Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1208812089 OF 2018
[Arising out of SLP (C) Nos. 1009310094 of 2016]
Akhil Bhartvarshiya Marwari Agarwal
Jatiya Kosh & Ors .. Appellants
Versus
Brijlal Tibrewal & Ors. .. Respondents
WITH
CIVIL APPEAL NO. 12090/2018 @ SLP(C) No. 15056/2016
and Contempt Petition Nos. 2526/2018
J U D G M E N T
M. R. Shah, J.
1. Leave granted in all the Special Leave Petitions.
2. As all these appeals are interconnected between the same parties
Signature Not Verified
and with respect to the same properties, these are being disposed of
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.12.14
19:41:51 IST
Reason:
by this common judgment.
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3. Feeling aggrieved and dissatisfied with the impugned order dated
23.12.2014 in F. A. No. 466 of 2010 and the order dated 04.07.2015
in Civil Application No. 1698 of 2015 in F.A.No.466 of 2016 passed by
the High Court of Judicature at Bombay (hereinafter referred to as the
‘High Court’), the original Defendants have preferred the present
appeals.
3.1 Feeling aggrieved and dissatisfied with the impugned final order
dated 10.09.2015 passed by the High Court in Writ Petition No. 992 of
2015 the original Petitioners of the aforesaid Writ Petition have
preferred the present appeals.
4. The facts leading to the present appeals in nutshell are as under:
That Appellant No. 1 Trust Akhil Bhartvarshiya Marwari Agarwal
Jatiya Kosh (hereinafter referred to as the ‘Trust’) was, registered
under Bombay Public Trusts Act, 1950. According to the Trust, under
a duly registered Conveyance dated 30.10.1974, the Trust acquired
9797 sq. meters of land with a charitable object of providing Housing
to weaker sections of the Society. That the said area of 9797 sq.
meters included the Plot bearing CTS No. 97/A5/2 of Village
Chinchavli, Malad (East), Mumbai admeasuring 2593.70 sq. meters.
According to the Trust, the Mumbai Municipal Corporation sanctioned
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the plan of the Trust in the year 197475 for construction of building
A1 to be constructed on subplot carved out of CTS No. 97/A5/2 (the
disputed property). That the building A1 was to consume the area of
1009.70 meters equivalent to 1205 sq. yards. That, between 197578,
the Trust constructed building A1 comprising of 20 Flats each
admeasuring builtup area of 588 sq. ft. and the purchasers took
possession of the respective flat. Thereafter, about 26 years after they
took possession, the PurchasersRespondents herein the original
Plaintiffs filed Suit No. 4111 of 2004, inter alia, for directing the Trust
and others to execute the Conveyance of Plot No. A/1 claiming that
they were entitled to the Plot area of around 1205 sq. yards (1009.70
sq.meters). That the original Plaintiffs prayed for the following reliefs
in the Suit:
a) That it is declared that the Defendant No. 1 is bound and liable:
i) To complete the said building A/1 in accordance with the
building plans sanctioned by and in terms of the conditions
of IOD and CC issued by the Defendant No. 2 in respect
thereof.
ii) To obtained Occupation Certificate for the said building No.
A/1.
iii) To provide supply of municipal water to the said building
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A/1.
iv) To obtain building Completion Certificate for the said
building A/1.
v) To form cooperative housing society of the Plaintiffs.
vi) To convey the said building A/1 together with the plot of
land J/1.
b) That this Hon’ble Court may be pleased to pass permanent order
directing:
i) Defendant No. 1 to obtain occupation certificate and
municipal water connection to the said building A/1.
ii) Defendant No. 1 to form cooperative housing society of the
plaintiffs.
iii) Defendant No. 1 to convey the said building together with
plot J/1 to the Cooperative Housing Society of the
Plaintiffs.
iv) Defendant No. 1 not to carry out any construction upon the
said plot J.
v) Defendant No. 2 to cancel the permission given to the
Defendant No. 1 to carry out construction on the said plot
“J”.
vi) Defendant No. 2 not to give any further permission to
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Defendant No. 1 to carry out any construction on the said
plot “J”.
vii) Defendant No. 2 to take necessary actions against
Defendant No. 1 for carrying out construction of
unauthorized hutments.
viii) Defendant No. 2 to take necessary actions against
Defendant No. 1 for cutting of trees.
