Bombay High Court
Tarun Mahendra Patel vs Amool Shivaji Rokade on 19 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:3205
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.558 OF 2024
IN
APPEAL FROM ORDER NO.1049 OF 2023
...
Tarun Mahendra Patel & Anr. ....Applicants
IN THE MATTER BETWEEN
Amool Shivaji Rokade ....Appellant
V/S
Tarun Mahendra Patel & Anr. ....Respondents
...
Mr. Mayur Khandeparkar i/b Mr. Mehul A. Shah for the
Applicants/Respondent Nos.1 and 2.
Ms. Shaila V. Pathak for Appellant.
Mr. Zenobia Irani for Respondent No.7.
...
CORAM: SANDEEP V. MARNE, J.
DATE : JANUARY 19, 2024.
P.C.:
1 The Interim Application is filed seeking modifications/
clarifications of the order dated 20 December 2023 passed in Appeal
from Order No.1049 of 2023.
2 Mr. Khandeparkar, the learned Counsel appearing for the
Applicants/Original Respondent Nos.1 and 2 would submit that three
clarifications/modifications are required in the order dated 20 December
2023.
3 Firstly he would submit that under provisions of section 91(5) of
the Maharashtra Housing and Area Development Act, 1976 (MHAD Act),
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a cessed structure cannot be demolished without first obtaining No
Objection Certificate (NOC) from the Maharashtra Housing and Area
Development Authority (MHADA). He would submit that clause 3 of
paragraph 5 of the order dated 20 December 2023 contemplates vacation
of the suit premises by Applicants before issuance of NOC by MHADA.
I have gone through the provisions of section 91(5) of the MHAD Act.
Apart from applicability section 91 it appears that the prohibition under
sub section 5 of section 91 is on sanctioning of plans for construction of
the building by the Municipal Corporation without MHADA's NOC. The
prohibition is not for demolition of the structure. Therefore there cannot
be any embargo of issuance of NOC by MHADA for the purpose of
vacation of the premises of the Applicants. Therefore no clarification/
modification is required in respect of directions in para 5(3) of the order.
4 Secondly, Mr. Khandeparkar would submit that in the Draft
Permanent Alternate Accommodation Agreement (PAAA) shared by the
Developer, what is proposed to be granted is area less than 2500 square
feet carpet contrary to direction of this Court. Ms. Pathak, the learned
Counsel appearing for the Original Appellant (Developer) would fairly
submit that necessary modifications would be effected in the Draft PAAA
so as to provide for handing over of alternate accommodation
admeasuring 2500 square feet carpet area to the Applicants. She would
also submit that the PAAA would be in tune with Memorandum of
Understanding (MoU) dated 25 August 2015 executed with Smt.
Anandiben Patel.
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5 The third clarification sought by Mr. Khandeparkar is with respect
to payment of transit rent being made subject to the outcome of the
proceedings. He would submit that so far no order is passed for
ejectment of the Applicants from the suit premises and therefore
Applicants were otherwise entitled to occupy the suit premises and in
that view of the matter, the transit rent received by them cannot
subsequently be directed to be refunded in any proceedings. He would
rely upon the judgment of the Division Bench of this Court in Vipul
Fatehchand Shah vs. Nav Samir Co-operaive Housing Society in
Commercial Appeal (L) No.25162 of 2023 decided on 6 October 2023
and as well as order passed by this Court in Shashidhar P. Nair vs.
Randhir Harshadrai Joshi in Appeal from Order (Stamp) No.31520 of
2023 decided on 10 November 2023.
6 Ms. Irani, the learned Counsel appearing for Defendant No.7 would
submit that there is no objection to the clarification with regard to the
payment of transit rent subject to the condition that mere payment of
transit rent to the Applicants should not prejudice the rights or claims of
Defendant No.7 in any proceedings. Thus it is clarified that the payment
of transit rent to Applicants shall not be subject to the outcome of any
proceedings. But at the same time payment of transit rent to the
Applicants shall not prejudice the rights and claims of Defendant No.7 in
any of the proceedings.
7 With the above clarification, the Interim Application is disposed of.
(SANDEEP V. MARNE, J.)
