• Rev. Gordon J. MacRae, sentenced to 33½ to 67 years, has been in the New Hampshire State Prison For Men since 1994 on abuse charges.
• Newly released signed statements in a recent court motion contend that the primary accuser, Thomas Grover, made up the accusations to extract money from the Church.
• Grover’s former stepson: “On several occasions, Grover told me that he had never been molested by MacRae.”
• Grover’s former wife: Grover is a “compulsive liar” and a “manipulator” who “can tell a lie and stick to it ’til its end.” Most notably, Grover “never stated one word of abuse by [MacRae].”
• Former friend of Grover and accuser who recanted: I knew “full well that it was [all] bogus … I did not want to lie or make up stories.”
• Former drug and alcohol counselor for Grover: Accuser Grover claimed abuse “by so many disparate people that his credibility in the [counseling] program was seriously in doubt”; Grover seemed like “he was going for some kind of sexual abuse victim world record.” Plus, aggressive New Hampshire detectives applied “coercion, intimidation, veiled and more forward threats” and “threats of arrest” upon the counselor to try to extract a false incrimination of MacRae from her.
• Courtroom spectators during Fr. MacRae’s 1994 trial: A therapist hired by Grover’s contingency lawyer used hand signals from the back of the courtroom to coach Grover on the witness stand.
• Veteran FBI detective, after three-year private investigation: ”I discovered no evidence of MacRae having committed the crimes charged, or any other crimes.”
• Plus: A lengthy criminal rap sheet of accuser Grover reveals numerous arrests, before and after trial: multiple forgeries, multiple thefts, multiple burglaries, and assault on a police officer (after breaking his future ex-wife’s nose). The jury at the trial never heard any of this.
• and more.

Eye-popping new evidence is shining a new light on one of the most disputed cases of the entire Catholic Church abuse narrative.

Rev. Gordon J. MacRae and his attorneys have filed a motion for a new trial in New Hampshire based on astonishing new declarations.

The motion for a new trial contains multiple, uncollaborated signed statements from a number of people who were close to accuser Thomas Grover at the time Fr. MacRae’s 1994 criminal trial, and these statements indicate that Grover perpetrated a massive fraud in falsely accusing the cleric of abuse.

1. The motion contains an astonishing 2008 signed statement from the former stepson of accuser Grover, who was in the company of Grover for a period of years before, during, andafter Fr. MacRae’s 1994 criminal trial:

“[O]ver a number of months and years, Thomas Grover discussed the sex abuse allegations of [Father] Gordon MacRae with me. Grover often stated to me that he was going to set MacRae and the church up to gain money for sexual abuse. Grover would laugh and joke about this scheme …

“On several occasions Grover told me that he had never been molested by MacRae.

“Grover, on several occasions, called his civil case attorneys for money or cash advances on his expected cash award and Grover told me that his attorneys directed him to go for psychiatric and drug therapy to gain jury appeal in his court case.”

[Click here to read this man's signed statement]

 

2. The motion also contains statements from the former wife of accuser Grover. According to this woman, Grover is a “compulsive liar” and a “manipulator,” “who can tell a lie and stick to it ’til its end.”

She also has claimed:

• Grover asked her to marry him in 1994 “because it would look better and, more importantly, he needed the security of a wife for a trial.”
• In the entire time the pair were together, “never once did [Grover] say he was abused by MacRae.”
• Grover claimed that his monetary civil suit was to pay for his needed therapy, but once he received his sizable settlement ($195,000 in 1997), he never returned to therapy again.

[Click here to see relevant court documents related to Grover's former wife.]

 

3. Also included in the file is a 2008 signed statement from a former friend of Grover whorecanted his bogus claims of abuse by MacRae. The statement shockingly suggests that thelead detective in Fr. Gordon’s New Hampshire case, James McLaughlin, attempted tomanipulate the young man into making a false accusation:

“I was aware at the time of [Father] Gordon’s trial knowing full well that it was bogus and having heard of the lawsuits and money involved, also the reputations of those who were making accusations.

“I agreed to meet with the [detectives] after being told I would be reimbursed for my time/gas money …  [Detective] McLaughlin had me believing that all I had to do is make up a story about Gordon and I could receive a large sum of money as others already had. McLaughlin reminded me of the young child and girlfriend I had and referenced that life could be easier for us with a large amount of money.

“I knew of the Grovers’ reputation as well as others involved, many of whom I went to school with. It seemed as though it would be easy money if I would also accuse Gordon of wrongdoing. I left that meeting after being given I believe $50, easy money, like what would come from lawsuits against MacRae.”

Fortunately, after being subpoenaed, the man had a change of feelings. “I did not want to lie or make up stories … Gordon had never done anything wrong towards me,” the man has written.

[Click here to read this man's handwritten statement]

 

4. Then there are the recent declarations from Debra Collett, who is Thomas Grover’s former drug and alcohol counselor.

After spending much time with Grover, Ms. Collett found Grover to be sorely lacking in integrity.

According to Collett, Grover claimed to be molested “by so many disparate people that his credibility in the [counseling] program was seriously in doubt.” It seemed “he was going for some kind of sexual abuse victim world record.”

Most notably, Ms. Collett indicates that she was a victim of intimidating and corruptdetective work.

In the course of trying to nab Fr. MacRae, Detective James McLaughlin and another detective interviewed Collett. They desperately wanted Collett to corroborate Grover’s claims, but she could not give them what they wanted. Collet has said:

“Neither [detective] presented as an investigator looking for what information I had to contribute, but rather presented as each having made up their mind and sought to substantiate their belief in Gordon MacRae’s guilt … I was uncomfortable with [the other detective's] repeated stopping and starting of his tape recorder when he did not agree with my answer to his questions and his repeated statements that he wanted to put [MacRae] where he belonged behind bars … I confronted [the other detective] about his statements and his stopping and starting the recording of my statement, his attitude and his treatment of me which seemed to me to include coercion, intimidation, veiled and more forward threats as well as being disrespectful. At that point and in later dealings, I was overtly threatened concerning my reluctance to continue to subject myself to their tactics, with threats of arrest …

“My overall experience personally in interacting with the detectives was one of being bullied, there being an attitude of verbalized animosity, anger and preconception of guilt regarding Gordon MacRae. They presented as argumentative, manipulative and threatening via use of police power in an attempt to get me to say what they wanted to hear.“

Collett’s statements are indeed disturbing.

