ASHWIN ASHARA AND ANR.versusTHE MUNICIPAL CORPORATION OF GREATER MUMBAI AND 5 ORS.

                                                                      WP-1251-2024 Judgment.GA.doc


          Digitally
          signed by
GAURI     GAURI AMIT
          GAEKWAD
AMIT      Date:
GAEKWAD   2026.10.09                                                               Gauri Gaekwad
          15:36:23
          +0530



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION
                                     WRIT PETITION NO. 1251 OF 2024


                       1.   ASHWIN ASHARA,
                            An adult Indian inhabitant, Member of
                            Respondent No.5 in Respect of Flat
                            No.B-19,    1st   Floor,    Bhanujyoti
                            Co-operative Housing Society Limited,
                            Kisanlal Nivetia Road, Ranisati Marg,
                            Malad (East), Mumbai – 400 097.

                       2.   DAKSHA ASHWIN ASHARA,
                            An adult Indian inhabitant, Member of
                            Respondent No.5 in Respect of Flat
                            No.B-20,    1st   Floor,    Bhanujyoti
                            Co-operative Housing Society Limited,
                            Kisanlal Nivetia Road, Ranisati Marg,
                            Malad (East), Mumbai – 400 097.               …PETITIONERS

                             ~ versus ~

                       1.   THE MUNICIPAL CORPORATION
                            OF GREATER MUMBAI,
                            A Corporation Body having office at
                            Mahapalika Marg, Mumbai – 400 001.

                       2.   ASST.                  MUNICIPAL
                            COMMISSIONER (WARD OFFICER)
                            P NORTH WARD,
                            Having its office at Liberty Garden
                            Mamletdarwadi Marg, Malad (West),
                            Mumbai – 400 064.

                       3.   ASST. ENGINEER (BUILDING &
                            PROPOSAL), ‘P’ WARD



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     Having its office at W.S./II, 2nd Floor,
     “C” Wing, Municipal Office Bldg.,
     90 Road, Nr. Sanskruti Complex,
     Thakur Complex, Kandivali (East),
     Mumbai – 400 101.

4.   NAMO REALTY VENTURES LLP,
     A Limited Liability Partnership
     Company incorporated under the
     Provisions of Limited Liability
     Partnership Act 2008, having its
     Address at 1A & 2, Panchvati, nearby
     Anandavan Ashram, S.V. Road,
     Kandivali (West), Mumbai – 400 067.

5.   BHANUJYOTI          CO-OPERATIVE
     HOUSING SOCIETY LIMITED,
     A Society Registered under the
     Provision   of    the   Maharashtra
     Co-operative Societies Act 1960, Its
     having address at Kisanlal Nivetia
     Road, Ranisati Marg, Malad (East),
     Mumbai – 400 097.

6.   M/S. KABRA & ASSOCIATES,
     Having office at 10th Floor, Kamla
     Hub, N.S. Road No.1, J.V.P.D. Scheme,
     Vile Parle (West), Mumbai – 400 049.          …RESPONDENTS


APPEARANCE

For the Petitioner               Mr.    Rajesh     Kachare   a/w.
                                 Mr. Vincent D’silva and Mr. Sujit
                                 Mane.

For Respondent Nos.1 to 3        Mr. Arvind T.             Rathod         i/b.
                                 Ms. Komal Punjabi.

For Respondent No.4              Mr.    Amanjhot     Anand     a/w.
                                 Mr. Vasim Shaikh i/b. Pravin Mehta


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                               and Mithi Co.

For Respondent No.5            Ms. Vaishali Sanghvi


                        CORAM : SUMAN SHYAM &
                                GAUTAM A. ANKHAD, JJ.

                   RESERVED ON : 5TH OCTOBER 2026.

             PRONOUNCED ON : 9TH OCTOBER 2026.

JUDGMENT (Per Gautam Ankhad, J):-

1.    The Petitioners are husband and wife and were owners of Flat

Nos.B-19 and B-20 on the 1st Floor of the erstwhile building of

Respondent No.5-Society prior to redevelopment. By the present

Petition, the Petitioners seek a Writ of Certiorari, against

Respondent No.4-Developer, for an additional area allegedly

promised to them in the redeveloped building, together with

compensation/damages for the alleged failure to provide such

additional area.


2.    The facts in a nutshell are that a registered Redevelopment

Agreement dated 16th September, 2021 was executed between

Respondent No.4-Developer, Respondent No.5-Society and 46 out

of 48 of its members for the redevelopment of the dilapidated

building. The Petitioners were the only two members who opposed



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the redevelopment. Since the Petitioners were not vacating their

premises, Respondent No.4 initiated proceedings under Section 9 of

the Arbitration and Conciliation Act, 19961, seeking a direction

against the Petitioners to vacate and hand over possession of their

respective units to facilitate redevelopment. This relief was granted

by a learned Single Judge on 21st March, 2022, and the Petitioners

were directed to hand over the units for redevelopment. The order

also records the conduct of the Petitioners during those proceedings,

including their refusal to accept service. The Petitioners thereafter

preferred an Appeal2 under Section 37 of the Act before the

Division Bench, which came to be dismissed as withdrawn on

21st April, 2022. The redevelopment was completed on 28 th October,

2024 and an Occupation Certificate has been issued in respect of

the new building. All members of Respondent No.5-Society, except

the Petitioners, have taken possession of their respective new units.


