Bombay High Court
Roshanlal Jain vs M.H.A.D.A.And 2 Ors. And Arya Builders ... on 6 September, 2024
Author: M S Sonak
Bench: M. S. Sonak
Prakash Roshanalal Jain and anr. v Maharashtra
2024:BHC-OS:13770-DB
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
Darshan Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 118 OF 1994
1. ROSHANLAL S. JAIN,
(Deleted as deceased)
1a) PRAKASH ROSHANLAL JAIN,
Age - 47 years,
Room No. A/9, Shree Ambika
Ashish CHS., Chedda Road, Near
Joshi High School, Saraswat
Colony, Dombivali East, Thane,
Maharashtra - 421201 ...PETITIONER NO.1a
1b) SURESH ROSHANLAL JAIN,
Age - 50 years,
A-9, Jai Ambika Ashish CHS.,
Chedda Road, Near Joshi High
School, Saraswat Colony,
Dombivali East, Thane,
Maharashtra - 421201 ...PETITIONER NO.1b
~ VERSUS ~
1. MAHARASHTRA HOUSING & AREA
DEVELOPMENT AUTHORITY,
a statutory body, having its office
inter alia at Griha Nirman Bhavan,
Bandra East, Bombay-400 051.
2. STATE OF MAHARASHTRA,
through the Secretary to the
Government, Housing and Special
Assistance Department, Government
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of Maharashtra, having his office at
Mantralaya, Madam Cama Road,
Bombay-400032.
3. VARSHA CO-OPERATIVE HSG SOC LTD,
Griha Nirman Bhavan, Bandra (E),
Bombay-400 051.
4. RAGHU DANNAPA HEGDE,
Indian Inhabitant, adult, aged 38
years, occupation business, residing
at Vaardaan Apartment, 1st floor,
Near Shrikrishna Hotel, Unnat Nagar,
S.V. Road, Goregaon West, Mumbai -
400 062. ...RESPONDENTS
WITH
CHAMBER SUMMONS NO. 275 OF 2015
IN
WRIT PETITION NO. 118 OF 1994
1. ARYA BUILDERS & DEVELOPERS,
Through its partner Mr. Shripad
Joshi, A partnership Firm having
address at 403, Vatsalya Deep CHS,
V.B. Phadke Marg, Mulund (East),
Mumbai- 400081. ...APPLICANT
~ IN THE MATTER BETWEEN ~
1. ROSHANLAL S. JAIN,
an Indian inhabitant of Mumbai,
aged about 48 years, Unemployed,
residing at Building No.82, Room
No.2835, Nehru Nagar, Kurla East,
Mumbai - 400 024. ...PETITIONER
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~ VERSUS ~
1. MAHARASHTRA HOUSING & AREA
DEVELOPMENT AUTHORITY,
a statutory Body, having its officer at
Griha Nirman Bhavan, Bandra East,
Mumbai- 400 051.
2. STATE OF MAHARASHTRA,
through the Secretary of the
Government, Housing and Special
Assistance Department, Government
of Maharashtra, having his office at
Mantralay, Madam Cama Road,
Mumbai-400 032
3. UNNAT NAGAR VARSHA CO. OP.
HOUSING SOCIETY LTD.,
A society registered under
Maharashtra Co-Op Societies Act,
1960 having address at C.T.S. No.
319, Opp. Pathkar Collage, S.V.
Road, Goregaon (East), Mumbai -
400 064. ...RESPONDENTS
WITH
WRIT PETITION NO. 706 OF 2023
1. UNNAT NAGAR VARSHA CO-OPERATIVE
HOUSING SOCIETY LTD.,
a registered Housing Society having
its Registered Office at Chawl
No.108/864, Pratiksha Nagar
Sion, Koliwada, Mumbai - 400022 ...PETITIONER
~ VERSUS ~
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Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
1. MAHARASHTRA HOUSING AND AREA
DEVELOPMENT,
Authority (MHADA)
having its Head Office at :
Grihanirman Bhavan, Bandra (E),
Mumbai -400051.