[Click here to see relevant court documents about the statements by Debra Collett.]

 

5. Courtroom spectators who were present at Fr. MacRae’s 1994 trial have reported that Grover’s therapist, hired by Grover’s contingency lawyer, used hand signals from the back of the courtroom to coach Grover during his testimony.

“[The therapist] would have direct eye contact with Grover and place her finger on her right cheek just at the eye level and slowly move her finger down her cheek with a distinct sorrowful frown on her face.Grover observed this and began to cry on the stand and wept for a good part of his testimony. This was in stark contrast to Grover’s behavior after his testimony and in the hall outside the court where he was jumping up and down and laughing and joking with some of his supporters.”

[Click here to read the exhibit about what these courtroom spectators witnessed.]

 

6. Unknown to the criminal jury during Fr. Gordon’s trial was that Thomas Grover had a lengthy criminal rap sheet, which included arrests for forgery, thefts, and burglaries.

[Click here to read about accuser Thomas Grover's lengthy rap sheet.]

 

7. These startling new discoveries are largely the result of the thorough work conducted over three years by veteran investigator James M. Abbott. Abbott served in the FBI for over a quarter of a century in numerous capacities. He also worked for years for Suffolk County, New York, and the New York City Police Department.

Mr. Abbott has soberly concluded:

“During the entirety of my three-year investigation of this matter, I discovered no evidence of MacRae having committed the crimes charged, or any other crimes. Indeed, the only thing pointing to any improper behavior by MacRae were Grover’s stories – that were undermined by the people who surrounded him at the time he made his accusations and the trial.”

[Click here to read the complete signed affidavit of James Abbott.]

This alarming body of new evidence should certainly give pause to anyone who may have thought that Fr. MacRae’s guilt was certain.

[Click here to read the entire court motion.]

 

The National Center for Reason and Justice is sponsoring Fr. MacRae’s case, and TheMediaReport.com continues to gather more compelling information about this important episode. Stay tuned for future articles.

 

FILED UNDER: FEATURE ARTICLES TAGGED WITH: CATHOLIC SEX ABUSE, FALSELY ACCUSED PRIESTS,FRAUD, REV. GORDON J. MACRAE

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1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.884 OF 2008

IN

THE MUMBAI CITY CIVIL COURT AT BOMBAY NOTICE OF MOTION NO.95 OF 2007

IN

S.C. SUIT NO.89 OF 2007

Jitendera Santilal Shah

& Ors. ..Appellants (Org.Plaintiff)

Vs.

M/s.Zenal Construction

Pvt. Ltd. ..Respondent

Mr.Anil R. Mishra for the Appellants. Mr. V.Y. Sangalikar for Respondent no.1.

CORAM : S. J. VAZIFDAR, J. DATE OF

RESERVING

THE JUDGMENT : 18TH DECEMBER, 2008 DATE OF

PRONOUNCING

THE JUDGMENT : 21ST JANUARY, 2009

ORAL JUDGMENT :

This is the Plaintiff’s appeal against the order of the

learned Judge of the Mumbai City Civil Court, dismissing 2

their Notice of Motion. The Appellants are the Plaintiffs and

the Respondent is the Defendant.

2. The Appellants filed the suit for a declaration that

the Defendant is not entitled to amend the plans sanctioned

on 5.12.2002 regarding the development of the suit property;

for a declaration that the amended plans are not binding upon

them; for an order directing the Defendant to provide the

building occupation certificate in respect of the building in

which their flats are situated and to execute a conveyance in

favour of the Appellants society. The Appellants have also

sought certain reliefs regarding construction and/or repair of

certain facilities and disclosure of amounts collected from new

flat purchasers and a cellular operator.

By prayer (l) the Appellants have sought a

permanent injunction restraining the Defendants from carrying

out any construction work on the suit property contrary to the

plan sanctioned on 5.12.2002 and/or putting any construction

beyond Wings “A” and “B” of the suit property.

By prayer (m) the Appellants have sought an order 3

restraining the Defendants from parking their vehicles in the

compound of the suit property.

The Appellants took out a Notice of Motion seeking

interim reliefs in terms of the above reliefs. The learned

Judge by the impugned order, dismissed the Notice of

Motion.

3. An agreement dated 12.2.2001 was entered into

between the Defendant as the developer and the owner of the

property one Y.J. Dave. The owner assigned and alloted the

development rights in respect of the suit property which

consisted of land together with a building standing thereon

known as “Ambika Bhavan”.

4. The twelve Appellants are members of the proposed

society. They, alongwith twenty three others were tenants in

respect of the premises in their occupation in a building which

existed upon the suit property.

Agreements were entered into between the

Defendant and twenty tenants including the Appellants. The

remaining tenants apparently settled with the Defendants and 4

thereupon left the suit property.

Identical agreements were entered into between

each of the Appellants and the Defendant. A sample of one

such agreement dated 6.8.2001 entered into between

Appellant no.3 and the Defendant was relied upon. The

original owner was a confirming party to these agreements.

5. On 5.12.2006, the Bombay Municipal Corporation

sanctioned the plans for the redevelopment of the suit plot.

Apparently, the plan was sanctioned earlier on 17.8.2002 and

was amended on 5.12.2002. In any event, that the

construction was required to be carried out as per the plan

sanctioned on 5.12.2002 is not in dispute. The

commencement certificate was issued on 21.3.2003.

As per the plan sanctioned on 5.12.2002, there were

open spaces within the said plot on all sides of the building

proposed to be constructed.

As per this plan, the Defendant constructed twenty

flats, ten shops and a basement and handed over possession

thereof to the respective Appellants on 1.4.2005. 5

6. The Defendant subsequently amalgamated the suit

plot with the adjoining plot and sought and obtained sanction

from the concerned authorities modifying the plans.

By an agreement dated 21.3.2003 the Defendant

acquired from one Sadashiv Dave, development rights in

respect of the adjoining plot. The agreement was not

produced before me. There is no dispute however that the

Defendant is entitled to develop the adjoining plot and I

therefore proceed on that basis.

The Defendant claims to have entered into

independent agreements with the tenants of the adjoining

plots as well and to have demolished the structure thereon.

