Dismissed

aderbad co-op soc. Ltd. v. dr aspi f. golwalla and Ors. and thecourt receiver h.c. bombay

Bombay HC4 Feb 2009CHS/455/2006

Case brief

AI extract

What is this about?

In a Chamber Summons moved by a Defendant against the Court Receiver, the High Court declined to direct the Receiver to file a Writ Petition challenging a Heritage Committee order. The court held such an application is misconceived as the Receiver acts for the property, not the Defendant, and independent litigation is the proper remedy.

What the court decided

AI extract

aderbad co-op soc. Ltd. Vs dr aspi f. golwalla and Ors… — Property and Title | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO. 455 OF 2006

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SUIT NO. 514 OF 1984

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Aderbad Co-op. Hsg. Soc. Ltd. ... Plaintiffs. V/s. Dr. Aspi F. Golwalla & Ors. ... Defendants.

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And The Court Receiver, High Court, Bombay. ... Respondents.

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Mr. Guru S. i/b. Rita Bhatia for the Plaintiffs. Mr. Rajesh Shah i/b. Bilawala & Co. for Defendants 8 to 10. Ms. J. Sidhwa a/w. Ms. Jyoti i/b. Thakore Jariwala & Co. for Defendant No.12.

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CORAM : S.C. DHARMADHIKARI,J.

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04TH FEBRUARY 2009.

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P.C. :

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. This is a Chamber Summons seeking directions to the

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Court Receiver to file a Writ Petition challenging the

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order of the Heritage Committee, constituted under the Maharashtra Regional and Town Planning Act, 1966.

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The Chamber Summons is moved by Defendant No.12.

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Defendant No.12 is a firm carrying on business in

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advertising.		Its	sole	propri	etor		has filed	an		affidavit
in su	pport	claiming	that	in	the		above suit	by	an	order
passed	by	this	Court,	the		C	ourt Receiver,	Hi	gh	Court,
Bombay	has	been	appoint	ed	as		a Receiver	of	the	suit
property.		However,	in	the	s	u	it property,	there	is	a
building.		On the	building	ther	e		is a space	which	can	be

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used for putting up the Hoarding/Advertisement. The
Plaintiffs had permitted Defendant No.12 to put such
Hoarding/Advertisement but later on considering the
dispute relating to property and appointment of Receiver,
he had to move the Court and seek appropriate
clarification in order to protect the
Hoarding/Advertisement. After hearing parties, this Court
has permitted the Hoarding/Advertisement to be continued
by directing that the Court Receiver should appoint

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Defendant No.12 as his Agent in so far as the use of this

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space and re-erection of the Advertisement/Hoarding.

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It is stated that all hoardings/advertisements which were put up on buildings and open space was subject matter of a prolonged litigation in a public interest litigation instituted in this Court. The Heritage Committee was directed to go into acts of various parties

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in putting up Hoardings/Advertisements in open spaces and

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on Heritage Buildings and Precincts and enquire as to

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whether the activity is prohibited or permissible. In other words, whether they are on Heritage buildings or in Heritage Precinct, etc. It is stated by Defendant No.12 that he appeared before the Heritage Committee and pointed out that such Advertisements/Hoardings cannot be held to be erected contrary to law and therefore, there was no reason for directing their removal. However, the Heritage Committee points out that it is bound by the Municipal Rules and Regulations and so also the legal provisions and

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therefore,		did	not	accept	the re	quest	of Defen	dant	No.12.
Thus,	the		hoarding	was	direct	ed to	be		removed.
Challenging		this	d	ecision of	the	Heritage	Comm	ittee,	a
Writ	Petition		was	instituted	in	this	Court	by	the
Petitioner		being	Writ	Petition	No.502	of	2006.	That	Writ

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Petition was disposed of on 9th March 2006 by a Division

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Bench of this Court.

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5.		The Pet	itioner	challenged	that ord	er befor	e Ho	n’ble
Supreme	Co	urt	a	nd the	Supr	eme	Cou	rt	has cl	arified	that
even	if	the	real	owner	did	not		chal	lenge the	order	passed
by	the	Her	itage	Comm	ittee,		the		Court	Receiver	can
challenge	suc	h	an	order.		Relia	nce	is	placed	by	Ms.
Sidhwa	on	the	or	der of	the	Supr	eme		Court and	she	contends
that	this	orde	r	concludes	the	issu	e	of	locus-stand	i.	In
the	light	of	the	order	of	the	Supre	me	Court,	the	Court
Receiver	c	an	be	directed	to	file	th	e	Writ Petit	ion,	more
so,	when	Defe	ndant	No.12	is	read	y	and	willing	to b	ear all

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expenses and charges so also costs of filing and

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prosecution of the Writ Petition.

