Dismissed

Jerry Thomas v. State of Maharashtra

Bombay HC29 Sept 2010WP/2105/2010

Case brief

AI extract

What is this about?

Petitioners filed a writ petition challenging a redevelopment agreement, building permits, and alleged lack of architectural supervision. The Court dismissed the petition as devoid of merit due to gross delay, acquiescence, and majority compliance with the agreement.

What did the court decide?

Petition summarily dismissed; prayer for stay of eviction order rejected.

Jerry Thomas Vs State of Maharashtra — Property and Title | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION (LODGING) NO.2177 OF 2010

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Jerry Thomas Cherian and others ).. Petitioners

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Versus

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The State of Maharashtra and others

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).. Respondents

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Mr. S.G. Kudle for the Petitioner.

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Mr. M.A. Saiyed, Assistant Government Pleader, for Respondent No.1. Mr. G.W. Mattos for Respondent No.2. Ms. Geeta Joglekar for Respondent No.3.

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Mr. Mukesh Vashi for Respondent Nos.4 and 6.

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CORAM : MOHIT S. SHAH, C.J. AND DR. D.Y. CHANDRACHUD, J. THURSDAY, SEPTEMBER 29, 2010

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P. C. :

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In this petition under Article 226 of the Constitution of India, the petitioners have made the following prayers :-

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(a) rule be issued;

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(b) challenging the redevelopment agreement dated 8 December 2003 in respect of the construction made on the land in question;

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(d) challenging the said redevelopment agreement without the prior approval of State of Maharashtra and Maharashtra Housing and Area Development Authority (MHADA); and

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(e) to direct the concerned police stations to probe the claim of respondent No.6 about his appointment as an architect.

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In the first place, the petition suffers from gross delay, latches and acquiescence as the redevelopment agreement dated 8 December 2003 is challenged in this petition after almost seven years.

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Learned counsel for respondent No.4 society points out that after the redevelopment agreement was signed on 8 December 2003, bhoomi poojan took place on 21 March 2004. All the residents, therefore, had the knowledge that the project had commenced and even then petitioners chose not to challenge the said redevelopment agreement. The learned counsel for respondent No.4 society also points out that out of 172 members of the respondent No.4 society, 168 members have already shifted to the newly constructed premises in the multi-storied building and only the present four petitioners have chosen not to shift to newly constructed premises. Relying on the decision of this Court in Dinesh Kantilal Panchal and others vs State of Maharashtra and others, 2008 (5) Bom. C.R. 668, it is submitted that when respondent No.4 co-operative housing society had entered into the redevelopment agreement as far back as in 2003 and the project commenced in 2004 and the 18 storey tower is already constructed and 168 members have already shifted to the flats in the said tower, the present four petitioners have no independent rights except those given to the petitioners by the statute and the bye-laws. The petitioners can act and speak through the society and the society alone can act and speak on behalf of its members.

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We find considerable substance in the preliminary objection raised on behalf of respondent No.4 society both as regards gross delay, latches and acquiescence and also on the ground that when 168 out of 172 members of respondent No.4 society have already acted as per the agreement and have shifted to the newly constructed premises, the project cannot be stayed on the basis of objections raised by the present four petitioners.

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Even so, these petitioners have contended that NOC was granted by MHADA on 17 November 2004 and condition no.3 shows that the work should be carried out under the supervision of the competent registered architect and licensed structural engineer and respondent no.4 society had not engaged a registered architect and licensed structural engineer. We have gone through the affidavit filed by MHADA wherein it is stated that respondent no.6 engaged for the project is not only a licensed surveyor but also a structural engineer. In view of the said statement in paragraph 5 of the affidavit dated 24 September 2010 filed by the Architect and Planner of MHADA, wherein it is also stated that the plans for the redevelopment project put up by respondent no.6 are in consonance with the Development Control Regulations, we do not find substance in the submission urged on behalf of the petitioners.

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While issuing notice on this petition, it was brought to the notice of the learned counsel for the petitioners as well as petitioner no.1 who was present before the Court that if the petition is not entertained, the petitioners may be subjected to appropriate directions for not having filed the petition bona fide.

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We may also note that in respect of this very project, this Court had passed orders dated 4 September 2010 and 17 September 2010 in Appeal (Lodging) No.506 of 2010 in Review Petition (L) No.47 of 2010 in Writ Petition No.2276 of 2008 and in paragraph 6 of our order dated 17 September 2010 we have also recorded that the Building Proposal Department of the Municipal Corporation has granted occupation certificate to tower C-1 and that copy of the said certificate was also produced at Exhibit-1 to the affidavit dated 13 September 2010 filed by the Assistant Engineer of the Municipal Corporation.

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The learned counsel for respondent no.4 society states that the respondent society has also paid all the dues of the Municipal Corporation and that the water connection is also being provided to the newly constructed tower by today or tomorrow.

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In view of the above, we find no merit in this petition. The petition is, therefore, summarily dismissed.

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The learned counsel for respondent no.4 society states that by order dated 17 September 2010, the respondent no.4 society was prevented from evicting the petitioners from the existing building till 26 September 2010. It is stated that on account of the pendency of the present petition, the respondent society did not take any steps and that now that the petition is being dismissed, respondent no.4 society will proceed further to evict the petitioners from the existing building for which this Court had already passed order on 4 September 2010 directing the petitioners to shift to tower C-1 by 26 September 2010.

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In view of the dismissal of the present petition, it will be open to respondent no.4 society to act on the basis of the said order dated 4 September 2010 and the petitioners will have to vacate the existing premises.

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At this stage, the learned counsel for the petitioners prays for stay of the operation of this order for two weeks.

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We do not find any justification for granting any such stay. The prayer is rejected.

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CHIEF JUSTICE

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DR. D.Y.CHANDRACHUD, J.

Jerry Thomas v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Jerry Thomas v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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