Sudha Ramchandra Hatkar And 2 Ors vs The State Of Maharashtra And 5 Ors
2022 Latest Caselaw 2987 Bom

                                                                       34-OSWP-478-2021.DOC




                      Ashwini



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION
                                       WRIT PETITION NO. 478 OF 2021


                      Sudha Ramchandra Hatkar & Ors                           ...Petitioners
                           Versus
                      The State of Maharashtra & Ors                        ...Respondents


                      Mr Mayur Khandeparkar, with Priyanka Shukla, i/b Omar
                           Khaiyam Shaikh, for the Petitioners.
                      Mr Sukanta Karmakar, AGP, for Respondent No.1-State.
                      Ms Manisha Jagtap, for Respondent No. 2-MHADA.
                      Mr Arshil Shah, for Respondent No. 3 to 5.


                                              CORAM        G.S. Patel &
                                                           Madhav J. Jamdar, JJ.

                                              DATED:       28th March 2022
                      PC:-

ASHWINI
HULGOJI

GAJAKOSH 1. Rule. Arguable questions arise. Respondents Nos. 1, 2 and 3 Digitally signed by ASHWINI HULGOJI GAJAKOSH to 5 waive service. Hamdast permitted for service on Respondent No. 6.

Date: 2022.03.29 19:26:04 +0530

2. The dispute here is at two levels. The Petitioners are members of what we will called the Ramchandra branch of the Hatkar family. Respondents Nos. 3 to 5 are the heirs of the Gajanan branch. The 2nd Respondent is the Mumbai Building Repairs and

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Reconstruction Board a unit of MHADA. Respondent No. 6 is a developer ("Sonakshi Constructions").

3. The dispute relates to a real estate redevelopment at Ranade Road, Dadar. There stood at this site a dilapidated building known as Chudiwadi. Room No. 20 on the ground floor of this building was in the name of Gajanan Ramchandran Hatkar. The Petition says that Ramchandra and his family (including the Petitioners) were in use of Room No. 20 since before 1965. Gajanan had shifted to Malad and was permanently resident there even before 1965. The place at Malad to which Gajanan had moved was demolished by a developer under a Slum Rehabilitation Scheme sometime in 2003. Gajanan himself was a beneficiary as an eligible slum dweller. He was given and took possession of permanent alternate accommodation under that SRA scheme of room No. 402, 4th floor, Dhiraj Indrani Building, Ramnagar, Chincholi Bunder Road, Malad West, Mumbai 400 064.

4. Meanwhile, the Chudiwadi building at Dadar was taken up for redevelopment by Sonakshi Constructions. Occupancies were surveyed. Sonakshi Constructions took an irrevocable consent dated 27th April 2000 from Ramchandra. Sonakshi Constructions then entered into Permanent Alternate Accommodation Agreement dated 28th January 2001 with Ramchandra. MHADA issued a certified list of occupant in 1999 or 2000. Ramchandra's name featured on this list at Sr No. 9. He was eligible for re- accommodation on redevelopment of the Chudiwadi project.

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5. Ramchandra and his family (including the Petitioners) vacated Room No. 20 in the old building on 3rd March 2003. The old building was brought down. A new building called Om Shanti was constructed in its place.

6. Ramchandra died on 2nd July 2004. The Petitioners were allotted Room No. 204 in the new building. They were put in possession of those premises on 11th March 2006. There were disputes between Petitioners and Sonakshi Constructions. Petitioner No. 1 filed SC Suit No. 2502 of 2006 in the City Civil Court. There were other proceedings between the Petitioners and Sonakshi Constructions including regarding restoration of electricity and water supply. Ultimately, the Petitioners vacated those premises and delivered possession to Sonakshi Constructions on 12th March 2007 and, on legal advice, then withdrew the City Civil Court Suit.

7. Sonakshi Constructions then gave the Petitioner temporary alternate accommodation at another location at Worli. This continued for 11 months but then Sonakshi Constructions refused to extend that facility or to provide alternate premises. Ultimately, that seems to have been resolved. The Petitioners have been in this temporary alternative accommodation ever since. Sonakshi Construction is paying the license fee.

8. In the meantime, Gajanan filed a SC Suit No. 4584 of 2005 on 24th October 2005 in the City Civil Court. In this, Gajanan challenged the agreement of 28th January 2001 executed by

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Sonakshi Constructions with Ramchandra for permanent alternate accommodation. With leave of the Court, Gajanan deleted the prayer for possession.