4.1 It was the case on behalf of the original Plaintiffs that the
Plaintiffs have paid full purchase price for purchase of their respective
flats in the said building A1, constructed by the original Defendant
No. 1, Trust. That, though the Trust handed over the possession of
the flats to the respective flat owners and they are put in possession
and occupation of the respective flats, the Trust have failed to obtain
occupation certificate of the said building in terms of the IOD and CC
issued by the Corporation. That it was the case on behalf of the
original Plaintiffs that the original Defendant No. 1 Trust, as promoter
under the provisions of Maharashtra Ownership Flats Act, 1963
(hereinafter referred to as the ‘MOFA’) were bound to enter into the
agreement, as prescribed under the said Act with all such flat
purchasers for sale of the flats. It was the case on behalf of the
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original Plaintiffs that, under the provisions of the ‘MOFA’ and,
otherwise also, it is the basic duty and responsibility of the Trust to
provide all the essential supplies and services including supply of
water, electricity and sanitary services to be enjoyed by the flat
purchasers. It was also the case of the original Plaintiffs that the
Trust was bound to form the Cooperative Society of the flat
purchasers under the ‘MOFA’, however, though the Trust collected
from each of the flat purchasers an amount of Rs. 351/ towards
membership fee and share money of such Society, they did not form
such a Cooperative Society. It was a specific case on behalf of the
original Plaintiff that the building occupied by the plaintiffs are
consisting of ground plus four storeys and the total builtup area is
around 1205 sq. meters. It was the case on behalf of the original
Plaintiffs that, under the provisions of law, the Plaintiffs and/or the
Society to be formed by the flat purchasers are entitled to an area of
land corresponding to the builtup area of building so constructed of
such land utilizing the FSI permissible at the relevant time. It was the
further case on behalf of the original Plaintiffs that despite the above,
the Trust original Defendant No. 1, made an attempt to carry out some
construction just adjacent to the said building A1 of the plaintiffs
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which was registered by the plaintiffs even by making complaint to the
Defendant No.2, Corporation. However, as no action was taken by the
Corporation for illegal and unauthorized construction on the plot
adjacent to building A1, the original Plaintiffs instituted the aforesaid
Suit and prayed for the aforesaid reliefs.
4.2 The Suit was resisted to by the original Defendants. The original
Defendant No. 1 Trust and original Defendants Nos. 3 to 17, filed the
common written statement denying the averments and allegations in
the Suit. It was the case on behalf of the original Defendant, so stated
in the written statement that the original Defendant No. 1 and 3 to 17
are the owners of property bearing CTS Nos. 97/A5/2, 97/A5/4 and
97/A5/3 total admeasuring 9797 sq. meters. That the property was
purchased by the Trust with intention to develop the same for the
benefit of middleclass citizens. The application was made to the
Divisional Registrar to grant permission which was granted on
20.12.1975. That thereafter, Defendant No. 1 Trust appointed an
Architect, for the purpose of submitting plans. The plans were
submitted for construction of 14 buildings, each being ground plus
four upper floors. It was further contended that the Trust could
complete only one building, as further construction could not be done
because of the declaration of the Suit Plaint as the surplus land under
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Urban Land Ceiling Act. The appeal preferred by the Trust was partly
allowed in 1993 and 1998 and only 4000 sq. meters area was declared
as surplus land. It was submitted that, therefore, the Trust has to
drop the idea of further development and it was, therefore, decided to
construct structures for only charitable purposes like Schools,
Colleges etc. It was further contended that the plot is effectively
divided into three parts, first part is building occupied by the
plaintiffs, second is the School building and the third being the plot
reserved for garden. It was further contended that FSI in respect of
the plot in which the plaintiffs’ building is situated is not fully
consumed and they are entitled to consume full FSI by putting up
additional construction for charitable purposes and only thereafter
they are ready and willing to convene the property. It was further
contended that there is no agreement entered into with any of the flat
purchasers and that only after approval of the draft, the agreement
can be entered into. It was submitted that after compliance of all these
formalities, the original Defendant No. 1 Trust, can consider the
formation of the society. Therefore, it was requested to dismiss the
Suit.
4.3 That the learned Trial Court framed the following issues:
1) Does the defendant no. 2 prove that the suit is maintainable
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in absence of notice u/section 527 of MMC Act?
2) Does plaintiff prove that he is entitled for direction to
defendant no. 1
I. To complete the building A1 in accordance with the
building plans sanctioned by and in terms of the
condition from IOD and CC issued by the defendant
no. 2 Corporation in respect thereof?
II. To obtain occupation certificate for the building no.
A1.
III. To provide supply of municipal water to the building
no.A.
IV. To obtain building completion certificate for building
no. A.
V. To form cooperative housing society of the front age.
VI. To convey building no. A1 with the plot of land J1 to
the purchasers.
3) Does plaintiff prove that they are entitled for the reliefs as
prayed?
4) What decree/order?
4.4 That on behalf of the plaintiffs as many as seven witnesses came
to be examined who were all flat purchasers.
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4.5 On behalf of Defendant. one Omprakash Didwanja DW1 came to
be examined. Both the parties produced the documentary evidences.
That, on appreciation of evidence, the learned Trial Court decreed the
Suit as under:
“Defendant No.1 shall execute and register the agreements in
favour of flat purchasers as per Section 4 of ‘MOFA’ at the cost of
plaintiffs within three months from the date of order.
Defendant No.1 shall complete the suit building in accordance
with the building plans sanctioned as per IOD and CC issued by
Defendant No. 2 and obtain Occupation Certificate within four months
from the date of order. If defendant no. 1 failed to do so within
stipulated time, plaintiffs shall get the work done through any other
Builder of their choice and recover the cost from defendant no. 1 and
thereafter BMC shall grant Occupation Certificate to the plaintiffs.
Defendant No.1 is also directed to make the necessary
compliance for obtaining supply of municipal water to the suit
building.