2. THE GOVERNMENT OF MAHARASHTRA,
Through the Secretory to the
Government Housing & Special
Assistance Department, Mantralaya,
Mumbai - 400032.
3. ROSHANLAL JAIN,
Adult, Indian Inhabitant
Residing at Building No.82,
Room No.2835, Nehru Nagar
Kurla (E), Mumbai - 400024
Vide its constituted Attorney
Vinay J Deshlahra
Having its address at A/9,
Shree Ambica Ashish CHS,
Chedda Road, Saraswat Colony
Near Jyoti High School,
Dombivali (E), Thane. ...RESPONDENTS
A PPEARANCES
FOR THE PETITIONER IN Adv B. P. Pandey, a/w Adv.
WP/118/1994 AND FOR Ridhima Mangaonkar, i/b
RESPONDENT NO.3 IN Ridhima Mangaonkar.
WP/706/2023
FOR THE RESPONDENT- Mr P. G. Lad, a/w Ms Sayli Apte,
MHADA Ms Shreya Shah.
FOR RESPONDENT-STATE IN Ms Uma Palsuledesai, AGP.
WP/118/1994
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Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
FOR RESPONDENT-STATE IN Ms Usha Rahi, AGP.
WP/706/2023
FOR RESPONDENT NO.1 Mr T. D. Deshmukh.
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 02 September 2024
PRONOUNCED ON : 06 September 2024
JUDGMENT (Per M S Sonak J):
-
1. Heard learned counsel for parties.
2. These petitions were heard for some time on 26 August
2024. However, since neither the petitioner's representatives
in Writ Petition No. 706 of 2023 nor their advocates appeared,
we posted this matter for further hearing on 02 September
2024 under the caption part-heard to give them an additional
opportunity.
3. Again, on 02 September 2024, neither the petitioner's
representatives in Writ Petition No. 706 of 2023 nor their
advocates chose to appear. Therefore, the final hearing in both
petitions and miscellaneous proceedings therein was
concluded, and matters were reserved for orders.
4. Mr Pandey, learned counsel for the petitioner in Writ
Petition No. 118 of 1994 and for respondent No.3 in Writ
Petition No. 706 of 2023, submitted that the petitioner's
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
accommodation on the Maharashtra Housing and Area
Development Authority's ("MHADA") land was demolished by
the MHADA in January 1977. The petitioner was assured of
an alternate plot. However, despite such assurance, since no
plot was forthcoming, the petitioner instituted Writ Petition
No. 3271 of 1988 in this Court.
5. Mr Pandey submits that during the pendency of the
petition, the State Government vide G.R. dated 16 April 1992
directed MHADA to allot a plot of land measuring 7000 sq. ft.
bearing survey No. 319 situated at Unnat Nagar, Goregaon
West, subject to specific terms and conditions. Mr Pandey
submits that accordingly, the petitioner withdrew Writ Petition
No. 3271 of 1988 on 21 April 1992 by placing G.R. dated 16
April 1992 on record.
6. Mr Pandey submits that despite the above allotment vide
G.R. dated 16 April 1992, since the MHADA was not handing
over the possession of the plot to the petitioner, the petitioner
instituted Writ Petition No. 118 of 1994. Mr Pandey states that
in the affidavits filed by the State Government, the State has
defended the allotment favouring the petitioner. Even MHADA
agreed that any direction under Rule 16 from the State
Government was binding on MHADA, and therefore, MHADA
left the matter to the Court.