The Defendant thereafter amalgamated the suit property with

the adjoining property and sought and obtained the sanction

from the Bombay Municipal Corporation for the amended

plans submitted by it. The Defendant has stated that after

the original plan was amended on 5.12.2002 there was a

further amendment sanctioned on 9.9.2004 and thereafter

again on 2.5.2007 and that as per the sanctioned plan dated 6

2.5.2007 the Defendant is to construct two further wings on

the adjoining property.

What is important to note is that admittedly a part of

this construction will be upon the suit property and will touch,

physically attach itself to the Plaintiffs’ building on one side

substantially.

7. The agreement dated 6.8.2001 was registered by

the Plaintiffs alone on 8.11.2005. The commencement

certificate which is one of the annexures at the time of

registration refers only to the original two wings and not the

additional wing, as per the amended plan dated 2.5.2007.

The photographs also indicate the same. It is also important

to note that as a result of the modified plan the entire open

space on one side of the suit property would be completely

taken up by a part of the new construction.

8. Mr. Mishra, the learned counsel appearing on behalf

of the Appellants submitted that in view of Section 7 of The

Maharashtra Ownership Flats (Regulation of the promotion of

construction, sale, management and transfer) Act, 1963, the 7

Respondent was not entitled to amalgamate the adjoining plot

and the suit plots and on the basis thereof, to amend the

plans earlier sanctioned on 5.12.2002. He further submitted

that the same materially affects the Appellants flats and the

structure viz. the building, in which they are situated.

Sections 7 and 7A of The Maharashtra Ownership

Flats (Regulation of the promotion of construction, sale,

management and transfer) Act, 1963 (MOFA) read as under :-

“7. (1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make-

(i) any alteration in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;

(ii) any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building.

(2) Subject to sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any 8

defect in the building or material used, or if any unauthorised change in the construction of brought to the notice of the promoter within a period of [three years] from the date of handing over possession, it shall wherever possible to be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change. Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the

construction, [or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable

compensation payable in respect of any such defect or change which cannot be or is not, rectified by the promoter,] the matter shall, on payment of such fee as may be prescribed, [and within a period of three years from the date of handing over possession, be referred for decision-

(i) in an urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and

Regulation) Act, 1976, to such

competent authority authorised by the State Government under clause (d) of section 2 of that Act, and

(ii) in any other area, to such Deputy Chief Engineer, or to such other

Officer of the rank equivalent to that of Superintending Engineer in the 9

Maharashtra Service of Engineers, of a Board established under

section 18 of the Maharashtra

Housing and Area Development

Act, 1976.

as the State Government may by general or special order, specify in this behalf, such competent authority, Deputy Chief Engineer or, as the case may be, the other officer of a Board shall, after inquiry record his decision, which shall be final.]

7A. For the removal of doubt, it is hereby declared that clause (ii) of sub- section (1) of section 7 having been retrospectively substituted by clause (a) of section 6 of the Maharashtra

Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment) Act, 1986 (hereinafter in this section referred to as “the Amendment Act”), it shall be deemed to be effective as if the said clause (ii) as so substituted had been in force at all material times; and the expression “or construct any additional structures” in clause (ii) of sub-section (1) of section 7 as it existed before the commencement of the Amendment Act and the expression “constructed and completed in accordance with the plans and specifications aforesaid” and “any unauthorised change in the construction “in sub-section (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgment, decree or order of any Court, 10

be deemed never to apply or to have applied in respect of the construction of any other additional building or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force.]”

9. It is not necessary for me to deal with the larger

question raised by Mr. Mishra viz. that the plan sanctioned on

5.12.2002 could not be amended without the consent of the

Appellants as the additional construction as per the amended

plans was not a part of the scheme or layout disclosed by the

Defendant at the time of entering into the agreement with the

Appellants. It would have been necessary to consider this

submission had the new construction been physically

separate from the existing construction.

10. For the purpose of this Appeal from Order, it is

sufficient to consider the Appellants entitlement to interim

reliefs on the basis of the fact that the proposed

new/additional construction by the Defendant admittedly

touches the building in which the Appellants flats are situated 11

as stated earlier.

11. In M/s. Jayantilal Investments v. Madhuvihar Co-

operative Housing Society & Ors., (2007) 9 SCC 220, the

Supreme Court observed in paragraph 16 that the question

which needs to be decided is whether one building with

several wings would fall under the amended Section 7(1)(ii).

The question before me was thus expressly kept open.

Paragraph 20 of the judgment reads as under :-

“20. In the light of what is stated above, the question which needs to be examined in the present case is whether this case falls within the ambit of amended Section 7(1)(ii) or whether it falls within the ambit of Section 7-A of MOFA. As stated above, under Section 7(1) after the layout plans and specifications of the building, as approved by the competent authority, are disclosed to the flat takers, the promoter shall not make any other alterations or additions in the structure of the building without the prior consent of the flat takers. This is where the problem lies. In the impugned judgment, the High Court has failed to examine the question as to whether the project undertaken in 1985 by the appellant herein was in respect of construction of additional buildings or whether the project in the layout plan of 1985 consisted of one building with 7 wings. The promoter has kept the

requisite percentage of land open as recreation ground/open space. Relocation of the tennis court cannot be faulted. The question which the High Court should have examined is: Whether the project in question consists of 7 independent 12

buildings or whether it is one building with 7 wings? The answer to the above

question will decide the applicability or non-applicability of Section 7(1)(ii) of MOFA, as amended. The answer to the above question will decide whether the time to execute the conveyance has arrived or not. This will also require explanation from the competent authority, namely, Executive Engineer, ‘R’ South Ward, Kandivali, Mumbai-400067 (Respondent 8 herein). In the dates and events submitted by the appellant promoter, there is a reference to the permission granted by ULC Authorities dated 16-11-1984 which states that the owner/developer shall construct a building with 7 wings. One needs to examine the application made by the promoter when he submitted the layout plan in 1985. If it is the building with 7 wings intended to be constructed in terms of the layout plan then the High Court is also required to consider the effect of the judgment in Ravindra Mutneja v. Bhavan Corpn. in which the learned Single Judge has held that if a building is put up as a wing of an existing building, it cannot be constructed without the prior permission of the flat takers. In that connection, the High Court shall also consider permission dated 16- 11-1984 under Section 21(1) of the ULC Act, application made to the competent authority when initial layout plan was sanctioned, applications for amendments to layout plans made from time to time and also agreements between promoter and flat takers.” (emphasis supplied)

12(A). It is important to consider the judgment of this Court

in Ravindra Mutenja & Ors. v. Bhavan Corporation & Ors.,

2003 (5) Bombay Cases Reporter, 695, which considered a

similar situation. The learned Judge observed that from the

photographs placed on record it was clear that the two 13

buildings were touching each other. The Respondents

contended that despite the same, the buildings were

independent of each other. They contended that the

construction challenged therein constituted a new building.