Defendant No. 2 shall supply the municipal water to the suit
building on humanitarian ground till the full compliance is made by
plaintiffs and defendant no. 1.
Defendant No. 1 is directed to form a cooperative Housing
Society of the flat purchasers of the suit building within four month
from the date of order:
Defendant No. 1 is entitled to the balance FSI of the said plot of
land which was available to them at the time of sanction of original
plans, which Defendant No. 1 is entitled to consume the same till
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conveyance is registered.
Defendant No. 1 shall convey the title and execute documents in
favour of the society in respect of the suit building and land to the
extent of suit building as shown in the plans within six months from
the date of the order, failing which plaintiffs shall be entitled to apply
before the Competent Authority u/section 5A for unilateral
conveyance in their favour.
Decree be drawn accordingly.”
5. That feeling aggrieved and dissatisfied with the judgment and
decree passed by the Trial Court decreeing the Suit No. 4111 of 2004,
the original Defendants (except for Defendant No. 2 Corporation)
preferred the First Appeal No. 466 of 2010 before the High Court. At
this stage, it is required to be noted that during the pendency of the
Suit, the Society of the flat purchasers was registered in the name of
Agrasen Cooperative Housing Society Ltd. under the provisions of the
Maharashtra Cooperative Societies Act, 1960. Thereafter, during the
First Appeal preferred by the original Defendants, in the year 2014,
the Society initiated proceedings before Divisional Registrar, Co
operative Societies for execution of Conveyance Deed. That, thereafter,
the High Court dismissed the Appeal No. 466 of 2010 by judgment
and order dated 04.12.2014. The High Court specifically held that a
Deed of Conveyance of the land to the extent of the building to be
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executed within nine months.
5.1 It appears that in the proceedings before the Divisional Registrar
initiated by the Society, the Trust filed a reply before the Divisional
Register on 10.12.2014 pointing out that the Respondents herein the
original Plaintiffs were entitled to the Conveyance of land admeasuring
1009 sq. meters only and not 2593.70 sq. meters as claimed by
original Plaintiffs. That, thereafter, the High Court, on an oral
application of the Respondents herein by way of “Note for speaking to
the Minutes” clarified that the words “2700 sq. feet” appearing in
paragraph 8 of the judgment and order dated 04.12.2014 should be
read as “2700 sq. meters”. It appears that as the objection was raised
by the Trust before the Divisional Registrar that the Respondents are
entitled to Conveyance of land admeasuring 1009 sq. meters only and
not 2593.70 sq. meters as alleged and prayed, and to get over the said
objection of the Appellants before the Divisional Registrar, the
Respondentsoriginal Plaintiffs again made an oral application by way
of “Note for speaking to the Minutes” alleging that though in the
paragraphs 8 and 9 of the judgment and order dated 04.12.2014, it
was mentioned that the Respondents were entitled to get the Deed of
Conveyance executed in respect of the area equivalent to 2700 sq.
meters, but in the operative part, it was mentioned that Conveyance
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in respect of the land only to the extent of plot be executed and,
therefore, the order deserves to be corrected by way of mentioning the
area of 2700 sq. meters. That by the impugned order, the High Court
virtually modified its earlier order dated 04.12.2014 and directed the
execution of the deed of Conveyance of the land to the extent of
building i.e. 2700 sq. meters. It appears that on the basis of the order
dated 23.12.2014 passed by the High Court directing to execute the
Conveyance of the land to the extent of the building i.e. 2700 sq.
meters, vide order dated 13.01.2015, the Divisional Registrar passed
an order granting deemed Conveyance of the area admeasuring
2593.70 sq. meters.
5.2 It appears that, thereafter, the Appellant herein, the Trust and
other filed Civil Application No. 1698 of 2015 in F.A. No. 466 of 2010,
praying for modification of the direction to execute the deed of
Conveyance to the extent of 2700 sq. meters. Simultaneously, the
Petitioner also filed Writ Petition No. 992 of 2015, challenging the
order passed by the Divisional Registrar granting the deemed
Conveyance.
5.3 That by impugned order the High Court has dismissed the Civil
Application No. 1698 of 2015 in First Appeal No. 466 of 2010.
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However, by dismissing the Civil Application, the High Court has
further clarified that the appellants shall be entitled to consume the
balance FSI of plot of the land. That by the impugned order, the High
Court has also dismissed the Writ Petition No. 992 of 2015 and has
confirmed the order of deemed Conveyance for the area admeasuring
2593.70 sq. meters.
6. Feeling aggrieved and dissatisfied with the impugned order
passed by the High Court below “Note for speaking to the Minutes” in
First Appeal No. 466 of 2010 as well as the order passed in Civil
Application No. 1698 of 2015 in First Appeal No. 466 of 2010, the
original DefendantsAppellants have preferred the present SLP (Civil)
Nos. 1009394 of 2016. Feeling aggrieved and dissatisfied with the
order passed by the High Court in Writ Petition No.992/2015, the
original Petitioners have preferred the SLP (C) Nos. 15056 of 2016.