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
7. Mr Pandey quite fairly pointed out that there were some
settlement talks between the petitioner and the 3rd
respondent - Society. The consent terms were also signed on
15 January 2023. Still, they could not be filed in Writ Petition
No. 118 of 1994 because the MHADA was not prepared to
give its approval for the allotment of 12 residential flats to the
members respondent No.3 - Society in the building that the
petitioner was to put up on the allotted plot. Mr Pande
submitted that otherwise, the 3rd respondent has no right,
title or interest to claim the plot allotted to the petitioner. He
submitted that the accompanying Writ Petition No. 706 of
2023 instituted by the 3rd respondent is only to direct the
State Government or MHADA to consider its representation.
8. For all the above reasons, Mr Pandey submitted that the
rule may be made absolute in Writ Petition No. 118 of 1994
and Writ Petition No. 706 of 2023, which was instituted after
inordinate delay and latches may be dismissed.
9. Ms Uma Palsuledesai learned AGP for the State in Writ
Petition No. 118 of 1994, referred to 3 affidavits filed on
behalf of the State Government. She submitted that the
circumstances in which G.R. dated 16 April 1992 was issued
had been explained in the affidavits filed on 27 January 1994
and 31 March 1994. She also referred to the affidavit filed on
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
01 September 2009 and left it to the Court to make suitable
orders.
10. Mr Lad, learned counsel for the MHADA, tried to
contend that the entire plot of 7000 sq. ft. was not allotted to
the petitioner, but only part measuring 2800 sq. ft. was
allotted. Finally, he referred to the MHADA's affidavit and
submitted that MHADA submits to the order of this Court. Mr
Lad also referred to the Maharashtra Housing and Area
Development (Disposal of Land) Regulations, 1982
("MHADR") and submitted that any directive under
Regulation 16 was binding upon MHADA.
11. Despite the opportunity, neither a representative nor an
advocate on behalf of the third respondent was present.
Accordingly, we have considered the averments made in Writ
Petition No. 706 of 2023 instituted by the third respondent for
deciding two petitions.
12. The rival contentions now fall for our determination.
13. The record shows that the petitioner constructed and
carried on his business under the name and style of 'Mahavir
Griha Vastu Bhandar' on a plot of MHADA from 1969 to 1977.
In January 1977, the authorities demolished these premises.
They assured the petitioner that he would be allotted a plot to
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
build the new premises in place of the earlier demolished
premises.
14. The petitioner entered into correspondence with
MHADA and the State Government for such allotment. Finally,
the petitioner instituted Writ Petition No. 3271 of 1988 in this
Court seeking appropriate writs to the State Government and
MHADA for allotment of a plot upon which the petitioner can
construct the alternate premises.
15. During the pendency of Writ Petition No. 3271 of 1988,
the State Government, vide G.R. dated 16 April 1992, directed
the Chief Officer of Bombay Housing and Area Development
Board (MHADA) to allot the petitioner a plot of land
measuring 7000 sq. ft. at survey No. 319, Unnat Nagar, Swami
Vivekanand Road, Goregaon (West). This G.R. refers to the
sanction of the State Government and directs the Chief Officer
of MHADA to allot the said plot to the petitioner. Based upon
this G.R., the petitioner withdrew Writ Petition No. 3271 of
1988 on 21 April 1992 by placing G.R. dated 16 April 1992 on
record.
16. No dispute was raised that this G.R. dated 16 April 1992
amounts to a direction under Regulation 16 of the MHADR.
Regulation 16 provides that notwithstanding anything
contained in these Regulations, the plots reserved for
amenities or purely commercial purposes in any layout
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
prepared by the Authority in a land situated in any of the nine
Urban Agglomerations specified in Regulation 16 shall be
disposed of in accordance with the directions of the State
Government. Similarly, the disposal of not more than two per
cent of the plots reserved for residential use and to be allotted
to individuals [or to the cooperative housing societies,
whether proposed or registered] located in such layouts as
aforesaid shall also be done in accordance with the directions
of the State Government.
