Khodadad Ardeshir Leader And Ors. vs Sundhakar Anantram Shetty
2002 Latest Caselaw 837 Bom

JUDGMENT

F.I. Rebello, J.

1. Though the suit itself was disposed of by consent terms filed on 25-6-1993, the matter is pending before this Court on the claim by the defendant to the suit, that the applicants herein who had acquired the land and building and have reconstructed the building under the provisions of Maharashtra Housing and Area Development Act, 1976, have to make available to them, an area admeasuring 176 sq. mtrs which is the area which according to defendants was taken possession of by the Court receiver.

2. A few facts may be set out for the purpose of deciding the controversy. A suit came to be filed before this Court, by one Khodadad Ardeshar Leader and others as plaintiffs against the present defendant. That suit was filed some time in the year 1978. There were some disputes between the parties to the suit pursuant to which a Court receiver came to be appointed. There are several orders passed by this Court. The first such order is dated 29-7-1988. In this order the Court held that the area covered by the restaurant, mezzanine floors and the passage admeasures respectively 1112.00, 550.00 and 231.30 sq. ft. admeasuring totally 1893.30 sq. ft. This converted into metres works out to 176.00 sq. mtrs. The order itself shows that the defendant's contention that the defendants are in possession of the passage admeasuring 231.30 sq. ft. was disputed by the plaintiffs. Next is order of Dhanuka, J., dated 29-4-1991. The contention of the applicant MHADA who had intervened in the meantime was heard. The case of the applicant was that as per the sanctioned plan the authorised area of the restaurant worked out to be 736.27 sq. ft. only. The learned Judge noted that it will not be possible to decide the question as to what would be the exact entitlement of the defendant in the reconstructed building. The Court then observed that the applicant Board to take possession of the suit premises and to hand over area to defendant as per the entitlement of the defendants.

The next is order dated 11-12-1991 passed by Shrikrishna, J. The Court noted that there is a serious dispute, as to what exactly is the sanctioned area of the premises and that the original sanctioned plan does not appear to be available. The Court has noted that the applicants rely on the administratively approved plan dated 12th October, 1972 prepared by Architect Mr. A.R. Joshi. The Court then observed that considering the contention of the parties, the issue cannot be decided merely on affidavits and parties will have to be given an opportunity to lead evidence. The applicant authority was ordered to reconstruct the rest of the building except suit premises. The authorities were directed to keep the evidence ready. After that is the order dated 25-6-1993 of I.J. Shah, J. By this order, the suit was disposed of in terms of the consent terms. Consent terms does not provide or determine what was the area except that the Court Receiver was to hand over the possession to the defendant and not to the plaintiff. The suit thus came to be disposed of. It seems that the applicants were allowed to re-construct the building including the area occupied by the respondent.

3. After reconstruction, applicant Board has handed over to the defendant an area of 720 sq. ft. which according to applicant Board was entitlement of the defendant. The defendant not satisfied with that area moved the Court Receiver that it should be handed over an area of 176 sq. mtrs less the already handed over. Based on that, Receiver has submitted report to this Court for directions and the matter has been pending hearing for a considerable length of time.

4. The demanded by the defendant is opposed by the applicant on various grounds. A few additional facts may be noted. The authority exercising powers under section 93(3), (4) of the MHADA Act issued notification dated 10-8-1987. In this notification at Serial No. 7 is show, one S.N. Driver occupying Room Nos. 9 and 10 having total area admeasuring 68.40 sq.metrs. On 19-12-1987, approval was granted by the State Government for acquisition under section 93(1) by notification of 19-12-1987. An order thereafter came to be passed on 12-4-1989 by the Special Land Acquisition Officer acquiring the land. The said orders reads that on and from the date of publication of that order in the Official Gazette, the said lands with the existing building thereof, if any, shall vest absolutely in the Board on behalf of the authority free from all encumbrances. There is a note setting out, that the area of Gurukripa Hotel mentioned against Serial No. 7 of Schedule "C" in the notice dated 10-8-1987 under section 92(3) and (4) of the MHADA Act, 1976 shall be decided as per the Court's decision in Suit No. 825/78. In the final Award made on 28-7-1993, area of Gurukripa Hotel i.e. shop and Room Nos. 9 and 10 was left open to be decided by the Court. These are the few additional facts based upon which the issue will have to be decided.