7. Shri C.A. Sundaram, learned Senior Advocate and Shri Shyam
Divan, learned Senior Advocate have appeared on behalf of the
respective Appellants in respective Appeals and Shri Neeraj Kishan
Kaul, learned Senior Advocate, Shri P.S. Patwalia, learned Senior
Advocate and Shri R.P. Bhatt, learned Senior Advocate have appeared
on behalf of the contesting Respondentsoriginal Plaintiffs. Shri Pallav
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Shishodia, learned senior counsel has also appeared on behalf of the
Respondent, Municipal Corporation.
8. Shri C. A. Sundaram, learned Senior Advocate appearing on
behalf of the Appellantsoriginal Private Defendants has vehemently
submitted that the impugned orders are not sustainable at law.
8.1 It is vehemently submitted by learned counsel that the impugned
order dated 23.12.2014 passed in F.A. No. 466 of 2010 on the “Note
for speaking to the Minutes” is wholly unsustainable under the law
and is wholly without jurisdiction.
8.2 It is vehemently submitted by learned counsel that the impugned
order below “Note for speaking to the Minutes”, is, as such, can be
said to be wholly without jurisdiction inasmuch as such order could
not have been passed on the “Note for speaking to the Minutes”. It is
vehemently submitted by the learned counsel that an application for
“Note for speaking to the Minutes” is required to be entertained only
for the limited purposes of correcting the typographical error or an
error through oversight, which may have crept in while transcribing
the original order. It is submitted that as such, the impugned order
on the “Note for speaking to the Minutes” is virtually modifying
and/or reviewing the earlier order passed in First Appeal and,
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therefore, such an order could not have been passed by the High
Court on an application for “Note for speaking to the Minutes”. It is
submitted that while passing the impugned order, the High Court has
given further directions and, thereby, has virtually modified the
original order. It is submitted that such a course was not open to the
High Court while deciding the said “Note for speaking to the Minutes”.
It is submitted that, therefore, the impugned order on “Note for
speaking to the Minutes” is not sustainable at law. In support of his
above submissions, the learned Senior Advocate has heavily relied
upon the decision of Gujarat High Court in the case of Kotak
Mahindra Bank Ltd. Vs. Official Liquidator of M/s. Gujrat BD
Luggage Ltd. 2012 SCC Online Gujrat 4339 as well as the decision
of the Division Bench of the Bombay High Court in the case of the
Artson Engineering Ltd. Vs. Indian Oil Corporation Ltd. 2015
SCC Online Bombay 39.
8.3 It is further submitted by learned counsel that such an order
passed on “Note for speaking to the Minutes” is virtually modifying its
earlier judgment and order in Frist Appeal. It is submitted that as
such, while at the time of deciding and disposing of the First Appeal, a
specific submission was made on behalf of the parties with respect to
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the area for which the Deed of Conveyance to be executed and the
submission on behalf of the respective parties were noted and
thereafter the High Court dismissed the appeal without any specific
reference whether the Deed of Conveyance to be executed for the total
area of 2700 sq. meters. It is submitted that, therefore, even if an
independent review application would have been preferred in that case
also such an order could not have been passed, which is passed as
such on the “Note for speaking to the Minutes”, which is not
sustainable as submitted hereinabove.
8.4 It is further submitted by learned counsel that even otherwise the
impugned order could not have been passed by the High Court and
that too in the appeal preferred by the appellants more particularly
when the High Court dismissed the appeal preferred by Appellants
original Private Defendants and confirmed the judgment and decree
passed the learned Trial Court. It is vehemently submitted that by the
impugned order, as such the High Court has granted the relief which
as such was not specifically granted by the learned Trial Court while
decreeing the Suit preferred by the original Plaintiffs. It is submitted
that when against the judgment and decree passed by the learned
Trial Court, only the original Private Defendants preferred the appeal
and there was neither any cross objection preferred by the original
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Plaintiffs nor any appeal preferred by the original Plaintiffs, the High
Court could not have passed such order (apart from the fact passing
the order on “Note for speaking to the Minutes”), when the High Court
dismissed the appeal. It is submitted that at the most the High Court
can/could have dismissed the appeal confirming the judgment and
decree passed by the learned Trial Court. It is submitted, that by
dismissing the appeal preferred by the Appellantsoriginal Private
Defendants and when neither there was any cross objection nor any
appeal preferred by the original Plaintiffs, the High Court could not
have passed any order beyond the judgment and decree passed by the
learned Trial Court. It is submitted that by passing the impugned
order as such the High Court has granted the relief and issued
directions which is beyond the judgment and decree passed by the
learned Trial Court. It is submitted that, therefore, thereafter when
the appellants preferred the application to recall the order passed on
“Note for speaking to the Minutes”, the High Court ought to have
recalled such order. It is submitted that, however, the High Court
has mechanically rejected the review application. It is submitted that,
therefore, the impugned orders passed on “Note for speaking to the
Minutes”, and the order passed in review application deserves to be
quashed and set aside.