17. Mr Lad, learned counsel for the MHADA, admitted the
directives issued by the State Government under Regulation
16 of the MHADR were binding on the MHADA. Mr Lad's
contention about the G.R. dated 16 April 1992 allotting the
petitioner only 2800 sq. ft. area cannot be accepted. His
contention was based upon the condition No.2 in the G.R.
dated 16 April 1992. Condition No.2 of the G.R. dated 16
April 1992 reads as follows:-
"2. Out of 100 x 70 = 7,000 sq. ft. land at S.No. 319,
Unnat Nagar, Goregaon 70 x 40 = 2800 sq. ft. land should
be allotted as an alternative land without any cost and the
remaining land should be allotted at current market price.
The aforesaid land should be allotted to Shri Roshanlal
Jain after taking proper measurement."
18. The plain reading of the above condition makes it clear
that the area of the plot allotted to the petitioner was 7000 sq.
ft. at survey No. 319, Unnat Nagar, Goregaon (West). Out of
this, an area of 70 x 40 = 2800 sq. ft. was directed to be
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
allotted as an alternative land without any cost. However,
condition No.2 clarifies that the "remaining land should be
allotted at current market price".
19. Accordingly, condition No.2 of the G.R. dated 16 April
1992 clarifies that the allotment was for a plot of land
measuring 7000 sq. ft. However, the petitioner should not be
charged for the area of 2800 sq. ft. The petitioner should be
required to pay the current market price for the balance area.
Thus, the contention that only a plot of 2800 sq. ft. was
allotted to the petitioner is incorrect.
20. Pursuant to the orders dated 11 March 1994, 15 March
1994 and 04 April 1994 and other orders, at least three
affidavits dated 27 January 1994, 31 March 1994 and 18
September 2009 came to be filed in this petition. In the
affidavits dated 27 January 1994 and 31 March 1994, the
State Government has stood by its G.R. dated 16 April 1992.
The State Government explained that earlier, the plot in
question had been allotted to Unnat Nagar Varsha Co-
operative Housing Society Ltd. Still, afterwards, this
allotment was cancelled by order dated 16 April 1992. A
decision was made to allot this plot to the petitioner, and a
direction was even issued under Regulation 16 of the MHADR
to MHADA. Even the MHADA's representation was finally
decided by the Government on 29 March 1994 by deciding to
Prakash Roshanalal Jain and anr. v Maharashtra
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WP-118-1994 & ors (F).docx
allot the plot admeasuring 7000 sq. ft. to the petitioner,
thereby upholding the earlier order dated 16 April 1994, and
the MHADA was directed to allot some other plot to the Unnat
Nagar Varsha Co-operative Housing Society Ltd.
21. The affidavit dated 18 September 2009 filed by Mr Dilip
Shinde, Deputy Secretary to Government, Housing
Department, refers to the compromise between the petitioner
and the 3rd respondent, in which the petitioner was to
accommodate 12 members of the 3rd respondent. Paragraph
No. 2 of this affidavit states that the MHADA was required to
examine the compromise terms/consent terms and convey
their views to the Government. The affidavit states that this
proposal could not be taken to its logical conclusion, possibly
because the MHADA disagreed. Even the MHADA left the
decision to the Court, given the directives issued by the State
Government to MHADA under Regulation 16 of the MHADR.
22. In Writ Petition No. 706 of 2023, which was instituted
after about 30 years from the cancellation of the allotment in
favour of the petitioner in the said petition, the prayers are to
direct the MHADA to dispose of the petitioner's
representations dated 07 September 2021 and 09 October
2021 and further for a direction to MHADA and State of
Maharashtra to execute lease agreement of plot in CTS No.
319 forthwith in favour of the petitioner society.
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
23. The prayer for executing any agreement for a plot lease
is entirely misconceived. In 1992, the allotment favouring the
Unnat Nagar Varsha Co-operative Housing Society Ltd. was
cancelled. No record of this Society filing any petition to
challenge such cancellation exists. Accordingly, by instituting
a petition in 2023 without even questioning the cancellation
of 1992, no relief in terms of prayer clause (b) of Writ Petition
No. 706 of 2023 can be granted. Besides being misconceived,
such prayer is barred by inordinate delay and latches.