The trial Court there held prima-facie, that it was an extension

of the Plaintiffs building. What is important to note is that

ultimately, in paragraph 12, the learned Judge came to the

conclusion that :-

“Factually, on the facts of the case as on record the two buildings are touching each other.”

Having come to this conclusion on facts, in

paragraph 14, the learned Judge held :-

“14………………………………………………. …………………………………………………… The law may be explained thus. An owner of the land or developer

considering the provisions of the Maharashtra Regional and Town

Planning Act, 1966 and development regulations framed thereunder, if a scheme or layout plan has been

approved, whether the building is constructed or not then the owner developer inspite of MOFA can carry out development of such structure or building. It may be also possible to 14

hold that with a development

permission under development regulations if obtained, the owner/developer can develop but as long as the permission was obtained and could be legally obtained if under the permission granted for construction the society had to be registered within a time frame and the land had to convey to the society under the agreement within a time frame and if not, within the time set out under Rule 9, after that time frame the owner/developer, is legally

precluded from putting up of further construction without consent. At any rate if building is to be put up as a wing of an existing building considering section 7, it cannot be constructed without permission of the flat purchasers. There can, therefore, be no question of further development by the owner or developer. This is considered in the judgment in (Kalpita Enclave Co-op Housing Society Ltd. and others v. M/s.Kiran Builders Pvt. Ltd. And others), 1987(1) Bom. C.R. 355 : 1986 Mh. L. J. 110, as proposition seven. In (Vrindavan Borivali Co- operative Housing Society Ltd. v. Karmarkar Brothers and others), 1983 (2) Bom. C.R. 267 : 1982 Mh. L.J. 607, a learned Judge noted the statutory duty cast on the owner/developer and observed after considering the various sections of MOFA as under “……All these liabilities read with further 15

obligation under sections 10, 11 and 12 go to show that the promoter is under a statutory obligations who should complete the and pass a

conveyance to the organization

named thereunder.” (emphasis supplied)

(B). The judgment applies to the facts of this case. The

term “wing” is not defined in The Maharashtra Ownership

Flats (Regulation of the promotion of construction, sale,

management and transfer) Act, 1963. There is no universally

accepted definition of “wing” in the field of construction. In

any event, nothing to this effect was indicated. Independent,

physically/structurally unconnected buildings within a complex

are often referred to as different wings such as, for instance,

“A” Wing, “B” Wing etc. However, even where buildings are

structurally/physically connected portions thereof are similarly

termed as “wings”. In these buildings, there often is no direct

access from one wing to the other. This appears to be the

case in the present matter as well. 16

Thus, the mere reference to “wings” in a judgment,

would be of no assistance. It would be necessary to examine

the nature of the “wings” in each case.

In Ravindra Mutenja’s

case, as observed therein, the

wings/construction touched each other. They were not

independent, structurally separate constructions. The same

is the situation in the present case as well. I am bound by the

judgment in Ravindra Mutenja’case. s

(C). In view of the judgment in Ravindra Muntenja’ s

case, in the present case, it must be held that the buildings

are not independent of each other and that therefore the

proposed construction would be contrary to and in violation of

Section 7 of the The Maharashtra Ownership Flats

(Regulation of the promotion of construction, sale,

management and transfer) Act, 1963.

13. Mr. Sangalikar relied upon the judgment in the case

of Ralph D’

Souza & Ors. v. Danny D’S

ouza & Ors., 2006(3) Mh.

L.J., 497. The judgment is of no assistance to the Defendant.

In that case, the impugned construction was found 17

to be abutting the Plaintiff’s building. The term “abutting”

does not necessarily mean that the constructions touch each

other. The term “abutting” could also mean an adjoining

property. In fact, the judgment read as a whole, indicates that

the structures therein were independent of each other. This is

indicated from the submission recorded in paragraph 5 of the

judgment to the effect that the decision in Ravindra Mutenja’ s

case would apply even with regard to the proposed

construction of a new building which is independent of the

structure occupied by the flat owners. Thus, the parties

appear to have proceeded on the basis that the structures

were independent of each other. The aspect regarding

touching constructions referred to in Ravindra Mutenja’case s

was not dealt with in Ralph D’S

ouza’s

case.

14. Mr. Mishra relied upon the judgment of a Division

Bench of this Court in the case of White Towers Co-operative

Housing Society Ltd. v. M/s. S. K. Builders & Ors., 2008(4) ALL

MR, 838. A similar situation arose for the consideration of the

Division Bench. I refer to this judgment not in respect of the 18

larger question which I am not deciding but to indicate that

the restraint under Section 7 applies even where the original

plot stands amalgamated with another plot.

Paragraphs 3, 6, 7 and 8 of the judgment read as

under :-

“3. The main grievance of the appellants relate to the plot of land forming part of the plot wherein the society’s building is situated and claims to have been

amalgamated with adjoining plot and where the new layout thereof has been approved for the developments therein by the competent authorities sans the consent of the appellants in relation to the portion of their plot so amalgamated with the adjoining plot.

6. Bare perusal of the impugned order discloses that the same has been passed solely referring to para 17 of the decision in Jayantilal Investments’ case by merely observing that if the contention based on paragraphs 19 and 21 of the said decision are taken into consideration, then the para 17 of the decision would stand diluted. With respect, we are unable to agree with the view taken by the learned single Judge. The Apex Court in Jayantilal Investments’ case, has clearly observed in para 20, after taking into consideration the provisions of Clauses 3 and 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction etc) 19

Rules, 1964, that the said provisions are declared to be statutory and mandatory by the Legislature because the promoter is not only statutorily to give the particulars of land, amenities, facilities, etc., he is obliged to make full and true disclosure of the development potentially of the plot which is the subject matter of the agreement. The promoter is not only required to make disclosure concerning the inherent FSI, he is also required at the stage of layout plan to declare whether the plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. In other words, at the time of execution of the agreement with the flat takers, the promoter is obliged statutorily to place before the flat takers the entire project/scheme, be it a one building scheme or multiple number of buildings scheme. Having observed so in relation to the statutory provisions in Clauses 3 and 4 of the said Rules, the Apex Court has further rules that :

“the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide

Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developability has to be harmoniously read with the concept of registration of society and conveyance of title.”