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8.5 It is further submitted by the learned counsel that even otherwise
the High Court has committed grave error in passing the impugned
order on “Note for speaking to the Minutes” directing the
Appellants/original Defendants to execute the Deed of Conveyance of
the land to the extent of building i.e. 2700 sq. meters. It is submitted
that while passing the impugned order and directing the appellants
the original Defendant No. 1 to execute the Deed of Conveyance of the
land to the extent of the building i.e. 2700 sq. meters, the High Court
has not at all considered the fact that as such the built up area of the
building (A1), even as per the original Plaintiff was admeasuring 1009
sq. meters (1205 sq. yards).
8.6 It is further submitted that as such the builtup area of the
building A1 was admeasuring 1009 sq. meters even as per the Plan
approved and the Suit was filed only to execute the Deed of
Conveyance to the extent of area of the building. It is submitted that,
therefore, also the High Court has committed grave error in directing
to execute the Deed of Conveyance to the extent of building i.e. 2700
sq. meters.
8.7 It is submitted by learned counsel that even otherwise it is not
appreciable how the High Court has arrived at the figure of 2700 sq.
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meters. It is submitted that even that was not the case on behalf of
the plaintiffs.
8.8 It is further submitted by the learned counsel that even the
averments made in the Plaint, the Plaintiffs so stated in paragraph 18,
that the total builtup area of building of A1 is around 1205 sq. yards
(wrongly stated as 1205 sq. meters). It is submitted that in paragraph
18 the Plaintiffs specifically stated and it was the specific case that
original Plaintiffs and/or the Society to be formed by the flat
purchasers are entitled to an area of land corresponding to the built
up area of the building so constructed on such land utilizing the FSI
permissible at the relevant time. It is submitted that it was
specifically stated in paragraph 18 in the Plaint that the Plaintiffs are
entitled to a minimum plot area of around 1205 sq. yards (wrongly
stated as 1205 sq. meters) or thereabout. It is submitted that,
therefore, the impugned orders passed by the High Court directing to
execute the Deed of Conveyance to the extent of 2700 sq. meters is
beyond even the case on behalf of the Plaintiffs so pleaded in the
Plaint.
8.9 Taking us to the reply filed on behalf of the Municipal
Corporation, it is vehemently submitted by learned counsel that even
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according to the Corporation as per approved layout plan, CTS No.
97/A5/2 on which building A1 on the total area of 1009 sq.meters
was constructed was total measuring 2593.70 sq. meters. It is
submitted, therefore, in any case, how the High Court has arrived at
the figure of 2700 sq. meters is not at all appreciable. It is submitted
that when the entire plot bearing CTS No. 97/A5/2, as per the
approved layout plan was of 2593.70 sq. meters on which building A1
was constructed admeasuring 1009 sq. meters, there is no question of
executing the Deed of Conveyance more than that more particularly
2700 sq. meters as directed by the High Court while passing the
impugned order on “Note for speaking to the Minutes”.
8.10 It is further submitted by the learned counsel that even while
passing the decree and allowing the Suit, the learned Trial Court
specifically directed the original Defendant No. 1 to convey the title
and execute documents in favour of the Society in respect of the Suit
building and the land to the extent of Suit building as shown in the
Plans i.e. 1009 sq. meters. It is submitted, therefore, while dismissing
the appeal preferred by the Appellants, the High Court could not have
passed any order beyond the decree passed by the learned Trial Court,
more particularly, when the original Plaintiffs neither filed any cross
objection nor preferred any appeal.
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8.11 It is further submitted by learned counsel that even the original
Private Defendants used the FSI corresponding to the builtup area of
the building A1 i.e. 1009 sq. meters. It is further submitted that
what was sold/sought to be conveyed to the original
Plaintiffs/Occupiers was the building A1 admeasuring 1009 sq.
meters only. It is submitted, therefore, that they could not have
sought any relief beyond the area admeasuring 1009 sq. meters. It is
submitted, therefore, as such they rightly averred in the Plaint that
they are entitled to the Deed of Conveyance to the extent of the land of
the building i.e. 1009 sq. meters. It is submitted, therefore, even the
learned Trial Court also while passing the Decree directed to execute
the Deed of Conveyance accordingly.
8.12 The learned counsel appearing on behalf of the Appellants have
taken us to the layout plans and had submitted that on the plot
bearing CTS No. 97/A5/2 other three buildings were also to be
constructed over and above building A1, however, during the
pendency of litigation under the Urban Land Ceiling Act, further
construction was not made. It is submitted that, therefore, at the
most original Plaintiff shall be entitled for execution of the Deed of
Conveyance to the extent of 1009 sq. meters only, that is the land on
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which building A1 was constructed which was sold to the original
Plaintiffs and its Members.
8.13 Making the above submission made by Shri C.A. Sundaram,
learned Senior Advocate appearing on behalf of the Appellant has
requested to allow present Appeals and quash and set aside the
impugned orders passed by the High Court.
9. Shri Shyam Divan, learned Senior Advocate appearing on behalf
of the Appellants in Civil Appeals arising out of the SLP(Civil) No.