As already noted, the claim by defendant is based on three sets of areas. Whether such claim is admissible in terms of the MHADA Act. The learned Counsel for the defendant has submitted rules issued by the Indian Standard Method of Measurement of Plinth, Carpet and Rentable Areas of buildings to contend that mezzanine area has to be included in the built up area. Section 92(2) of the MHADA Act provides that occupier in the building proposed to be demolished shall as far as practicable be provided in the reconstructed building, the accommodation with clear area equivalent to their floor area in the old building. Proviso thereafter was added whereby in the case of the occupier of residential premises, the clear area of accommodation in the reconstructed building shall not be less than 20.9 sq.mtrs. and more than 70 sq.mtrs. What that would mean is that an occupant residing in the building, cannot be given less than 20.9 sq.mtrs and more than 70 sq.mtrs. In other words, if the person was occupying an area of say 15 sq.mtrs, the accommodation to be given would be 20.90 sq.mtrs. In a case where the person was occupying 100 sq.mtrs, the area of the premises to be given would not be more than 70 sq.mtrs. A balance is maintained of the minimum and maximum areas to be allotted in the case of the building reconstructed under the provisions of the MHADA Act to occupiers occupying residential premises. There is no such limitation for commercial premises. Therefore, in so far as commercial premises are concerned, after taking into consideration the actual area occupied the area to be granted would be the area available for distribution in the newly constructed building. As an illustration, if there are 10 shop owners on the ground floor having each an area of 100 sq.mtrs. together totalling 1000 sq.mtrs. and in the newly constructed building area to be constructed as per the development plan and regulation is 700 sq.mtrs. then that 700 sq.mtrs. will have to be divided proportionately between the shop occupants corresponding to the area held by them as occupants in the old building. If it is so construed, than the purpose of section 92(2)(a) is satisfied namely to give to the occupiers in the newly constructed building as far as practicable a clear area that they were occupying in the old building. It does not mean that the public authority like MHADA set up for the express purpose of reconstruction and rehabilitation, has to use the public funds to provide additional area in the same building or in other buildings to the person like defendant who contends that he should be granted 176 sq.mtrs. even if in the newly constructed building in terms of the area built upon such area is not available.

5. We then come to the contention based on the orders of this Court though as to what exactly would be the area, defendant would be entitled to. As noted earlier, there are three areas which were combined together. In so far as mezzanine is concerned, it is a construction in between the floor and the ceiling. The learned Counsel for the defendant contends relying on the publication by Indian Standard Method of Measurement of Plinth, Carpet and Rentable Areas of building, that mezzanine should also be considered to work out the carpet area. In my respectful submission that is not possible. If that be the case, if all the shop owners in the shop admeasuring 1000 sq.mtrs. has put up 500 sq.mtrs of mezzanine area which the board will have to give to such person, will be an area equivalent to 1500 sq.mtrs. whereas they can construct in terms of the rules a maximum of 700 sq.mtrs. Even otherwise, the Indian Standards does not show that mezzanine area is to be considered for plinth area or carpet area. Mezzanine area is only defined. What can be included for measurement of plinth area is shown as also for carpet area. That does not mean that because mezzanine area is not shown as excluded, that area forms part of the plinth or built up or carpet area. The carpet area has been defined as also plinth area. That contention must therefore, be rejected. Therefore, the area admeasuring 550 sq.ft. will have to be excluded.

6. We then come to the next area namely 231.30 sq.ft. The plaintiff in the suit had contested the right of the present defendant of being in possession and occupying passage of 231.30 sq.ft. Even otherwise, the defendant has no declaration against the plaintiff that the area of 231.30 sq.ft. which was not part of Room Nos. 9 and 10 is part of the rooms and as such the defendant would be entitled for the same. That area will have also to be excluded. Secondly the applicants had already become owner of the land and building on 12-4-1989 free from all encumbrances. The only liability on the board was to provide to the occupiers as far as practicable the area occupied by him in the old building. That area would be the area which in a constructed building that was allotted and not the entire lands unless there was a declaration in favour of the defendant by a competent Court directing the applicant to hand over the area occupied by common corridor etc. That area must therefore, be excluded.

We then have the area of 1112 sq.ft. That area purportedly was based on the licence issued by the municipality. At any rate, the owner of the building without area being proved cannot be saddled based upon the area on monthly licence unless the owner was heard on the area before a decision was taken. It may also be noted that when the consent terms were filed, the order of Shrikrishna, J., was not brought to the notice of the Justice I.J. Shah, J., that evidence has to be led to find out the area of the defendant. That order clearly mentions dispute as to the area and a to lead evidence. In these circumstances, though the Award state that the area would be decided in the suit, the suit itself having been withdrawn without the area having been decided, the defendant cannot now contend that he is entitled to 176 sq.mtrs. Once that be the case, it is not possible to hold that the applicant herein are duty bound to give to the defendant the area admeasuring 176 sq.mtrs. In terms of the notification, an area admeasuring 68 sq.mtrs was notified. The defendant has been given 720 sq.fts. which was admissible. To my mind, the applicants have complied with their statutory duty under section 92 of the MHADA Act of giving as far as possible the area occupied by defendant as occupants in the old building and now in the newly constructed building.

With the above, in so far as Court Commissioner's report is concerned, the report disposed of. The applicants have discharged their duty under law. It may be made clear that if the defendant has any right independently for assertion of the area, it will be open to the defendant to a proceed according to law following the due process of law. This order is passed in the Receiver's report. Order accordingly.

Defendant to pay Court Receiver's fees of Rs. 1000/-.

Parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court on usual copying charges. P.A. to issue ordinary copy.