7. Obviously, the flat takers stand 20

assured that in case of any change to be made in the project, as was disclosed to the flat takers at the time of entering into agreement, the same has to be by

following the proper procedure and without disturbance of the rights accrued to the flat purchasers in relation to the flats and all benefit attached to the flats including in relation to the land on which the building having such flat is situated. Taking into consideration the same, if a portion of the plot wherein the structure having the flat is situated is to be excluded and is to be amalgamated in the neighbouring plot, and the project in this regard is not disclosed to the flat takers at the time of the agreement being entered with the flat takers, it would be totally contrary to the decision of the Apex Court in Jayantilal Investments’ case. This aspect has not been considered by the learned Judge while passing the

impugned order.

8. Taking into consideration the law laid down by the Apex Court in Jayantial Investments’ case, therefore, it cannot be said that the respondent No.5 would be entitled to carry out the construction as a matter of right in the portion of the land of the society’s plot which is stated to have been amalgamated with the neighbouring plot. In fact, the learned single Judge, in para 9 of the impugned order, does make reference to this aspect. However, without considering the same, thereafter, proceeded to grant the relief of injunction. Being so, the impugned order to the 21

extent it excludes such portion of the society’s plot from being subject to restraint, needs to be modified and the relief in the nature of Clause c(ii) granted by the impugned order needs to be modified to exclude such relief in relation to the society’s plot which is said to have been amalgamated in the adjoining plot till disposal of the notice of motion and subject to the decision in the notice of motion.”

In the present case however, there is an added

consideration of the buildings actually touching each other.

Moreover, as observed earlier, the open space on that side of

the building where the proposed construction is to take place,

will be totally blocked.

15. Mr. Sangalikar relied upon an unreported judgment

of a Division Bench of this Court in M/s. Manratna Developers

v. Megh Ratan Co-operative Housing Society Ltd. & Ors., dated

23.10.2008 in Appeal No.297 of 2008 in Notice of Motion

No.1966 of 2008 in Suit No.1698 of 2008.

The judgment is of little assistance to the

Respondent. Firstly, it was found as a matter of fact that the

main reason which prompted the learned Single Judge to 22

grant the injunction was that the amenities of the flat holders

would be reduced if the building was allowed to be

constructed in accordance with the modified plan. The

Division Bench found as a matter of fact that this presumption

was incorrect and that this incorrect presumption was the

main reason for the learned Single Judge having granted the

ad-interim injunction.

Further, it is important to note that the Division

Bench held that the consent of the flat purchasers after the

amendment of Section 7 and the insertion of Section 7A in the

The Maharashtra Ownership Flats (Regulation of the

promotion of construction, sale, management and transfer)

Act, 1963 is not necessary “if additional structures/buildings

are to be raised after obtaining approvals or sanction from the

Municipal Corporation”.

23

The judgment does not deal with the question before

me. In other words, the question whether constructions which

touch each other are additional constructions or not neither

fell for the consideration of, nor was decided by the Division

Bench.

Mr. Sangalikar however submitted that it must be

presumed that the Division Bench held sub-silentio that even

if they were touching each other, it would make no difference

and that the judgment in Ravindra Mutenja’s case is therefore

impliedly overruled.

I am unable to agree. It is settled law that a

judgment is ratio for what it holds and not for what may

appear to logically follow from it.

16. Mr. Sangalikar relied upon the judgment of a learned

Single Judge of this Court in Jamuna Darshan Co-operative

Housing Society Ltd. & Ors. v. M/s. JMC & Meghani Builders &

Ors., 2008(1) ALL MR, 789.

This judgment does not deal with the case of

touching buildings and the effect thereon of Section 7. 24

It is of vital importance to note that the learned

Judge has in fact held in paragraph 4 that :-

“So long as the flats purchased by the owners/purchaser are undisturbed and the structure in which the said flats are located is also unaffected, nothing can prevent the builder /developer to exploit FSI in relation to the plot, unless there was contractual obligation on the builder to the contrary.”

Thus, it is not merely the flat but even the structure

which must remain unaffected.

In the present case specially in view of Ravindra

Mutenja’s

case, it must be held that, if not the flat, the structure

is certainly affected by the amended plans.

17. Appeal No.745 of 2007 was filed against the above

judgment. The same was disposed of by an order of the

Division Bench dated 23.7.2008. The Division Bench

refrained from entertaining the Appeal as the Notice of Motion

was pending and merely expedited the Appeal.

Mr. Sangalikar stated that the SLP against the said

order was dismissed.

18. Notice of Motion No.2220 of 2007 in Suit No.3938 of 25

2001 in the above matter viz. Jamuna Darshan Co-operative

Housing Society Ltd. & Ors. v. M/s. JMC & Meghani Builders &

Ors. was finally disposed of by an order and judgment dated

12.1.2009.

The arguments in the present matter were

concluded just before the Court vacation. The matter was

kept on 14.1.2009 for judgment. On that date, at the request

of both the counsel, I did not pronounce the judgment as it

was stated that the learned Judge has finally disposed of

Notice of Motion No.2220 of 2007 in the above matter. The

counsel wanted to invite my attention to the said judgment.

Accordingly, the matter was adjourned to 17.1.2009 and

again to 21.1.2009.

The judgment however does not deal with the

aspect considered by me above, viz. the effect of Section 7 of

the MOFA in circumstances where the new construction is

not independent of, but touches the original construction.

In the circumstances, this judgment is of little

assistance to the Respondent in the present case. 26

19. In the circumstances, the Appellants have made out

a strong prima-facie case that the proposed construction is

contrary to the provisions of Section 7 of The Maharashtra

Ownership Flats (Regulation of the promotion of construction,

sale, management and transfer) Act, 1963.

20. Faced with this, Mr. Sangalikar submitted that the

Respondent had made known to the Petitioner that the entire

FSI in respect of the plot is to be utilised and that the plot was

to be amalgamated with the adjoining plot. In view of this, he

submitted that the Respondent was entitled to put up any

construction even on the suit plot and continues to be entitled

to do so subject to the plans being sanctioned. This

knowledge, he submitted constituted consent on the

Appellants part for the said construction. I do not agree.