9. While Gajanan's Suit was pending, the Petitioners applied on 28th February 2013 to MHADA asking it to direct Sonakshi Constructions to deliver possession of the reconstructed premises new Room No. 204 in the Om Shanti building to the Petitioners. MHADA took no action. The Petitioners filed Writ Petition No. 910 of 2014. That petition was disposed of 29th July 2015 with a direction to the City Civil Court to dispose of the matter before it on or before 31st December 2016.

10. Gajanan's Suit No. 4584 of 2005 proceeded to trial. The developer too gave evidence, admitting that the developer was using Room No. 204 as an office/godown.

11. Ultimately, on 27th January 2016, Gajanan's SC Suit No. 4584 of 2006 was dismissed. By this time, Gajanan himself had passed away. His heirs filed First Appeal No. 389 of 2018. There is a Civil Application No. 1643 of 2016 for stay. There is no order made on that Civil Application. We are told that the First Appeal has been admitted, but that is all.

12. The submission that Mr Khandeparkar for Petitioner makes is that there is no possibility at all of Gajanan or his branch, i.e. Respondents Nos. 3 to 5, claiming to be project affected persons twice in one city. They have already obtained the benefit of an SRA

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redevelopment. Their rights must end there. Second, Ramachandra's name is on the certified list of occupants issued by MHADA. Sonakshi Constructions has a Permanent Alternate Accommodation Agreement of 28th January 2001 with Ramchandra. Gajanan's challenge to that agreement has failed. The mere pendency of a First Appeal against that final decree cannot operate as a stay. MHADA does not have, Mr Khandeparkar submits, any right to disregard these facts including, most importantly, the inclusion of Ramchandra's name on the MHADA- certified list of occupants and the fact that there is a Permanent Alternate Accommodation agreement between Sonakshi Constructions and Ramachandra. As opposed to this, Gajanan and his branch have only ever had at most a claim, and this has been dismissed. There is only a First Appeal. There is no adjudication whatsoever in their favour.

13. Of particular relevance is what we find in the reasoned order and judgment dated 27th January 2016 of the City Civil Court while dismissing Gajanan's Suit. Paragraphs 18, 21 and 22 read thus:

"18. P.W.1 Kiran Baburao Dhonde has reiterated almost all the facts in his affidavit of evidence as averred in the plant. During cross examination, he has admitted that he is unable to tell the name of the landlord. After perusal of rent receipt (Exh.10), P.W.1 Kiran Dhonde also unable to tell the person whose signature was there on rent receipt (Exh.10). He has further admitted that he is not having any rent receipt in his possession except the rent receipt (Exh.10). He has further categorically admitted that property mentioned at address of original plaintiff was developed under SRA scheme and Room No.402 was

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allotted to the original plaintiff under SRA Scheme. He has further admitted that prior to the allotment of the premises, the original plaintiff was residing in hutment. He has further admitted that name of original plaintiff was included in Voter List of Malad when he shifted there. He has further admitted when he came to know about dismantling of the suit premises, Defendant Nos.2 to 4 were residing in transit accommodation. He has further admitted that they have not challenged the occupants list. He has further categorically admitted that father of Defendant Nos.3 & 4 was residing in the suit premises in the year 1979 and since then father of Defendant Nos.3 and 4 had paid rent of the suit property. He has further categorically admitted that Defendant Nos.2 to 4 were continuously residing at Dadar.

He has further admitted that original plaintiff was residing at Malad prior to getting room under SRA scheme at Malad. Thus, it is crystal clear from the admission given by this witness that he does not know who has signed the rent receipt (Exh.10) which is produced on record. He has categorically admitted that name of the landlord is also not mentioned in the rent receipt (Exh.10). Therefore, there is no evidentiary value available to the rent receipt relied upon by the plaintiffs. He has specifically admitted that original plaintiff was residing at Malad. He has categorically admitted that father of Defendant Nos. 3 & 4 was residing in the suit premises in the year 1979 and the original plaintiff was residing at Malad. He has also admitted that Room No.402 was allotted to the original plaintiff under SRA Scheme as slum dweller. Therefore, his evidence is not enough to show that original plaintiff was continuously residing in the suit premises and the original plaintiff has not challenged list of occupants/tenants prepared by MHADA. Hence, his evidence is not sufficient to show that

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original plaintiff was in occupation of the suit premises on the cut off date i.e. 13.6.1996 to show that he was in possession of the suit premises.

21. The plaintiffs have contended that agreement executed by Defendant No.1 in favour of Late Ramchandra dated 28.1.2001 placed on record at Exh.11 is void. However, fact remains that the plaintiffs have not challenged certified list of occupants/tenants prepared by MHADA wherein father of Defendant Nos. 3 & 4 was held eligible for permanent alternate accommodation in lieu of the suit premises, therefore, it cannot be said that said agreement is void.