15056 of 2016 has reiterated what was submitted by Shri Sundaram,
learned Senior Advocate appearing on behalf of the Appellants in Civil
Appeals arising out of SLP (Civil) Nos.1009394 of 2016. He has
further submitted that as such the order passed by the Divisional
Registrar directing of deemed Conveyance of the land to the extent of
2593.70 sq. meters is as such based upon and relying upon the order
passed by the High Court below the “Note for speaking to the Minutes”
(the impugned order before this Court). It is submitted that, therefore,
once the impugned order passed by the High Court passed below the
“Note for speaking to the Minutes” is set aside, as prayed for by the
Appellants, the order passed by the Divisional Registrar confirmed by
the High Court would automatically go. It is submitted that even
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otherwise, even on merits also the order passed by the Divisional
Registrar of deemed Conveyance of the land to the extent of 2593.70
sq. meters is not sustainable and is actually illegal. It is submitted
that, therefore, the High Court ought to have allowed the writ petition
preferred by the appellants.
9.1 Making above submission it is requested to allow the present
appeals and quash and set aside the order passed by the High Court
dismissing the Writ Petition confirming the order of deemed
Conveyance of the land to the extent of 2593.70 sq. meters passed by
the Divisional Registrar.
10. All these appeals are vehemently opposed by Shri Neeraj Kishan
Kaul, learned Senior Advocate, Shri P.S. Patwalia, learned Senior
Advocate and Shri R.P. Bhatt, learned Senior Advocate appearing on
behalf of the original Plaintiffs.
10.1 Learned counsel appearing on behalf of the original Plaintiffs
have vehemently submitted that, in the facts and circumstances of the
case, no error has been committed by the High Court in passing the
impugned order on “Note for speaking to the Minutes”. It is
vehemently submitted by learned counsel appearing on behalf the
original Plaintiffs that when it was pointed out to the High Court that
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while disposing of the appeal, though there was specific observation in
paragraphs 8 and 9 that the Deed of Conveyance is to be executed for
2700 sq. meters, while passing the operative portion of the order there
was no specific reference to the area of the land and, therefore, when
the same was pointed out by submitting “Note for speaking to the
Minutes”, the same is rightly corrected by the High Court by passing
the impugned order. It is submitted that the impugned order on the
“Note for speaking to the Minutes”, as such can neither be said to be
either wholly without jurisdiction as contended on behalf of the
Appellants nor it can be said to be an order reviewing/modifying
earlier order passed in First Appeal.
10.2 It is vehemently submitted by learned counsel for the original
Plaintiffs that even in the prayer clause in the Suit, in paragraph
37(vi), it was prayed to direct the original Defendant No. 1 to convey
the said building A1 together with the plot of land J1. It is
submitted that the building A1 might have been constructed on the
land admeasuring 1009 sq. meters, however, the entire plot was
admeasuring 2593.70 sq. meters. It is submitted that, therefore, the
Suit was for 2593.70 sq. meters of land. It is submitted that even the
Defendants’ witnessDW1 Omprakash Didwanja in his cross
examination specifically admitted that the Suit building has been
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constructed on the plot of land admeasuring 2573.31 sq. meters. It is
submitted that, therefore, the High Court has not committed any error
in directing the Appellantoriginal Defendant No. 1, to execute the
deed of Conveyance of the land to the extent of the plot area.
However, the learned counsel appearing on behalf of the original
Plaintiffs are not in a position to satisfy how the High Court has
arrived at the figure of 2700 sq. meters of the land for which the
Defendant No. 1 is directed to execute the Deed of Conveyance. It is
submitted that, in any case, the original Defendant No. 1 is required to
execute the Deed of Conveyance of the land total admeasuring
2593.70 sq. meters which is the area of the plot.
10.3 It is further submitted by learned counsel that, as such, the
original Defendants constructed the building A1 only and it is an
admitted position that, thereafter, no construction has been made on
the remaining land of the plot. It is submitted that even the original
Defendant No. 1 used the FSI of the total area of the plot. It is
submitted that, therefore, the original Defendant No. 1 has to execute
the Deed of Conveyance of the land to the extent of at least 2593.31
sq. meters. It is submitted that even the Divisional Registrar also, not
only on the basis of the order passed by the High Court impugned in
the present appeals, even on considering the materials on record,
27
passed an order of deemed Conveyance of the land to the extent of
2593.31 sq. meters.
10.4 Making above submissions and relying upon the layout plans
sanctioned by the Corporation, it is requested to dismiss the present
appeals. The learned Senior Advocate appearing on behalf of the
original Plaintiffs has submitted that even by the impugned orders the
High Court has passed in favour of the Appellants herein to the extent
allowing the additional FSI.
11. Heard the learned counsel appearing on behalf of the respective
parties at length. We have also gone through the impugned order
passed by the High Court passed below the “Note for speaking to the
Minutes”. While passing the impugned order, the High Court has
directed the Appellants herein to execute the Deed of Conveyance of
the land to the extent of the building i.e. 2700 sq. meters in favour of
the original Plaintiffs and/or the Society. It is also required to be
noted that while passing the impugned order in Civil Application
No.1698 of 2015 in First Appeal No.466 of 2010, in which it was
requested by the Appellants herein to modify the order dated
23.12.2014 passed below the “Note for speaking to the Minutes”, the
High Court has even further clarified that the Appellants herein are
28
entitled to consume balance FSI of plot of land. Therefore, in short,
the orders passed by the High Court passed below “Note for speaking
to the Minutes” in First Appeal No.466 of 2010 and the order passed
in Civil Application No.1698 of 2015 in First Appeal No.466 of 2010
are impugned in the present appeals. Therefore, the short question
posed for the consideration of this Court is whether such an
order/orders could have been passed by the High Court below the
“Note for speaking to the Minutes”?