21. As stated above, I do not intend dealing with the

larger question arising from the fact that admittedly this was

not part of the original layout or the scheme. There was no

indication about the same at all material times.

22. Further, even on facts there was no disclosure or 27

consent regarding the proposed development. This defence

was based on Mr.Sangalikar’s submission that the

development agreement and the terms thereof were known to

the flat purchasers including the Appellants and were

confirmed by them.

23. That the Appellants were aware of the agreement

dated 12.2.2001 and confirmed the same is clear, especially

in view of recitals (vi) and (viii) of the agreement between the

parties herein which read as under :-

“vi) In the circumstances and the premises aforesaid the said Owner is entitled to assign, sale & transfer the said property and to allot and assign the development rights of the said property and accordingly the said Owner has by & under Agreement For Development dated 12th February, 2001, assigned the same in favour the Developers herein.

viii) In the aforesaid premises the Developer and the Tenant herein are executing this Agreement for consent and confirmation of the said Letter for Development dated 12-2-2001, jointly executed between the said Owner and the developer and allowing the Developer to use and utilise the TDR FSI on the said property as per the rules and Regulations of the Municipal Corporation of Greater 28

Mumbai and also to record and confirm the consent of the Tenant and also of providing permanent alternative accommodation by recovering construction cost from the Tenant by the Developers.”

24. Mr. Sangalikar submitted that the development

agreement dated 12.2.2001 and in particular clauses 7, 12,

15 and 20 thereof, permitted the developer to amalgamate

the suit property with the adjacent property and to develop the

same pursuant to such amalgamation. The provisions of the

development agreement do permit the Respondent to develop

the property in that manner.

Clauses 7, 12, 13, 14, 15 and 20 of the agreement

read as under :-

“7. It is agreed that the Developer is entitled to have joint hands or joint developments of the said property by acquiring neighboring property from the owners thereof by making any kind of arrangements among themselves and the Developer is entitled to transfer the benefits, right, title and interest under this presents in favour of any person or persons or such joint developments, without any reference to the Vendor, however, payments to be made under this presents shall not affect and same shall 29

be paid as per due dates as per clause `3′ hereinabove and flat to be provided to the Vendor as provided under this agreement.

12. On the payment under clause 3(a) the Vendor shall grant to the Developer the license to enter upon the said property as bare LICENCEES only for enabling them to develop the said property by demolishing existing building “Ambika Bhavan” if require and further by utilising available F. S. I. Of the said property and T. D. R. F. S. I. If applicable as per latest D.C. Rules and Regulations and/or by amalgamation of the said property with the adjacent property as the case may be. It is hereby expressly agreed by and between the parties hereto that the possession of the said property is not being given or intended to be given to the Developer before the execution of these presents. The Vendor and the Developer hereby confirm that by virtue of the Developer entering upon the said property as licencees, the same does not amount to take up possession of the said property. The license to enter upon the said property and develop the same shall become formal possession of the said property in favour of the Developer and/or his assignee/s only after the final payment of the consideration amount is paid to the Vendor by the Developer and/or his assignee/s and upon execution of the Conveyance in respect of the said property and the registration of such Conveyance/s in favour of the Developer or his nominee/s including co-operative 30

Housing Societies or a limited company as the case may be or as may be directed by the Developer.

13. The Developer shall be entitled to proceed with the development of the said property by demolishing the existing building if require and/or by construction and utilising FSI and also T. D. R. F. S. I. if applicable as per D.C. Rules & Regulations by constructing new building/s and/or by amalgamating said property with the adjacent property strictly in accordance with the plans in respect thereof as per latest D.C. Rules & Regulations as may be got approved by the Developer and also in accordance with the rules and regulations of the Municipal Corporation and other concerned authorities and the Development Control Rules and the Scheme that may be sanctioned by the Competent Authority appointed under the Urban Land (Ceiling and Regulation) Act, 1976. The Developer shall throughout hereafter and always save harmless and keep indemnified the Vendor and his respective estates and effects of, from and against all actions, suits, costs, charges, expenses, damages, fines, penalties etc., resulting on account of any act or omission or any breach on the part of the Developer in developing the said property by utilising it’s F. S. I./TDR F. S. I. As set out hereinabove or any part thereof, of any rules, regulations terms or conditions put up by the Appropriate Government Authorities.

31

14. The Developer will be entitled to modify the approved Buildings Plans as they deem fit at their costs, charges and expenses provided the modifications are within or as per the provisions of approved Scheme laid down by the Competent Authority and other Government Authorities including Municipal Corporation of Greater Bombay. The Developer shall pay all the fees of the Architects and R. C. C. Consultants appointed by them for the further development of the said property.

15. The Developer shall in the course of erection and completion of the proposed upper floor on existing building and/or Building/s by amalagamation of the said property with the adjacent property do all lawful acts and things required by and to be performed to works in conformity in all respects with the provisions of the statutes applicable thereto and with the Bye-laws and the rules and regulations of the Municipal Corporation of Greater Bombay, and the rules and regulations of any other public body or local authority or authorities having jurisdiction to regulate the same and shall save harmless and keep indemnified and Vendor against any loss or damage and cost charges and expenses that may be sustained or incurred by the Vendor in that behalf.

20. The Developer shall be entitled to the benefit of F. S. I. Of the additional F. S. I. That may be granted in respect of the said 32

property and/or to utilise T. D. R. F. S. I. As per latest D.C. Rules of the said property from time to time and at all times hereafter.”

25. That above provisions of the two agreements

however do not indicate that the Respondent had, in turn,

represented that it would so develop the property. In other

words, the mere right in the Respondent to so develop the

property cannot constitute a communication or a

representation by the Respondent to the Appellants that they

were going to so develop the property or that they were

intending to so develop the property. Indeed, at the time of

entering into the suit agreements, such proposed

development was not even indicated to the Appellants. Thus,

it cannot be said that the Appellants had consented to the

proposed development even in advance.

26. The learned Judge therefore wrongly considered the

mere right to so develop the property upon amalgamation, to

constitute sufficient compliance with the provisions of the

MOFA. The learned Judge on the basis of this alone held

that no fresh consent of the Plaintiff was required for 33

amending the plans.

