Kalawati Sham Sidgiddi Through ... vs The Maharashtra Housing And Area ...
2023 Latest Caselaw 8453 Bom

                                                                          913-OSWP-2464-2022.DOC




                                                                                                  Shephali



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION
                                       WRIT PETITION NO. 2464 OF 2022


                    Kalawati Sham Sidgiddi through her POA Anand                        ...Petitioner
                    Sham Sidgiddi
                         Versus
                    The    Maharashtra      Housing     and  Area                   ...Respondents
                    Development Authority & Ors


                    Ms Seema Sarnaik, i/b Sangeeta S Salvi, for the Petitioner.
                    Mr SB Gore, AGP, for State.
                    Ms Manisha Jagtap, for MHADA.

SHEPHALI
SANJAY
MORMARE                                           CORAM     G.S. Patel &
Digitally signed
by SHEPHALI
                                                            Kamal Khata, JJ.

SANJAY MORMARE Date: 2023.08.22 DATED: 21st August 2023 09:44:35 +0530 PC:-

1. On 5th July 2022, over a year ago, Maharashtra Housing and Area Development Authority ("MHADA") sought time to file a Reply. That has not yet been done. The order of 5th July 2022 prima facie expressed a view that there was substance in the Petitioner's case. Until the next date MHADA was not to consider the Petitioner as ineligible, unauthorised or as a trespasser and was not to take any coercive steps against the Petitioner pursuant to the communication impugned in this Petition. That communication is dated 22nd September 2017 and a copy is at Exhibit "A" with a

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translation at page 38. The Petitioner was directed to continue paying arrears of rent at the rate of Rs.500/- per month. Ms Sarnaik tells us that this is being done.

2. Rather than simply adjourn the matter for an Affidavit, we will prefer to more specifically identity the issue that arises. Ms Sarnaik points out that the present Petitioner was herself, the 6th Petitioner in Writ Petition No. 662 of 1990. The cause title of that Petition is to be found at pages 68 and 69. That is part of the order of 30th July 1993 by a learned Single Judge of this Court, SH Kapadia J (as he then was). This is the very same order that is referred to in the 5th July 2022 order referred to above.

3. The case of the petitioners in the 1990 Writ Petition, including the present Petitioner, was that they were allotted premises in May 1970 at 129/3780, Kannamwar Nagar No.II, Vikhroli (East), Mumbai 400 083 and this was pursuant to a notice dated 13th May 1970 under Section 22 of the erstwhile Repairs and Reconstruction Board Act, 1960. By that notice, the petitioners were asked to vacate the premises. Those premises were an old chawl known as Jamanadas Vasanji Chawl at 91/93, Kamathipura, Mumbai. That Chawl had 70 tenants. The petitioners contended before the learned Single Judge that they have been paying rent to the Housing Board from 1970 to 1979. They then received a notice of 12th February 1990 saying that the old building had been taken up for repairs and since that building had been acquired for road widening, the petitioners were to vacate. This was challenged before

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the learned Single Judge. There was, however, no challenge to the acquisition proceedings.

4. It was pointed out at that time by Ms Sarnaik that the tenancy was not in dispute. There was indeed even an Agreement with the Housing Board. If the property was acquired, it was submitted, the petitioners should be allowed to continue transit accommodation until permanent alternate accommodation was made available.

5. After considering the rival submissions, in paragraph 5 (pages 74 and 75) the learned Single Judge held as follows:

"5. I find considerable merit in the arguments advanced on behalf of the petitioners. The petitioners were the tenants of the old building. They were offered transit accommodation under the provisions of the Act, 1969. They were informed by the Board that their premises in the old building were needed for repairs and they were kept in the transit accommodation on the basis that as and when the building was reconstructed, they would be given premises in the reconstructed building. The said tenants were never informed of the acquisition for road widening of their old building by the Corporation. In the circumstances, the petitioners are right in contending that even if old building has been acquired by the Corporation which acquisition they have not challenged, they were entitled to suitable alternate accommodation under the provisions of the said Act, 1976 and that till such time a suitable accommodation were offered to them in accordance with law, they should not be evicted. The petitioners vacated their old building on the solemn undertaking that they would be given premises in the reconstructed building and if the building is acquired for the public purpose, the

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petitioners cannot be on streets, which is purported to be done by the impugned notice dated 12th February 1990. Accordingly, the said impugned notice is set aside. It is made clear that the petitioners are entitled to continue to occupy transit accommodation which they are presently occupying till suitable accommodation is given to them in accordance with the provisions of Maharashtra Housing & Area Development Act, 1976."

6. What seems to have happened thereafter is that by the notice of 22nd September 2017 impugned in the present Petition, and apparently based on some sort of a report by the Executive Engineer, it has been contended that the continued occupation by the Petitioner is unauthorised or illegal or that she is a trespasser.

7. Prima facie it is difficult to reconcile this statement or assertion in the impugned notice with the finding rendered in paragraph 5 of the judgment of the learned Single Judge and quoted above.

8. In these papers we do not have a copy of the report referred to in the impugned notice. Ms Sarnaik points out that the Petitioner's son filed an RTI query (page 86) seeking a copy of that report. The answer then was that the papers were not traceable. An appellate order directed that the papers be traced and the report be made available. That has not been done.

9. We require, therefore, the Affidavit in Reply of MHADA to address this issue precisely, i.e., how, despite the order of the learned Single Judge of 30th July 1993, MHADA has purported to

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say that the Petitioner is a trespasser or that her occupation is illegal or unauthorised. We will need to see the report of the Executive Engineer and an explanation must be made available on Affidavit to this effect. A generalised Affidavit will not suffice. That Affidavit is to be filed and served on or before 28th August 2023 as a final opportunity. If not done, we will be constrained to proceed on the footing that there is in fact no answer to the Petition.

10. List the matter on 29th August 2023.

 (Kamal Khata, J)                                           (G. S. Patel, J)





                               21st August 2023