3.    Mr. Kachare, learned counsel for the Petitioners, submits that

there has been large-scale fraud and misappropriation of funds in

the redevelopment. Respondent Nos.4 and 5 have failed to furnish

relevant documents, thereby prejudicing the Petitioners’ rights to

1. Arbitration Petition No.30 of 2022
2. Appeal (Stamp) No.12066 of 2022



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their property. According to the Petitioners, although the

redevelopment is now complete, they have learnt from other

members of the Society that the carpet area of the newly

constructed flats is less than the area offered by Respondent No.4

under the Redevelopment Agreement. The promised amenities and

car parking spaces have not been provided in accordance with the

agreed terms. The Petitioners therefore seek additional area and

compensation from Respondent No.4. Since their objections/claims

have not been considered by any of the Respondents, the Petitioners

have filed this Petition. In support of the above submissions,

Mr. Kachare relies upon the judgment of the Hon’ble Supreme

Court in Hari Krishna Mandir Trust v/s. State of Maharashtra and

Ors.3 and Rajani Dattaram Tanawade and Ors. v/s. Municipal

Corporation of Greater Mumbai and Ors.4.


4.    On the other hand, Mr. Anand, learned counsel for

Respondent No.4, submits that the Petition is misconceived and

seeks to convert a civil dispute arising out of a Redevelopment

Agreement into a proceedings under Article 226 of the Constitution

of India. The Petitioners’ grievance concerning additional area,

3. (2020) 9 SCC 356
4. 2023 SCC OnLine Bom 2313



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amenities, parking, rent and compensation are all matters

concerning the redevelopment. The Petitioners have neither

challenged the Redevelopment Agreement nor any of the

resolutions passed by the General Body of the Society. Thus, the

mere presence of a public authority as a party does not, by itself,

transform a private dispute into a public law dispute. In any case,

there is no allegation of breach of any statutory provision or

statutory duty by Respondent Nos.1 to 3 and, consequently, no

public law element is involved in this case. The Respondent No.4

has also issued cheques towards transit rent, which the Petitioners

have not encashed. It is therefore submitted that the claims for

compensation and rent/charges are without merit and cannot be

adjudicated by a Writ Court. Reliance is placed on the judgments of

the Hon’ble Supreme Court in Praga Tools Corporation v/s. C.A.

Imanual and Ors.5 for dismissal of the Petition.


5.    Mr. Rathod and Ms. Sanghvi, learned counsels for

Respondent Nos.1 to 3 and Respondent No.5 respectively, adopt the

submissions advanced on behalf of Respondent No.4 and also seek

dismissal of the Petition.


5. (1969) 1 SCC 585



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6.    We have considered the record and heard the learned counsel

for the parties. In our view, the present Petition seeking a Writ of

Certiorari is not maintainable. Assuming that the Petitioners seek

“any other appropriate Writ”, even then this Petition is not

maintainable. The substance of the reliefs sought by the Petitioners

is additional area and a claim for compensation/damages against

Respondent     No.4-Developer     in    the     course    of    a    private

redevelopment undertaken by Respondent No.5-Society. In these

circumstances, a Writ of Mandamus would not lie against a private

person, who is not discharging any public duty. The Writ

jurisdiction cannot be invoked as a substitute for an ordinary civil

remedy for adjudication of private claims relating to additional area,

parking, amenities etc. The fact that Respondent Nos.1 to 3 are

municipal authorities does not alter this position. Their mere

impleadment in this Petition does not create a public law element,

more so, since the relief prayed for is exclusively against the

Developer-Respondent No.4. In fact it is not even the Petitioners’

case that Respondent Nos.1 to 3 have acted in violation of any

statutory provision. On this ground alone, this Petition cannot be

entertained.




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7.       Mr. Anand’s reliance on the judgment of the Hon’ble

Supreme Court in Praga Tools Corporation (supra) is well placed,

wherein the Hon’ble Court has held that where the dispute is rooted

in a private contract and no element of public law is involved, the

party must pursue its ordinary civil remedies and cannot be

permitted to invoke the Writ jurisdiction as a substitute for a civil

claim.

8.       The judgments relied upon by the learned counsel for the

Petitioners do not apply in the present case as there is neither failure

to perform statutory duty by State authorities nor is there any public

law element involved. As regards the judgment of the Hon’ble

Supreme Court in Hari Krishna Mandir Trust (supra), the decision

reiterates that the jurisdiction under Article 226 is wide and that

disputed questions of fact do not, by themselves, constitute an

absolute bar to the exercise of Writ jurisdiction. However, the

existence of jurisdiction does not mean that it must be exercised in

every case. The Writ Court is required to consider the nature of the

right asserted, the duty sought to be enforced, the character of the

dispute and the availability of an efficacious remedy.




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          In the present case, the Petitioners effectively seek

damages/compensation from a private Developer. Hence the said

judgment has no application in the facts of the present case.


9.        The reliance placed by Mr. Kachare on Rajani Dattaram

Tanawade (supra), in support of the submission regarding 35%

fungible FSI, also does not advance the Petitioners’ case. The facts

therein are distinguishable as the Developer therein had sought to

appropriate the fungible FSI towards common areas. In this case,

the Petitioners have not challenged either the Redevelopment

Agreement or the resolutions of the General Body pursuant to

which the redevelopment was undertaken. The Agreement has been

acted upon, the construction has been completed, the Occupation

Certificate has been issued and the other members have taken

possession.


10.       We also note that the Petitioners have admitted in paragraph

24 and at ground (e) of the Petition, that they had suggested some

other builders for the purpose of redevelopment, but Respondent

No.5 failed to consider the same. No explanation is forthcoming as

to why the Petitioners did not pursue civil remedies to agitate their

rights.



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11.   From the pleadings in the Petition and the arguments

advanced before us, we find that the dispute is of private nature and

cannot be agitated in a Writ Petition. Hence, we find no merit and

Writ Petition is dismissed.


12.   Rule is discharged.


13.   There shall be no order as to costs.




(GAUTAM A. ANKHAD, J.)                             (SUMAN SHYAM, J.)




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