JUDGMENT - KHANDEPARKAR R.M.S., J.:—Heard the learned Advocates for the parties. Perused the records. 2.The petitioners challenge the notice issued by the respondent No. 2 being notice Exhibit "C" and "E" dated 29 September, 1993 and 27 October, 1993 respectively being illegal and unwarranted as the petitioners are not liable to pay the said amount since the said amount was required to be deposited by the respondent No. 3 in their capacity as the builders and in terms of the agreement between the respondent Nos. 1 and 2 on one side and the respondent No. 3 on the other side. 3.The undisputed facts of the case are that the respondent No. 3 is the builder and contractor and as such was allotted Plot No. 208 of Block No. III under the Backbay Reclamation Scheme on the terms and conditions stated in the agreement between the respondent No. 2 and the respondent No. 3. Pursuant to the allotment of the plot, the resplendent No. 3 had completed the construction of the building on 29th July, 1976 and the said plot was allotted to the respondent No. 3 on 13th March, 1972. The units in the same building were sought to be purchased by various persons for commercial purposes and the individual purchasers of those units formed a co-operative society being the petitioner No. 1 and the same is in existence since 12th March, 1979. The petitioners in order to acquire property rights in the units purchased by them requested for execution of the lease deed in their favour in relation to the said plot. In reply to the said request, the respondent No. 2 demanded a sum of Rs. 1,35,20,376/- as premium for the execution of the lease deed in favour of the petitions and the same was challenged by the petitioners in Writ Petition No. 2437 of 1988 which came to be allowed by this Court by its order dated 26th July, 1993 and the respondent No. 2 was restrained from enforcing the said demand contained in the letter dated 30th December, 1993 from the petitioners and was further directed to execute the lease deed within 16 weeks from the date of disposal of the matter in Atur India Pvt. Ltd. by the Apex Court. Inspite of the said directions, a Show Cause Notice dated 29th September, 1993 Exhibit-C to the petition came to be issued to the petitioners followed by the Notice dated 27th October, 1993 Exhibit-E thereby demanding a sum of Rs. 5,65,620/- as well as for a sum of Rs. 10,000/- on the ground that the said amount was required to be deposited by the petitioners as security deposit and since the respondent No. 3-builder had failed to do so, and as the petitioners are occupying the said plot in respect of which the amount was required to be deposited with the respondent No. 2, that therefore, the petitioners are liable to pay the same to the respondents. In the affidavit-in-reply filed by the respondents, they have clarified that the demand notice is on account of failure on the part of the respondent No. 3 to deposit the said amount and the petitioners are liable to deposit the same as successor-in-title. A clear statement in that regard is to be round in paragraph 6 of the affidavit-in-reply filed by Ganesh Baburao Sawardekar, Assistant Superintendent-cum-city Survey Officer (1), Mumbai City, on behalf of the respondent No. 2. 4.Undisputedly, the terms of the agreement in relation to the allotment of the plot disclose that the security deposit equal to one years ground rent was required to be deposited by the respondent No. 3 and the same was to remain with the respondents till completion of the building and till compliance of all the conditions of the agreement of lease. Out of the earnest money deposited, a sum of Rs. 10,000/- was to be retained by the respondent Nos. 1 and 2 during the subsistence of the lease and the sum of Rs. 40,000/- was to be retained till completion of the reclamation of the plot. The provisions to that effect are to be found in Clauses 13 and 14 of the terms of the agreement in relation to the allotment of the plot. 5.The fact that the construction of the building was completed on 29th July, 1976 has been clearly stated by the petitioners in paragraph 7 of the petition and is not in dispute. The provisions to that effect are to be found in Clauses 13 and 14 of the terms of the agreement in relation to the allotment of the plot. 5.The fact that the construction of the building was completed on 29th July, 1976 has been clearly stated by the petitioners in paragraph 7 of the petition and is not in dispute. Likewise, the Clause 8 of the terms of the agreement also provided that the respondent No. 3 was required to complete the reclamation of the plots to the satisfaction of the Chief Engineer to the Government of Maharashtra, Building and Communication Department within a period of one year from the date of handing over of possession of the plots and no construction was to be carried on nor any development thereof was to be allowed till the plot was fully reclaimed to the satisfaction of the Chief Engineer of the Government of Maharashtra. In other words, the construction activities could not have commenced on the plot unless the process of reclamation had been completed to the satisfaction of the Chief Engineer. Once it is apparent that the construction of the building was completed in March, 1976 and the said fact is not in dispute, it is apparent that the reclamation of the plot was completed prior to the construction of the building. As such, in terms of Clauses 13 and 14 of the said agreement, as on the date of the impugned notice, the Government had no right to retain beyond, the sum of Rs. 10,000/- out of the security deposit from the respondent No. 3. In other words, on the date on which the impugned notices were issued, the petitioners being in occupation of the plot under the lease could have been fastened with the liability maximum to the extent of Rs. 10,000/- and not to the extent of Rs. 5 lakhs and odd as claimed by the respondents. 6.The learned Advocate for the petitioners is also justified in drawing attention to the order of the learned Single Judge of this Court dated 3rd December, 1993 in this petition whereby the respondent Nos. 1 and 2 were permitted to take necessary action against the respondent No. 3 has against the Government in relation to the allotment of the plot. 6.The learned Advocate for the petitioners is also justified in drawing attention to the order of the learned Single Judge of this Court dated 3rd December, 1993 in this petition whereby the respondent Nos. 1 and 2 were permitted to take necessary action against the respondent No. 3 has against the Government in relation to the allotment of the plot. The learned Advocate for the respondents has not pointed out any such action having been taken or any justification for not taking any such action against the respondent No. 3 till this date. Being so, merely because the Government had lost interest for all these years on the amount which was required to be deposited by the respondent No. 3, the petitioners cannot be held liable for the same and more particularly when the respondent Nos. 1 and 2 are not in a position to disclose any reason for not taking any action against the respondent No. 3 in relation to the said companys liability to the Government. 7.Since there was no obligation on the part of the petitioner society to pay the said sum of Rs. 5 lakhs and odd as claimed in the impugned notices on the date when the same were issued to them, apart from the sum of Rs. 10,000/- in terms of Clause 14 of the said agreement and as observed above, the impugned notices are liable to be quashed and set aside subject to the petitioners depositing a sum of Rs. 10,000/- with the respondent No. 2 within a period of four weeks from today. 8.In the result, therefore, the petition succeeds and the impugned notices dated 29th September, 1993 and 27th October, 1993 at Exhibits "C" and "E" to the petition respectively are hereby quashed and set aside subject to the petitioners depositing a sum of Rs. 10,000/- with the respondent No. 2 within a period of four weeks from today. As regards the execution of the lease deed, the learned Advocate for the petitioners has submitted that the petitioners do not want to insist for the said relief as the respondents have already executed the Sale-Deed and the registration process in respect thereof is being finalised. Rule is made absolute in the above terms with no order as to costs. -----