12. Having heard the learned counsel for the respective parties and
considering the impugned order passed by the High Court passed
below the “Note for speaking to the Minutes”, we are of the opinion
that while passing such order below the “Note for speaking to the
Minutes”, the High Court has travelled beyond its jurisdiction in
regard to the scope of deciding a “Note for speaking to the Minutes”. A
“Note for speaking to Minutes” is required to be entertained only for
the limited purpose of correcting a typographical error or an error
through oversight, which may have crept in while transcribing the
original order. Once, the judgment/order is pronounced and if any
party to the same wants any rectification of any typographical error
and any clerical mistake regarding the date or number, such a party
may apply to the concerned Court for correcting such an error in the
29
judgment/order. However, a “Note for speaking to the Minutes”
cannot be considered at par with a review application or in a given
case, with an application for clarification/modification of an order. A
“Note for speaking to the Minutes” can never be considered to be an
application of such a nature. While passing the impugned order below
the “Note for speaking to the Minutes”, the High Court has virtually
modified its original order passed in First Appeal. While passing the
impugned order, the High Court has given further directions as if the
High Court is passing the order on an application for
clarification/modification. Therefore, such a course was not open to
the High Court while deciding a “Note for speaking to the Minutes”.
Since, the High Court has travelled beyond its jurisdiction in regard to
the scope of deciding a “Note for speaking to the Minutes”, we have no
option but to set aside the impugned order passed below the “Note for
speaking to the Minutes”.
12.1 Even otherwise, the impugned orders are not sustainable at law.
It is required to be noted that it was the Appeal before the High Court,
preferred by the Appellants herein–original Defendants, challenging
the judgment and decree passed by the learned Trial Court, by which
the learned Trial Court specifically passed a decree directing the only
Defendant No.1 to convey the title and execute document in favour of
30
the Society in respect of Suit Building and land to the extent of Suit
Building. The Suit Building, from the material on record, it is
emerging that the area of the building was 1009.70 sq. meters.
Against that judgment and decree, original Private Defendants
Appellants were before the High Court. The Trial Court never passed
any decree directing the Appellants to execute the Deed of Conveyance
to the extent of 2700 sq. meters of land. Therefore, while dismissing
the appeal, even otherwise, the High Court could not have passed any
further order beyond the judgment and decree passed by the Trial
Court and that too in absence of any cross objection and/or cross
appeal preferred by the original Plaintiffs. In an Appeal preferred by
the original Defendants, as observed above, at the most, the High
Court can dismiss the Appeal and confirm the judgment and decree.
However, the Appellantsoriginal Defendants cannot be put in a worse
condition than beyond the judgment and decree passed by learned
Trial Court which was appealed before the First Appellant Court and
that too in the absence of any crossappeal or cross objection by the
original Plaintiffs. Therefore also, the impugned orders passed by the
High Court which, as such, will go beyond the judgment and decree
passed by the learned Trial Court are not sustainable, more
particularly, in absence of any crossappeal and/or order the cross
31
objection by the original Plaintiffs. Once the High Court has
dismissed the Appeal preferred by the Appellantsoriginal Defendants,
in that case, in an appeal preferred by the original Defendant, the
High Court could not have passed any further order beyond the
judgment and decree passed by the learned Trial Court appealed.
Thus, by passing the impugned order, it can be said that the High
Court has passed order beyond the scope and ambit of the Appeal
before it and has exceeded in its jurisdiction not vested in it.
12.2 Even otherwise, it is not appreciable how the High Court has
arrived at the figure of 2700 sq. meters. It appears from the material
on record that it was never the case on behalf of the original Plaintiffs
that the original Defendant No.1 shall execute the Deed of Conveyance
of the land to the extent of 2700 sq. meters. Even considering the
map sanctioned by the Corporation and even considering the reply
filed by the Corporation before this Court, it appears that the total plot
area of CTS No. 97/A5/2 on which the building A1 was constructed,
was 2593.70 sq. meters, out of which there was a construction of
building A1 on the land admeasuring 1009.70 sq. meters. Therefore
also, the impugned order passed by the High Court directing the
Appellants hereinoriginal Defendant No.1 to execute the Deed of
Conveyance in respect of the land to the extent of 2700 sq. meters is
32
not sustainable.
12.3 Even otherwise, it is required to be noted that in the Plaint/ Suit
before the Trial Court it was specifically averred by the Plaintiffs that:
i) Building occupies by the Plaintiffs are consisting of ground
plus four storeys and the total builtup area is 1205 sq. meters;
ii) That under the provisions of law, the Plaintiffs and/or the
Society to be formed by the flat purchasers are entitled to an area
of land corresponding to the builtup area of the building so
constructed on such land utilizing the FSI permissible at the
relevant time;
iii) The Plaintiffs are entitled to a minimum plot are of around
1205 sq. yards.
