1. The above Notice of Motion has been filed by the Respondent No. 17 - Asad Naeemuddin Moulvi for vacating/modifying the order dated 24/10/2016 passed in the above PIL, and permitting the Applicant to sell, transfer and deal with his office premises No. 112 situated in the building Summit Business Bay.
2. The above Notice of Motion had appeared on an earlier occasion on which day we were informed by the learned Amicus Curaie Shri Surel Shah that in spite of a requisition being served upon the Applicant to furnish the details of the leave and license agreement entered into between the Applicant and the prospective purchaser, no such details are forthcoming.
3. The learned counsel appearing for the Applicant Mrs. Deepa Chavan on the basis of the instructions she had at the relevant time informed us that the leave and license agreement was in respect of some other premises than premises in respect of which the above Notice of Motion has been filed. The learned counsel for the Applicant submitted that she would furnish the details to the learned Amicus Curaie in the interregnum period after the Notice of Motion was adjourned for hearing. The Notice of Motion was accordingly adjourned by us for today and it was expected of the Applicant that an affidavit would be filed giving details of the leave and license agreement as also the premises in question which were the subject matter of the said leave and license agreement.
4. Today the learned counsel for the Applicant Mrs. Deepa Chavan fairly stated that she was wrongly instructed on the last occasion that the premises which are the subject matter of the leave and license agreement are different premises than the one in respect of which the above Notice of Motion has been filed and in fact the premises are the same premises in respect of which the reliefs have been sought by way of the above Notice of Motion. She expressed regret and remorse for the statement made by her on the last occasion on instructions.
5. Be that as it may, it is required to be noted that by the order dated 24/10/2016 the interim relief was granted in the above Petition thereby creation of “third party interest” in respect of the the sale component of the slum scheme which in the instant case is undisputedly the Summit Business Bay was granted. Passing of the said interim order was disseminated to the members of the society who are arrayed as the Respondent Nos. 7 to 46 to the above Petition by the society in question in November 2016 which fact is mentioned in the affidavit in support filed by the Secretary of the society one Yograj Chauhan in Chamber Summons No. 87 of 2017 which was filed by the Society for its impleadment and for vacating the interim relief dated 24/10/2016. Hence the aforesaid fact indicates that the members of the society were aware of the interim order dated 24/10/2016 at least in November 2016. There can therefore be no escape from the said fact. However, notwithstanding the same, the Applicant i.e. the Respondent No. 17 to the above Petition - Asad Moulvi entered into a leave and license agreement dated 24/05/2017 for a period of 60 months and the deposit taken under the said leave and license agreement is of Rs. Seventy Five lakhs. It is required to be borne in mind that the premises in question are admeasuring 725 sq.ft. Prima facie therefore having regard to the nature of the transaction, the leave and license agreement cannot be taken at its face value.
6. The entering into the leave and license agreement is sought to be justified on behalf of the Applicant by the learned counsel Mrs. Deepa Chavan by contending that the same does not amount to creation of third party interest. We are not in a position to accept the said contention. There is a thin line separating between the third party rights and third party interest being created. We would not permit the learned counsel for the Applicant to indulge into semantics so as to justify the entering into the leave and license agreement by the Applicant. If the Applicant had any bonafides, it was necessary for the Applicant to seek the permission of this Court and thereafter enter into the leave and license agreement, if this Court had granted permission.
7. Hence prima facie we are of the view that entering into the leave and license agreement is in breach and violation of the interim order dated 24/10/2016 passed by the Division Bench of this Court. We therefore issue notice to the Applicant i.e. the Respondent No. 17 to the Petition - Asad Naeemuddin Moulvi to show cause as to why action for contempt should not be taken against him under Section 2(b) of the Contempt of Courts Act, 1971. The said show cause notice is made returnable on 09/10/2018. Reply affidavit to be filed and served three days prior to the said date.