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6.	T	he learned	Counsel app	earing for the Pla	intiffs on
the	other	hand	have	contended	that	the	Co-ope	rative
Housing	Socie	ty	Limited	namely,	the	Plain	tiffs	are
claiming	own	ership	rights	in the	property.	There	is	a
dispute	going	on	in tha	t behalf	between	the	Plaintiffs	and
the	other	Defend	ants.	The Cour	t Receiver	is	appointed	as
Receiver	of	the	prope	rty. The	property	consists	of	a

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building. Members	The building is used and oc of the Plaintiff-Society. The	cupied by Plaintif	the f-Society
does	not desire to challenge the order of	the	Heritage
Committee.	The Court Receiver is appointed	in the	Suit
instituted	by the Society and to preserve	and protect	the
subject	matter thereof. For proper a	dministration	and
managemen	t of the property in dispute, th	e Court	Receiver
has	been appointed. The property does not	vest in	the
Court	Receiver. The Court Receiver,	therefore,	cannot
file an	y Writ Petition, more so, when the	Agency A	greement
with	Defendant No.12 has come to an end.	Defendant	No.12
cannot	be heard to say that Court Rec	eiver must	be
directed	to file any Writ Petition. It	is contended	that
the	order of the Supreme Court only permi	ts the	Court
Receiver	to file Writ Petition but there is	no	direction
issued	therein. The order must be underst	ood as	only
granting	liberty to the Receiver to file	a Writ	Petition.
However,	Receiver can do so only if the	Plaintiffs	and
other	parties seek any directions from the	Court in	that
behalf.	In any event, this is not an	application	of
either	the Plaintiffs or the Court Receiver	. M	oreover,
there	is no consent is granted or obtained	of parties	to
the	Suit. Defendant No.12, who was merely	acting as	an
Agent	of the Court Receiver cannot independ	ently seek	such
leave	or direction and that to in the	Suit of	the
Plaintiff.	If Defendant No.12 is aggrieved	by the	orders
of the the	Heritage Committee and the action of suit, his remedy is to file indepen	the partie dent pro	s to ceedings

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and seek therein such reliefs as are permissible in law.

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The Chamber Summons is, therefore, misconceived and

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untenable.

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The learned Advocate appearing for the Plaintiffs

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has reiterated this plea before me.

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I have perused the Chamber Summons and the

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affidavit in reply so also the further affidavit of

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Defendant No.12.

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9.	The	Hon’ble	Supreme	Court wa	s considering	the
challenge	to	the	order	passed	by the	Division	Bench	in
Defendant	No.1	2’s	Writ	Petiti	on.	The	Petitioner	is
admittedly	an	Ag	ent of	the	Receiver.	It is	an	admitted
position	that	th	e H	eritage	Com	mittee	has	rejected
permission	for	putting	up	a	hoarding	on the	suit	building.
The Div	ision	Bench	has	stated	that t	he Petitio	ner can	have

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no grievance and it is for the Receiver to take steps

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which in law he may be entitled.

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10.	Whil	e challenging	this decisi	on of the	Supr	eme
Court,	Defendant	No.12	relied	upon	th	e order	of the	Single
Judge	of	this Cour	t in	Receive	r’s	Report No.48	of	2006
dated	14th	July 20	06.	The	Supr	eme Court	has	merely
clarified	the	position	that		the	Court	Receiver	can
challenge	the	order	of the	Heri	tage	Committee.	As	and
when	such a	challenge	can	be	raised	by the	Court	Receiver,

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his	locus-sta	ndi		cannot be questioned	i	s	the	further
clarification	.	There		is no directi	on	to	the	Court
Receiver	to	file		any Writ Petition.	The		Writ	Petition
which	was	earlier		filed by Defendant		No.12	has	been
specifically		dismissed	.	The Division	Ben	ch	also	stated
that	it is	for	t	he Receiver to take	steps	in	law to	which
he m	ay	be en	t	itled. This order has	been		challenged	in
Appeal	and	the		Appeal is allowed but	the	Ho	n’ble	Supreme
Court	has	obse	r	ved that the Receiver	can		challenge	the
order	passed	by		the Heritage Committee.		It	is no	where
stated	that	th	e	Court Receiver is	direct	ed	to	challenge
such	an	order	o	r that the Petitioner	can	seek	any	relief
much	less	a		direction to the Receiver	to		challenge	the

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order of the Heritage Committee. The Petitioner before

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the Supreme Court was Defendant No.12.

