Sudha Ramchandra Hatkar And 2 Ors vs The State Of Maharashtra And 5 Ors
2023 Latest Caselaw 411 Bom

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 Amol



      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 Omkar K Shaikh, for the Petitioner.
 Mr Sukanta Karmakar, for Respondent No. 1.
 Ms Manisha Jagtap, for Respondent No. 2-MHADA.
 Mr Arshil Shah,with Vishal Raman, for Respondents Nos. 3 to 5.
 Mr Clive D'souza, for Respondent No. 6.
 Mr SK Dhekale, Court Receiver, is present.


                               CORAM      G.S. Patel &
                                          S.G. Dige, JJ.

                               DATED:     11th January 2023
 PC:-

1. This is a classic case that shows how some developers believe that they can continuously flout and not follow orders of this Court.

2. The matter has been pending since early 2021. That means that two years have passed since institution. There is still no compliance with our orders.

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3. The Petitioners seek that they be given possession of their promised flat No. 204 -- and possession in a habitable condition. The matter came before a Bench of which one of us, GS Patel J, was a member on 10th January 2022. We accommodated the 2nd Respondent, MHADA, and adjourned the matter. On 28th March 2022, we passed a detailed order that has since attained finality. First, we issued Rule. Then we set out the substance of the dispute. Paragraphs 1 to 12, the opening part of paragraph 13 (without its quotation) and paragraphs 14 to 20 read thus:

"1. Rule. Arguable questions arise. Respondents Nos. 1, 2 and 3 to 5 waive service. Hamdast permitted for service on Respondent No. 6.

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 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

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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 occupants 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.

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

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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 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 redevelopment. Their rights

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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 reads thus:

.........

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.

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,

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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.

(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

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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 an office cum go- down, we have no doubt that some work will be required to render it habitable as a residence. For that purpose, we list the matter for compliance on Friday, 1st April 2022.

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

4. On 1st April 2022 the following order came to be passed.

"1. The 6th Respondent, Sonakshi Constructions Pvt Ltd, is present through its partner, Mr Jayesh Shah. Their Advocate's Vakalatnama will be filed within one week.

2. Mr Shah gives instructions to Mr D'Souza, and confirms before us, that Unit 204 is not being used by Sonakshi Constructions either as an office or as a godown. This statement is noted.

3. Mr Khandeparkar refutes this statement.

4. We do not want a controversy. The Court Receiver is to visit Room 204 for the limited purpose of making a report as to the condition of the fat. That report should be

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placed before us next Friday. The matter will be listed on the supplementary board.

5. Mr Shah instructs Mr D'Souza to state that no third- party rights, encumbrances or alienation have been created in respect of Unit 204. This is noted.

6. Sonakshi Constructions says that it will require one month to vacate the premises and to move its articles from those premises. This is not unreasonable. We give time till 30th April 2022. The other reason to fix this date is that Sonakshi Constructions is paying the license fee every six months. The last renewal has been made till 30th April 2022. It would therefore be convenient to all concerned if we fix 30th April 2022 as the date on which Sonakshi Constructions will leave Room 204, and the Petitioners will leave the license premises and shift into Room 204.

7. This necessarily however means that Room 204 has to be made habitable in accordance with the specifications under the permanent alternate accommodation agreement signed with the Petitioners' father, Ramchandra before that date.

8. For the present, we list the matter for ascertaining the condition of flat 204, the following Friday, 8th April 2022.

9. As regards the contentions of Respondents 3 to 5, Mr Shah submits that they may wish to file an application in the First Appeal for fixing a royalty to be paid by the Petitioners for occupation of Room 204. We are not fixing the royalty. We are not either granting or refusing that liberty. Respondent 3 to 5 may take such steps as they are advised. All contentions are left open. We only note in this context that Respondent Nos. 3 to 5 have no civil proceeding for possession and their prayer for possession in the proceedings fled in the City Civil Court was deleted. If there is a prayer for possession in a suit they have fled in the

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Small Causes Court, then there is the question of exclusive jurisdiction and no such orders regarding possession can be made here.

10. Stand over to 8th April 2022, on the supplementary board, for orders."

5. On 8th April 2022, after the Receiver made a report, the Court passed the following order:

"1. The Court Receiver has made a report. It shows that the condition of Flat No 204 in Om Shanti Building, Harishchandra Manik Patel Road, Dadar (West) Mumbai 400 018 is indeed such that the flat is not in a habitable condition at all. Mr D'Souza accepts this and states that time will be required to put the flat into habitable condition. He says that this will be done by 30th June 2022.

2. This is of some consequence because the Petitioners are presently in leave and license transit premises at Worli. The license fees are being paid half yearly by Respondent No 6, Sonakshi Construction. The last payment of license fees has been till 30th April 2022. It will be for Sonakshi Construction to ensure that the license agreement is continued of the transit accommodation until possession of the Om Shanti building flat is made available.