22. D.W.1 Jayesh Shah has also reiterated almost all the facts in his affidavit of evidence as averred in the Written Statement. Learned Advocate for the plaintiffs has cross- examined him at considerable length but nothing has been brought on record except denial. In his cross examination conducted by Defendant No.3 he has admitted that Defendant No.1 entered into agreement with eligible occupants as per list, therefore, Defendant No.1 entered into agreement with Late Ramchandra Hatkar. He has further admitted that in Para-4 of the agreement, it is mentioned that in case if Ramchandra Ramkrishna Hatkar expired then his Legal Representatives will entitle for new accommodation. Thus, according to him Defendant No. 1 entered into agreement with Late Ramchandra Hatkar as his name is shown in certified list of occupants by MHADA and who was held eligible for permanent alternate accommodation in lieu of the suit premise. Defendant No.1 has relied upon Declaration cum Indemnity executed between Late Ramchandra Hatkar and Defendant No.1 which is placed on record at Exh.17. No doubt, they have

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executed Declaration cum Indemnity however, name of Late Ramchandra was shown as occupant in list of occupants as who was held eligible for entitlement of permanent alternate accommodation in lieu of the old premises. This list has not been challenged by the plaintiffs, therefore, Declaration cum Indemnity executed by Late Ramchandra and Defendant Nos. 2 to 4 will not come in any way to disentitle the claim of Defendants Nos.2 to 4 for getting permanent alternate accommodation in lieu of the suit premises. Defendant No.1 has produced true copy of the order passed by the Hon'ble Bombay High Court dated 12.2.2007 in Appeal From Order No.12 of 2007 at Exh.19. It is observed in Para 3 & 4 as under:-

3. The appellants shall not create any third party right, title, interest in respect of the room No.204, which is presently occupied by the respondents, even if vacated by the respondents by shifting in the transit accommodation.

4. It is made clear that this arrangement is arrived at between the parties without prejudice to the rights and contentions in the present proceeding or suit pending before the lower court."

14. This is the uncontroverted evidence on record as appreciated by the City Civil Court. It is true that this is the subject matter of the First Appeal and that is yet pending a final decision. But we note these findings at this stage not with a view to render a final order on the First Appeal but to underscore the point that Gajanan's branch has obtained absolutely no order and has established nothing at all in support of the case that Gajanan and his family have rights in respect of the building at Dadar.

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15. The developer and MHADA should both be in a neutral position. Neither should adopt a partisan approach and side with either of these branches. In the Writ Petition, we are concerned with the actions of the public authority, namely MHADA. We are unable to see how MHADA can possibly take the position that it will not direct the developer to put the Petitioners into possession of room No. 204 merely because there is a First Appeal pending. It is for Gajanan's heirs, Respondents Nos. 2 to 5 to get an order of the Court restraining MHADA from putting the Petitioners in possession (and directing Sonakshi Constructions to do so).

16. We mould the interim relief in the following manner, one that we believe preserves the rights of all parties and balances competing equities:

(a) We appoint the Court Receiver, High Court, Bombay as the Receiver to take possession of Room No. 204 Om Shanti Building, Harishchandra Manik Patel road, Dadar West, Mumbai 400 018 on FP No. 676 of TPS IV Mahim Division.

(b) The Court Receiver will put the Petitioners jointly and severally into possession of these premises as agents of the Court Receiver but without payment of royalty.

(c) All rights and contentions as between the two branches are expressly kept open.

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(d) Sonakshi Constructions is required to vacate Room No 204 within one week from today. There is no possibility at all of Sonakshi Constructions using these premises for their own purposes.

      (e)    The Petitioners will vacate the leave and license
             temporary       alternate      premises      at   Worli    against
             possession      of     Room          No.   204    and     Sonakshi

Constructions will not be required to continue payment of license fees for the temporary alternate accommodation premises thereafter.

(f ) The possession of the Petitioners in Unit No. 204 of Om Shanti Building will necessarily be subject to final orders in this Writ Petition as also in the First Appeal.

17. An Affidavit of Service on Sonakshi Constructions is to be filed by day after tomorrow, 30th March 2022.

18. We take the liberty of tagging the First Appeal along with this Writ Petition. We request that the necessary administrative orders be obtained not only clubbing those matters but also assigning both matters to a single Court.

19. Since the record indicates that Sonakshi Constructions is using room No. 204 as a office cum go-down, we have no doubt that some work will be required to render it habitable as a residence. For

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that purpose, we list the matter for compliance on Friday, 1st April 2022.

20. The Petitioners will give fresh notice to Respondent No. 6.

(Madhav J. Jamdar, J)                                 (G. S. Patel, J)





                             28th March 2022