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11.	In	my view, no reliance c	an be pl	aced up	on the
order	of	the Supreme	Court	to	seek the present	direction.
The	Court	Receiver has	not	been	approached by any	parties
to	the	Suit other than	Defe	ndant	No.12. The status	of
Defendant		No.12 in this	litig	ation	is very clear.	In the
plaint	itself	it is stated	that	Def	endant No.12 came	to be
impleaded		subsequently be	cause	of	the facts which	have
been	pointed	out to	the	Court.	Defendant No.12	has
claimed	that	an agree	ment	with	Defendant No.8	and/or
Defendant	N	os.9 and 10	per	mits	him to put hoardings	and
advertisem	ents	on a po	rtion	of	the northern wall of	the
suit	property.	These r	ights	are	denied by the	Plaintiffs.

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The	dispute	between	the	Pla	intiffs		a	n	d	other	Defe	ndants
including	Defendant	No.12	is	yet	to	be				decided.	The	Suit
is fi	led by	the	Plain	tiffs	seeki	ng		a		de	claration	that
Clause	41 of	the	printed	agr	eemen	ts			fo	r sale	entered	into
between	the ind	ividual	membe	rs	of	the				society	and the	8th
Defendant	is voi	d bec	ause	that	is		i	n		exce	ss of	the
authority	conferred	upon	Defenda	nt N	os.8	by				1 to	7.	The
agreements	between	Defendant	Nos	.8,9	and		1	0		are	void.	The
Plaintiffs	are,	therefor	e,	entitled		for				conveyan	ce of	the

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building absolutely without any hindrance from Defendant

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Nos.8,9 and 10 or Defendant Nos.11 and 12.

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12.	The	status and position of the Court	Receiver in
such	proceeding	s and in law	cannot be o	verlooke	d.	The
Receiver	is	appointed by the	Court during	the	pendency	of
the Su	it becaus	e it is just and	convenient to	do	so an	d in
the	interest	of justice. The	subject matter	of	the	suit
is a	n imm	ovable property.	That such matter	has	to	be
protected,	pres	erved so als	o administered	and	m	anaged
properly	an	d effectively during	the pendency	of	the	Suit.
For	this	purpose, the Court	Receiver has	been	ap	pointed.
Merely	because	there is a	hoarding/advertisement	put	up	on
one	of the	walls of the	building by	Defen	dant	No.12
earlier	and tha	t was permitted	to continue as	Age	nt of	the
Court	Receiver	does not mean	that Defendant	No.12	can	seek
directions	to	the Court Receive	r to file a	Writ		Petition
to	challenge	an order passed	by the H	eritage	Co	mmittee
with	regard	to the	hoarding/advert	isement.		The

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proceedings	between Defendant No.12 and the	Heritage
Committee	are distinct and have no connection with	the
subject	matter of the Suit. If Defendant No.12	is
aggrieved	by the orders of the Heritage Committee, it	is
not as	if he is without any remedy. However,	merely
because	the orders of the Heritage Committee cannot	be
challenged	by him does not mean that the Court	Receiver
can be	directed to challenge the same. That too	by
ignoring	the status of the Court Receiver in the	present
proceedings.	Further, the hoarding/advertisement	can
continue	only if the Heritage Committee orders are	set
aside.	That can be done by Defendant No.12 admittedly	and
he	can seek appropriate orders and directions against	all
parties	to this Suit and the Heritage Committee. At	the
instance	of Defendant No.12 and when neither	the
Plaintiffs	nor the other Defendants are agreeable to	the
Court	Receiver challenging the order of the	Heritage
Committee,	no relief can be granted in this	Chamber
Summons.	The Chamber Summons is misconceived and	is,
therefore,	liable to be dismissed. It is acc	ordingly,
dismissed.	However, this order does not prevent D	efendant
No.12	from instituting independent proceedings and	seeking
appropriate	declarations against the Plaintiffs and	the
other	Defendants to the Suit so also the	Heritage
Committee	and the Court Receiver. All pleas	and

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contentions of all parties in such proceedings are kept

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open.

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(S.C. DHARMADHIKARI,J.)

aderbad co-op soc. Ltd. v. dr aspi f. golwalla and Ors. and thecourt receiver h.c. bombay

Case brief

What is this about?

What the court decided

aderbad co-op soc. Ltd. v. dr aspi f. golwalla and Ors. and thecourt receiver h.c. bombay

Case brief

What is this about?

What the court decided

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