24. Regarding prayer clause (a) in Writ Petition No. 706 of
2023, Mr Pandey fairly referred to consent terms that were
never filed. There is a reference to these consent terms in the
State Government's affidavit. According to these consent
terms, the plot was to be allotted to Roshanlal Jain and in the
building to be constructed on such plot, 12 tenements were to
be allotted to the members of Unnat Nagar Varsha Co-
operative Housing Society Ltd. These consent terms could not
filed because there was no approval from MHADA for this
compromise proposal.
25. On considering the material on record, including the
G.R. dated 16 April 1992, the affidavits filed on record, the
fact that the petitioner Roshanlal Jain withdrew Writ Petition
No. 3271 of 1988 based upon G.R. dated 16 April 1992, Writ
Petition No. 118 of 1994 will have to be allowed. MHADA will
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
have to be directed to place the petitioner (legal
representatives of Roshanlal Jain) in possession of the plot of
the land measuring about 7000 sq. ft. on survey No. 319,
Unnat Nagar, Goregaon (West), within three months from
today by executing necessary documents subject to the
petitioner paying the various amounts stipulated in G.R. dated
16 April 1992. We order accordingly.
26. Similarly, considering the consent terms executed by
Roshanlal Jain and Unnat Nagar Varsha Co-operative Housing
Society Ltd., based upon which no consent order could be
made because there was no approval from MHADA, we direct
MHADA to consider within two months whether the approval
can be granted for accommodating 12 members of Unnat
Nagar Varsha Co-operative Housing Society Ltd. in the
building that the petitioner would construct on the plot at
Unnat Nagar. If the MHADA agrees to this proposal, the
MHADA should issue necessary orders or stipulate conditions
required in its allotment orders.
27. Chamber Summons No. 275 of 2015 does not survive
and is liable to be dismissed. The applicant has shown no
right to the plot in question. Neither the applicant nor his
Advocates have bothered to appear even though the matter
was on the board and adjourned after part hearing. The
applicant has never challenged the G.R. dated 16.04.1992 by
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
filing any petition, which is the foundation of Roshanlal's
petition.
28. Accordingly, both the Writ Petitions are disposed of by
directing the following:-
(a) The MHADA and the State Government are
directed to take all necessary steps to allot (in terms of
G.R. dated 16.4.1992 ) and place the petitioner in
possession of the plot measuring 7000 sq. ft. on survey
No.319 at Unnat Nagar, Swami Vivekanand Road,
Goregaon (West) within three months from today by
executing the necessary documents but subject to the
petitioner paying the amounts stipulated in G.R. dated
16 April 1992 (Exhibit 'B' to the petition) and complying
with the other conditions stipulated in G.R. dated
16.04.1992.
(b) The MHADA must consider the Unnat Nagar
VCHS's proposal for the allotment of 12 tenements in
the building that the petitioner (legal representative of
Roshanlal Jain) would construct in the above plot as
stipulated in the consent terms dated 15 January 2003
(also referred to the affidavit of Shri Dilip Shinde,
Deputy Secretary to Government, Housing Department,
filed on 18 September 2009) in accordance with the law
and on its merits within three months and communicate
its decision to the parties within that period.
(c) Chamber Summons No. 275 of 2015 in W.P. No.
118/1994 is dismissed.
29. There shall be no orders as to the costs.
Prakash Roshanalal Jain and anr. v Maharashtra
Housing & Area Development Authority and ors.
WP-118-1994 & ors (F).docx
30. All concerned must act on an authenticated copy of this
order.
(Kamal Khata, J) (M. S. Sonak, J)
Signed by: Darshan Patil
Date: 06/09/2024 15:30:12
