M/S. MAHAVIR CONSTRUCTION CO. Vs. DIVYAKANT CHIMANLAL SHAH & ORS.
LAWS(BOM)-2017-1-38
HIGH COURT OF BOMBAY
Decided on January 18,2017

M/S. Mahavir Construction Co. Appellant
VERSUS
Divyakant Chimanlal Shah And Ors. Respondents

JUDGEMENT

- (1.) Heard learned counsel for the parties. With their consent and at their request, this appeal is taken up for final disposal.
(2.) This appeal is directed against the order dated 9 December 2015 made by the City Civil Court, Mumbai (trial Court) restraining Municipal Corporation of Greater Mumbai (MCGM) from granting commencement certificate to the appellant in respect of the redevelopment project without entering into any agreement with the respondents / original plaintiffs in the matter of providing permanent alternate accommodation in the new building to be put up, in pursuance of the redevelopment scheme.
(3.) This Court while admitting the appeal on 27 January 2016, made the following order: "1. Rule. Learned counsel appearing for the respondents waives service. Heard forthwith. 2. I have heard the parties at length. By this civil application, the applicant seeks stay of the impugned order passed by the learned trial Judge. The learned trial Judge has granted injunction against the Corporation from granting commencement certificate until the applicant executing a permanent alternate agreement in favour of the respondents. 3. Mr. Jain, learned counsel appearing for the applicant (original defendant no.6) invited my attention to the prayers in the plaint and would submit that the learned trial Judge has virtually decreed the suit in favour of the plaintiffs at the ad- interim stage. He submits that the applicant has already filed a suit for eviction against the respondent no.1 (original plaintiff) in the Small Causes Court at Mumbai. The said suit is pending. 4. Learned counsel also placed reliance on the judgment of the Division Bench of this court rendered on 23rd June, 2014 in Writ Petition (Lodging) No.1135 of 2014 in case of Municipal Corporation of Greater Mumbai vs. State of Maharashtra and Others and more particularly paragraphs 9(l) and (p) and would submit that though without prejudice to the rights and contentions of the applicant, the applicant was ready and willing to execute the agreement in respect of the area admeasuring 388 sq. ft. similar to the area offered in the other agreements entered into with other tenants, the original plaintiff has refused to execute such agreement. The original plaintiff is seeking larger area from the applicant. In my prima-facie view, the guidelines framed by the Division Bench in Writ Petition (Lodging) No.1135 of 2014 thus would not apply in this situation. 5. Learned counsel appearing for the original plaintiff on the other hand submits that the building is already demolished and thus the applicant shall be directed to safeguard the area which the original plaintiff would be entitled to in lieu of the existing area which was in possession of the tenant through whom, the plaintiff is claiming rights in the suit property. 6. The matter was adjourned from time to time to enable the parties to settle the dispute amicably. 7. The other tenants, who are situated on the plot have been already shifted. The project of the redevelopment cannot be stalled by the original plaintiff. 8. The defendant no.6 has already rendered an undertaking before the trial Court that in the event of the plaintiff proving his entitlement for larger area before the learned trial Judge, the applicant would pay the amount of compensation as may be ordered by the learned trial Judge. In my view, in view of such undertaking also rendered by the applicant, the impugned order passed by the learned trial Judge deserves to be stayed. It is ordered accordingly. 9. The civil application is accordingly disposed of. No order as to costs." ;


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