 to 3; Dr. Saraf, learned Senior
Advocate for Respondent No. 4 and Mr. Kamat, learned Senior
Advocate for Respondent No. 5.
2. Learned Advocates appearing for the respective parties would
draw my attention to the twin orders dated 04.03.2026 and
23.03.2026. After hearing the learned Advocates at the bar, prima
facie, there does not seem to be any dispute whatsoever raised by the
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Appellant insofar as the issue of development is concerned though it
was so recorded in the order dated 04.03.2026. I need not to go into
the specificity for the same for the simple reason that there is
substantive Suit pending before the Trial Court in respect of the
subject flat No. 601 which is filed by third party against predecessor-
in-title of the Appellant. This is a lis with which the Appellant is
concerned.
3. Insofar as the issue of development is concerned, Mr. Saraf and
Mr. Kamat, both the learned Senior Advocates would draw my
attention to the fact that out of 22 members of Society, 17 members
have already vacated their respective premises. They would further
submit that 4 members have agreed to vacate and given letter of
undertaking to that effect. Appellant is the 22 nd member and because
of ad-interim order passed on 04.03.2026, he is yet to vacate.
4. Both the learned Senior Advocates persuade the Court to vacate
the ad-interim order primarily because whatever is argued before the
Trial Court goes to show that there is no issue with regard to any
opposition for redevelopment raised by Appellant. Appellant is duly
represented by Ms. Parab. Appellant is also present in Court. In any
given case like the present one it is but natural for the litigant to be
concerned about the fruits of redevelopment especially when litigants
feel that he has substantive right in the suit property / flat. Such is the
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case before me. Merely because the Appellant is embroiled in
litigation or may be embroiled in litigation with respect to the suit flat
with third party will not entitle him to stall redevelopment. There are
affidavits which are filed by the Appellant in the Trial Court which
prima facie show that he has not opposed redevelopment of the
Society rather he would join redevelopment. Insofar as the lis with
respect to entitlement is concerned, it is a separate cause of action.
Same should not stall the redevelopment of Society since it affects
substantive rights of Society, Developer and all other members and
most importantly the time which goes into such redevelopment in
today's time and therefore insofar as the Appellant's substantive right
is concerned, same will be governed by the decision of this Court in
accordance with law which is prima facie well settled by the Division
Bench of this Court in the case of Ritesh Haldar v. Elite Housing LLP
and Ors. in Commercial Arbitration Appeal (L) No. 14486 of 2025.
5. Be that as it may, today because of the fact that possession of
the property is claimed to be with the Appellant, Appellant would be
entitled to transit rent but to be on the safer side, it would be
appropriate if this Court appoints Court Receiver to visit the subject
flat No. 601 tomorrow i.e. on 27.03.2026 and take possession of the
flat from the occupant of the said flat and make appropriate report to
the Court, only after which this Court will be in a position to pass
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further orders regarding transit rent, corpus and all other charges due
and payable in accordance with law. Hence Court Receiver of this
Court stands appointed for the above exercise.
6. Needless to state that because of this order, the ad-interim
injunction which has been granted on 04.03.2026 in paragraph No. 9
thereof stands immediately vacated. There is no embargo otherwise
on the Development of the Society. Appellant is directed to cooperate
if he claims to be in possession. Though he has shown the key of the
said flat to this Court, however that cannot be a case to determine
that he is in possession.
7. Court Receiver shall visit the said flat and accordingly take
cognizance of the situation and take physical possession of the said flat
and accordingly make appropriate report as to from whom he has
taken possession so that final order can be passed to dispose of the
present Appeal from Order.
8. In fact it is also brought on record that the Appellant has been
admitted as member of the society on the basis of registered sale
transaction which has been submitted to the Court. So whatever
rights of Appellant with respect to corpus or any other benefits are
concerned, same would undoubtedly be decided in accordance with
law. Insofar as the transit rent is concerned, if Appellant hands over
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possession to the Court Receiver tomorrow, appropriate orders will be
passed in accordance with law to give transit rent to him.
9. Court Receiver shall act on a server copy of this order. All
parties are directed to cooperate with the Court Receiver.
10. Court Receiver shall make appropriate report to the Court
before the next date.
11. Stand over to 30th March, 2026 under the caption "First on
Board".
Amberkar [ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN Date:
AMBERKAR 2026.03.26
16:20:00
+0530
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