M/S. All India Medical ... vs Smt. Shanta N. Shah And Anr
2017 Latest Caselaw 4829 Bom

Muj                                                                                                                   280-wp-3902-1998.odt


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 3902 OF 1998


M/s. All India Medical Corporation,
Mulji Jetha Building, 1st Floor,
185, Princess Street,
Mumbai-400 003.                                                                           ...           Petitioner

                   V/s.

1.  Smt Shanta M. Shah
2.  Smt. Pravina M. Shah
     both residing at Dhiraj Apartment,
     'A' Block No.16, 17 & 18, 
     4th Floor, Peddar Road, 
     Mumbai-400 026.                                                                      ...           Respondents


•     Mr. G.H. Keluskar for the Petitioner.
•     None for the Respondents.


                                                      CORAM   : G.S. KULKARNI, J.

                                                      DATED    :  20th July, 2017.

JUDGEMENT:

1. Heard Mr. G.H. Keluskar, learned counsel for the petitioner. The

petitioner is a tenant of a building known as Madhiwala Building situated

on the ground floor, No.3-5-5A, Dr. Bhalerao Marg (Kelewadi), Girgaum,

Mumbai. It is not a dispute that the building collapsed in the month of

July 1984. The case of the petitioner-tenant was that there was

proceeding initiated by MHADA to acquire the building and ultimately, it

Muj 280-wp-3902-1998.odt

was acquired under the provisions of section 93 of the Maharashtra

Housing and Area Development Act. In pursuance of this acquisition as

stated by the petitioner, Miscellaneous Notice No.4021 of 1997 came to be

filed on behalf of the petitioner in R.A.E. Suit No. 1339/4570 of 1974 as

filed on behalf of the respondents-landlords, inter alia praying that in view

of the acquisition of the building by MHADA, the respondents have ceased

to be the landlords of the suit property and therefore, they were not

permitted to proceed with the suit. It was prayed that the respondents be

called upon to disclose proper facts regarding acquisition of the said

property and the suit be stayed for the said reasons. This application was

contested on behalf of the respondents by an order dated 05/01/1998, the

learned Judge of the Small Causes Court dismissed the said application

after hearing the rival contentions. It was observed that the respondents-

plaintiffs have not handed over the possession of the property to MHADA

and therefore the contention of the petitioner that the respondents ceased

to have any right in the suit premises cannot be accepted. The

respondents thereafter, approached the appellate bench of the Small

Causes Court Mumbai in Revision Application No. 41 of 1998, being

aggrieved by the said order passed by the learned trial Judge. The

appellate Court confirmed the findings as recorded by the trial Judge and

dismissed the revision application against which the petitioner is before

this Court with the present proceeding.

Muj 280-wp-3902-1998.odt

2. Mr. Keluskar, learned counsel for the petitioner would state that,

the Courts below are in an error to accept the contention of the petitioner

that the respondents-landlords ceased to have any right in respect of the

suit premises in view of the acquisition of the suit premises at the hands

the MHADA under Section 93 of the Maharashtra Housing and Area

Development Act. He submits that, admittedly the respondents would

cease to be the landlords as there would be an automatic severance of the

relation between the petitioner and the respondents as that of a landlord

and a tenant. He accordingly, submits that this petition deserves to be

allowed by setting aside the order passed by the Court below.

3. A perusal of the findings which are recorded by the Courts below to

my mind are quite clear, there is a finding of fact which is recorded that,

the respondents-plaintiffs have not handed over the physical possession of

the suit property to the MHADA. As also the entire procedure as required

to be followed under the provisions of MHADA Act, so as to completely

vest the premises in MHADA appears to be not completed when the

application came to be moved. If that be the situation, then certainly

these findings which are based on evidence cannot be said to perverse. I

am also not pointed out any other finding which would reflect the

perversity of any observations to enable this Court to exercise its

jurisdiction under Article 227 of the Constitution of India. The Writ

Petition is accordingly dismissed. No costs. The petitioner however, is not

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precluded from urging any other issues as permissible for him to be

asserted at the trial of the suit.

(G.S. KULKARNI, J.)