It cannot be disputed that the building A1 was constructed on
the land admeasuring 1205 sq. yards1009.70 sq. meters and
that was the total builtup area of building A1 which was
occupied by the Plaintiffs.
The Plaintiffs, therefore, cannot go beyond the averments and
pleadings in the Plaint. Therefore, the Plaintiffs could not have
even asked for the execution of the Deed of Conveyance in
respect of the land beyond the builtup area of building A1, more
particularly, when the Allottees/original Plaintiffs can claim the
33
rights with respect the building A1 only.
12.4 The learned counsel appearing on behalf of the original Plaintiffs
have heavily relied upon the crossexamination of DW1 Omprakash
Didwanja and have submitted that the Defendants’ witness specifically
admitted that the Suit building has been constructed on the plot of
the land admeasuring 2573.31 sq. meters and, therefore, the Plaintiffs
were entitled to the Deed of Conveyance with respect to the entire plot
of land 2573.31 sq. meters. The same has no substance. There is a
difference and distinction between the builtup area of building and
the plot area. As observed above, the Plaintiff specifically averred and
pleaded in paragraphs 18 that they are entitled to an area of land
corresponding to the builtup area of the building so constructed on
such land. Therefore also, the High Court is not justified in directing
Defendant No.1 to execute the Deed of Conveyance with respect to the
land admeasuring to the extent of 2700 sq.meters.
12.5 In view of the above and for the reasons stated above, the
impugned orders passed by the High Court dated 23.12.14 passed
below “Note for speaking to the Minutes”, in First Appeal No.466/2010
and the order dated 04.07.15 passed in Civil Application
No.1698/2015 in First Appeal No.466/2010 deserve to be quashed
34
and set aside and the Civil Appeals arising out of the said orders are
required to be allowed.
13. So far as the Appeals arising out of the impugned judgment and
order passed by the High Court dated 10.09.2015 in WP©
No.992/2015 is concerned, it appears that the Divisional Registrar of
the Cooperative Societies has passed an order of deemed Conveyance
of the area admeasuring 2593.70 sq. meters, which was the subject
matter in the Writ Petition before the High Court and the High Court
by impugned judgment and order has dismissed the Writ Petition
confirming the order passed by the Divisional Registrar granting
deemed Conveyance of the area admeasuring 2593.70 sq.meters.
13.1 Having heard the learned counsel for the respective parties and
considering the order passed by the Divisional Registrar of deemed
Conveyance of the area admeasuring 2593.70 sq.meters, it appears
that the Divisional Registrar considered the orders passed by the High
Court below “Note for speaking to the Minutes”’ in the First Appeal as
well as solely relying upon the property card. However, as observed
hereinabove, while deciding the Appeals arising out of the order
passed by the High Court below “Note for speaking to the Minutes”,
the original PlaintiffSociety shall not be entitled to the Deed of
35
Conveyance to the extent of area admeasuring 2700 sq.meters and/or
even 2593.70 sq.meters and they shall be entitled to the Deed of
Conveyance of the area admeasuring 1009.70 sq.meters which was
the built up area of building A1 and, therefore, for the reasons stated
hereinabove, the impugned judgment and order passed by the High
Court dated 10.09.2015 in Writ Petition © No.992/2015 confirming
the order passed by the Divisional Registrar Cooperative Societies of
deemed Conveyance of the area admeasuring 2593.70 sq.meters also
deserves to be quashed and set aside and the Appeals arising out of
the impugned orders passed by the High Court in W.P. No. 992 of
2015 deserves to be allowed.
14. In view of the above and for the reasons stated above, all these
appeals succeed and are hereby allowed. The impugned orders dated
23.12.2014 passed by the High Court of Bombay passed below “Note
for speaking to the Minutes” in First Appeal No.466/2010 as well as
the impugned order dated 04.07.2015 passed by the High Court of
Bombay in Civil Application No.1698 of 2015 in First Appeal
No.466/2010 are hereby quashed and set aside.
15. The impugned judgment and order passed by the High Court of
Bombay dated 10.04.2015 in Writ Petition © No.992/2015 confirming
36
the order passed by the Divisional Registrar of the Cooperative
Societies of deemed Conveyance of the area admeasuring 2593.70
sq.meters is also hereby quashed and set aside and consequently the
order passed by the Divisional Registrar of Deemed Conveyance of the
area admeasuring 2593.70 sq.meters is hereby quashed and set aside
and it is directed and the same is modified to the extent of granting
deemed Conveyance of the area admeasuring 1009.70 sq.meters only.
The Appeals stand disposed of accordingly.
16. In the facts and circumstances of the cases, there will be no
order as to costs. In view of the disposal of the Appeals, the
Contempt Petitions as well as the interlocutory application pending, if
any, shall also stand disposed of.
…….………………………..J.
(A.K. SIKRI)
……………………………..J.
(ASHOK BHUSHAN)
……………………………..J.
(M. R. SHAH)
New Delhi,
December 14, 2018