27. The learned Judge further held that merely because

access to the Appellants building will be provided, it was

sufficient compliance with the provisions of the MOFA. The

learned Judge did not consider the fact that by the additional

construction touching the Appellants construction, the entire

open space on that side of the Appellants building would be

blocked.

28. Mr. Sangalikar then submitted that the Appellants

were not purchasers in the strict sense but only tenants of the

owners of the property. The Appellants therefore, according

to him, are not entitled to be benefits of the MOFA. The

submission is not well founded.

29. I will proceed on the basis that the development

agreement entered into between the developer and the owner

is incorporated by reference in the flat purchase agreement

entered into between the Defendant and the Appellants.

Clauses 3, 4, 10, 12 and 13 of the Appellants agreements

negate the submission and read as under :- 34

“3. The Tenant further confirm and consent to the Developer to construct new building by providing permanent Alternative Accommodation to him/her and the Developer is entitle to recover construction cost of Rs.600/- from the Tenants occupying the Residential premises and Rs.750/- from the Tenants occupying Shops, including herein of such permanent alternative accommodation in form of new flats/shops having equal carpet area of the said existing Premises which at present in occupation of the Tenant and the Developer is entitle to demolish the said building “AMBIKA BHUVAN” and compensate themselves by constructing new residential flats/shops etc., on the said property by utilising the FSI & TDR FSI being the maximum permissible FSI available as per law and as per the Development Rights Certificates to be obtained by the Developer under D.C. Regulations No.34 of the Development Control Regulations for Greater Bombay, 1991 read with regulations for the grant of transferable development rights to owner/developer and conditions for grant of such rights as contained in Appendix VII thereto the law time being in force being as per

specification to be given by the architect entirely at the Developer’s cost, charges, expenses and incidentals thereto to put up construction of the residential/commercial building in the said property more particularly described in the Schedule hereunder written.

35

4. The Tenant confirms and consents that the Tenant is ready and willing to accept the permanent alternate accommodation in lieu of the his/her said tenanted Premises & also ready & willing to pay construction cost of Rs.600/- being as residential occupiers, per sq. ft. carpet of the said permanent Alternative Accommodation admeasuring 320 sq. ft. carpet (being equal area of the said existing Premises to the Developer as contained

hereinafter.

A. The Developer has agreed to give as per this agreement new Premises in proposed Building, aggregating to all admeasuring 320 sq. ft. carpet area, which is equal area of the said Existing premises to be provided to the Tenant herein in lieu of his/her arrangement to hand over the existing premises in his/her occupation and permit the developer to develop the said property. It is also agreed that this Agreement shall be treated as executed under the Provisions of Maharashtra Ownership Flats Act, 1963.

B. The Tenant herein has requested the Developers to provide additional area 75 sq. ft. carpet over and above the said area of 320 sq. ft. carpet and the Tenant is ready to pay the

Consideration thereof to the Developers and accordingly the Developers has agreed to sell the said additional area of 75 sq. ft. carpet at and for total 36

consideration of Rs.2,16,200/- . Thus the Developers has to provide the said new Premises (Flat) in all admeasuring 395 sq. ft. carpet, which include the Original area of the said existing Premises and the said additional area of 75 sq. ft. carpet (agreed to be purchased by the Tenant). The said Consideration of Rs. 4,08,20/- shall be paid by the Tenant to the Developers as set out in payment clause appearing hereinafter.

10. The Developers have agreed to construct new building as per the approved Plans by the MCGM and

sanctioned on the said property and the Tenant further agrees and undertakes to co-operate with the Developers in the matter of construction of the said proposed buildings and for

that purpose to sign letters of no objection if and when required or demanded by the developers or by the Municipal Corporation of Greater

Mumbai or any other public body or authority including the Aviation Authority. The Tenant agrees that he/she shall not either through

himself/herself, or through servants or agents object or let or create any hindrance whatsoever for construction of new building/s on the said property.

12. The Tenant herein has requested the Developers to provide additional area 75 sq. ft. carpet over and above the said area of 320 sq. ft. carpet and 37

the Tenant is ready to pay the

Consideration thereof to the Developers and accordingly the Developers has agreed to sell the said additional area of 75 sq. ft. carpet at and for total consideration of Rs.2,16,200/-. Thus the Developers has to provide the said new Premises (Flat) in all admeasuring 395 sq. fts. Carpet, which includes the Original area of the said existing Premises and the said additional area of 75 sq. ft. carpet (agreed to be purchased by the Tenant).

13. The Developers have agreed as per the said agreement as well as under this presents a self-contained Flat in proposed new building being Flat

No.501 on 5 floor admeasuring 395 square feet carpet area being having equal carpet area of the said Old Premises being the said existing Room No.14 AND ALSO THE ADDITIONAL

AREA AGREED TO PURCHASE BY

THE TENANT, to be provided as per the said Agreement (FOR DEVELOPMENT) AND THIS AGREEMENT to the Tenant in lieu of his/her surrendering tenancy and

Occupancy rights of the said premises and possession thereof to the

Developers being as the permanent Alternate Accommodation in lieu of the said premises and in pursuant to the said Agreement. Thus under this presents the Developers have agreed to provide said Flat No. 501 on 5 floor in “A” Wing, of the new building having 38

equal carpet area of the said Old Premises (existing Room) AS WELL AS THE SAID ADDITIONAL AREA to the

Tenant and a tentative floor plan thereof is annexed herewith and hereinafter referred to as the said Flat.”

It is clear that what the Appellants and the other flat

purchasers have purchased by the said agreement is the

ownership rights of the premises mentioned in each of the

agreements. Consideration for the same is stipulated and has

been paid. In other words, the agreements do not merely

confirm or continue the tenancy rights which they had in the

property prior thereto. The doubt, if any, is set at rest by the

fact that the agreement and, in particular, clause 4(a) thereof

expressly states that it shall be treated as executed under the

provisions of the MOFA.

30. In the result, it must be held that the Appellants are

purchasers of the premises mentioned in the agreement and

are entitled to the benefits of the MOFA.

31. Mr. Sangalikar next contended that the suit is not

maintainable in view of Section 149 of The Maharashtra

Regional & Town Planning Act, 1966. He further submitted 39

that the suit is liable to be dismissed on the ground of non-

joinder of the BMC, which is a necessary party. Section 149

of The Maharashtra Regional & Town Planning Act, 1966

reads as under :-

“149. Finality of orders.-Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings.”