3. We clarify that the Petitioners are not to be asked to shift to some other transit accommodation either and will be entitled to continue in their present transit accommodation at Worli.

4. The Court Receiver's report is taken on record.

5. List the matter on 4th July 2022 for compliance."

6. On 26th August 2022, a Division Bench then assigned this matter (SV Gangapurwala and Madhav J Jamdar JJ) was told that

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the developer had still not delivered possession. The developer said that his lawyer was unwell. The matter was adjourned.

7. On 14th September 2022, a Division Bench of Gangapurwala and RN Laddha JJ passed the following order:

"1. It is not disputed that the Court Receiver inspected room No. 204, Om Shanti Building, Harischandra Manil Patel Road, Dadar (West) and submitted a report.

2. It is agreed by learned counsel for the petitioner as well as learned counsel for the developer that room no. 204 is not in a habitable condition.

3. This court, under its order dated 1st April 2022, observed that room no. 204 has to be made habitable in accordance with the specifications under the permanent alternate accommodation agreement. This Court further under an order dated 8th April 2022, recorded that the said flat 204 is not in a habitable condition at all. It accepted statement of respondent no. 6 that the same would be made habitable by 30th June 2022.

4. Learned Counsel for respondent no. 6 submits that, respondent no. 6 could not make flat no. 204 in habitable condition because of non-supply of the electricity.

5. It is a duty of respondent no. 6 to hand over flat no. 204 in a habitable condition. Respondent no. 6 should have handed over possession of flat no. 204 by 30th June 2022. Two and half months have lapsed. Still the said flat is not in habitable condition as yet.

6. Respondent no. 6 shall supply all necessary documents required to BEST. The BEST shall consider documents supplied by respondent no. 6 and take decision on the application of respondent no. 6. BEST shall supply electricity to flat no. 204, may be

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temporarily, immediately.

7. We place the matter on 17th October 2022. We expect that respondent no. 6 shall make flat no. 204 in perfectly habitable condition by the said date."

(Emphasis added)

8. We emphasize the directions in paragraph 6. Since September 2022, this submission that BES&T is not supplying electricity as been going on and on. The same submission was made on 17th October 2022 and again is made today.

9. We are now told that four applications have been made to BEST. In fact, BEST granted the connection but not in the name of the developer but instead in the name of their lawyer. That is hardly the fault of the BEST. It is surely not too much to expect that a developer and builder will be able to correctly submit an application for an electricity connection. We cannot understand how this process of getting an electricity connection can be dragged on for months on end.

10. But to put the matter into sharper perceptive, we must consider what it is that this developer asks us to believe. First, it used the flat in question, Flat No 204, as a godown. This was a residential flat. That means water supply. That also means an electricity connection. It also means tiling, plumbing, ventilation and all the rest of it. None of this was done. When the Court stepped in, the builder stopped using it as a godown and cheerfully said that it was willing to deliver the flat -- in that unusable, inhabitable condition -- to the Petitioners. Meaning thereby that

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the builder expected the Petitioners to live in what used to be a godown -- sans electricity, water, plumbing, wiring, finishing works, etc. Finding that this would not work, one excuse after the other is being made. We are now told that it comes as a surprise to the developer that the flat requires finishing to put it in a habitable state. We are asked to accept the very great astonishment of this developer that this work requires an electricity connection. The developer is perplexed. It says it is 'ready' to deliver possession of the flat -- but without it being rendered fit for human habitation. That is apparently so cumbersome a task that weeks and months may go by without any result.

11. We are having none of it. This is nothing but this developer avoiding his contractual responsibilities and taking the Court for a ride. As to the public law element, we do not see how the Repair Board can sit idly by and take no action. This is not the function or remit of the statutory authority. It is not here to protect and defend builders. It is meant to protect persons like the Petitioners.

12. This flat has to be ready in all respects by 31st January 2023, including all finishing works, civil works, painting, plumbing, electricity and a drinking water supply from a municipal connection. There will not be one day's extension of time. The matter is to be listed on 1st February 2023 first on the supplementary board.

13. Should we find that the developer has not complied with this order, then apart from any proceedings that we may adopt in suo motu contempt, we will also be constrained to consider passing an

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order for enforcement including imposing a significant per day cost on the developer not only for the continued delay but for the past period lost. We will also consider other methods of securing the amount that is undoubtedly payable to the Petitioner as compensation. We may require that amount to be deposited until the Petitioner obtains an adjudication in a Court or we may consider, after hearing parties, making such an order ourselves.

14. List the matter first on the supplementary board on 1st February 2023. The matter is to be retained as part-heard.

 (S. G. Dige, J)                                             (G. S. Patel, J)





                               11th January 2023