32. In this regard, Mr. Sangalikar relied upon the

judgment of this Court in Raja Bahadur Motilal & Anr. v. State

of Maharashtra & Ors., 2003 (1) Bom. C. R. 251, Mohan N.

Bhawe (Dr.) v. Municipal Corporation of Greater Bombay, 2005

(3) Bom. C. R., 300, Bales Sardara Paracha v. Municipal

Corporation of Greater Bombay & Anr., 2005(4) Bom. C.R.,

577.

33. Prima-facie, it does not appear that the judgments

are of any assistance to the Respondent. It is held that

Section 149 excludes the jurisdiction of Civil Courts so far as 40

the challenge to the orders passed or directions issued by the

State Government or orders passed or notices issued by any

Regional Board, Planning Authority or Development Authority

under the MRTP Act are concerned. The challenge in these

cases was to the orders passed under the MRTP Act per-se.

In the present case, the question is whether even

assuming that the building permissions have been granted in

accordance with the provisions of the Bombay Municipal

Corporation Act and the MRTP Act, a flat purchaser is

entitled to challenge the construction itself as being violative

of MOFA. The challenge in the present case is not to the

sanctioned plans alone/per-se, but to the right to even submit

the plans/carry out the construction in view of the provisions

of MOFA.

It is pertinent to note that when the plans are

sanctioned under the said Acts, there is no provision which

mandates a notice to the affected flat purchasers. Nor is

there any provision entitling them to be heard in all cases. I

do not suggest that it is not open to the authorities to consider 41

the representations of the affected flat purchasers. They may

well do so. In the present case, for instance, the Appellants

and the other flat purchasers were not even consulted or

heard by the authorities.

34. It is pertinent to note that second and third cases

referred to above deal with cases under Section 55 of the

MRTP Act which authorises the Planning Authority to take

action as mentioned therein, where the development of a

temporary nature is carried out unauthorisedly as indicated in

Section 52(1). Section 52 deals with cases where a person

carries out development or institutes or changes the use of

the land without permission under the Act or contrary to

permission granted thereunder or after the permission has

been revoked. The present case does not fall under this

Section. The questions which arose in this case therefore

directly fell within the purview of the MRTP Act alone and the

orders challenged were orders passed and directions issued

by the authorities thereunder.

35. In Ravindra Mutenja’ case s (supra) though

42

contentions were raised regarding the nature of the

construction, on grounds other than those covered by the

MOFA, the learned Judge held that the Court can take notice

of those aspects considering Section 7A of the MOFA. In that

case too, the development authorities were not before the

Court. Objections as in this case were taken but were

rejected as noted in paragraph 12 of the judgment.

36. Mr. Sangalikar then submitted that the suit is liable

to be dismissed for non-joinder of all the co-owners/members

of the proposed society.

Prima-facie again, this contention is not well

founded. Prima-facie, it appears that any flat purchaser is

entitled to raise a grievance under the provisions of the

MOFA.

37. Mr. Sangalikar submitted that the consequential

reliefs have not been sought and that therefore the suit is

liable to be dismissed in view of the provisions of Section 34

of the Specific Relief Act. He relied upon the judgment of the

Supreme Court in the case of State of Madhya Pradesh v. 43

Mangilal Sharma, AIR 1998, Supreme Court, 743.

38. The submission is not well founded and the

judgment is of no assistance to the Respondent. Indeed, it is

pertinent to note that even in that case it was observed that it

was not necessary for the Respondent therein to seek the

additional relief of arrears of salary in a suit for declaration

that he continues to be in service. In paragraph 6, the

Supreme Court held that it is not that if in a suit for declaration

if the Plaintiff is able to seek further relief, he must seek all

relief though he may not be in need of that further relief.

In the present case also, it was not necessary for

the Appellants to seek the relief for the demolition of the

illegal construction and for an order directing the Respondent

to remove the debris. If the Appellants succeed in obtaining

the relief of declaration, they are always at liberty to remove

the illegal construction on their own and to remove the debris.

If the Respondents claim a right in the debris, it would be for

them to adopt appropriate proceedings in respect thereof. In

any event, assuming that there is any infirmity in this regard, 44

the same can be taken care of by the simple expedient of an

amendment.

39. Mr. Sangalikar submitted that the suit was also bad

for not having impleaded the owner, who is a necessary party.

Even assuming that the submission is well founded in

respect of some of the prayers, such as the prayer for

conveyance, prima-facie at least, the owner does not appear

to be a necessary party in respect of the main prayers viz.

prayers (b) and (l) which pertained to reliefs under the MOFA

The obligations under the MOFA are to be complied with by

the promoter i.e. the Defendant. This infirmity too, can be

removed by an amendment.

40. In the circumstances, the impugned order and

judgment is set aside and the Notice of Motion is made

absolute in terms of prayers (c) and (d). Prayer (e) had

already been granted by the trial Court and the same not

having been challenged, continues to operate.

41. Mr. Sangalikar seeks a stay of this order for a period

of eight weeks to enable the Respondent to challenge this 45

order.

Normally, I would not hesitate to grant stay.

However, in the present case, I am not inclined to do so as it

would be possible in the meantime, to raise the construction

considerably. Thus, even if no equities are claimed, as stated

by Mr. Sangalikar, on the one hand, it would not be in the

benefit of the Respondent but, on the other, it would prejudice

the existing structure owned by the Appellants. However, the

work as regards the underground basement only may

continue for a period of eight weeks from today. This is being

permitted on Mr. Sangalikar’s statement that no equities on

that basis shall be claimed at any stage and that the

Respondent would restore status-quo if so ordered by any

Court.

42. Certified copy expedited.

43. All parties to act on an ordinary copy of this order

duly authenticated by the Personal Assistant of this Court.

Ash Wednesday marks the beginning of the Season of Lent.

It is a season of penance, reflection, and fasting which prepares us for Christ’s Resurrection on Easter Sunday, through which we attain redemption.

Why we receive the ashes

Following the example of the Nine vites, who did penance in sackcloth and ashes, our foreheads are marked with ashes to humble our hearts and reminds us that life passes away on Earth. We remember this when we are told

The Ashes

The ashes are made from the blessed palms used in the Palm Sunday celebration of the previous year.