Bombay High Court
Shree Shivai Seva Trust vs The State Of Maharashtra And Ors on 22 July, 2025
Author: A.S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:31732-DB
dtg 31-Apeal-481-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 481 OF 2013
WITH
CRIMINAL APPLICATION NO. 654 OF 2013
Shree Shivai Seva Trust ]
registered under the Bombay ]
Public Trust Act 1950 under ]
registration No.E-5421/Mumbai, ]
having its office at Shiv Sena ]
Bhavan, Ram Ganesh Gadkari Chowk, ]
Dadar, Mumbai - 400 028. ] ... Appellant/Applicant
V/s.
1. The State of Maharashtra ]
at the instance of GBCB, ]
CID, Mumbai c/o Public ]
Prosecutor, High Court (A.S.) ]
Mumbai.
2. Subhash Sadashiv Karkhanis ]
3. Sandhya Subhash Karkhanis ]
4. Vinayak Kulkarni ]
5. Milind Chitnis ]
6. Sangeeta Chitnis ]
7. Uday Kulkarni ]
All adults, Occ.:- Business, ]
Partners of M/s Popular Stock ]
and Share Services Limited, ]
Room No.8, Shivai Seva Trust, ]
1/6
::: Uploaded on - 29/07/2025 ::: Downloaded on - 02/08/2025 07:05:24 :::
dtg 31-Apeal-481-2013.doc
Shiv Sena Bhavan Path, ]
Dadar, Mumbai - 400 025. ]
8. The Competent Authority ]
C/o Deputy Collector ]
(Encroachment) Mumbai City, ]
Old Custom House, Shahid ]
Bhagat Singh Marg, 3rd Floor, ]
Mumbai - 400 001. ] ... Respondents
_______________________________________
Mr. Prashant Karande a/w Mr. Praful S. Pawar for Appellant/Applicant.
Smt. M.M. Deshmukh, A.P.P. for Respondent No.1 and 8-State.
Mr. Samir A. Vaidya for Respondent Nos. 2 to 7.
Officer:- Mr. Jagdish Panhale, P.I., EOW, Unit-8, Mumbai, present.
_______________________________________
CORAM : A. S. GADKARI AND
RAJESH S. PATIL, JJ.
DATE : 22nd July 2025.
JUDGMENT :
(Per : A.S. Gadkari, J.) :-
1) This Appeal under Section 11 of the Maharashtra Protection of
Interest of Depositors (in Financial Establishments) Act, 1999 (MPID Act), is
preferred by the landlord impugning Order dated 21 st February 2013, passed
in M.A. No. 33 of 2007 in MPID Special Case No. 5 of 2001 by the learned
Special Judge designated for MPID cases, Mumbai.
1.1) In an Application filed by the Appellant, terming the said
Application as Petition and the Appellant as the Petitioner, the learned
dtg 31-Apeal-481-2013.doc
Special Judge of the Special Court has passed the following Order :-
1) The Competent authority shall hand over the attached
tenanted premises room No.8 from the chawl to the Petitioner
for demolition, subject to following conditions:-
i) The petitioner shall provide to the competent authority
representing the investors, and the respondent No.2 a self-
contained flat of 250 sq. ft. (225 sq. ft. carpet area balcony of
25 sq. ft. ) on ground floor by entering into tripartite
agreement with respondent No.2 and the competent authority,
in terms of annexure letters dt. 15/7/2004, written consent
dated 1/8/2006 and the agreement dated 29/9/2006 annexed
to this Petition subject to condition that the minimum height
of the room will be 3.6 meters as per table 19 of Rule No. 38,
D.C. regulations for Greater Bombay, 1991, showing specific
flat to be allotted as per the sanctioned plan.
2) If the Petitioner is not in a position to provide permanent
alternate accommodation of 250 sq.ft. carpet area, he shall
provide to the competent authority the ground floor premises
for commercial use of such area as is available and shall pay
compensation for deficit area at the market rate, to be
determined after hearing the parties. However, there shall be
no concession in respect of minimum height & construction of
loft.
3) In the alternative, the Petitioner shall provide compensation
for permanent alternate accommodation of 250 sq.ft. of carpet
area of commercial use as per the market price prevailing now.
4) The application is thus allowed and stands disposed of subject
to conditions mentioned above.
dtg 31-Apeal-481-2013.doc
5) The new flat allotted shall remain under attachment in lieu of
the surrendered attached tenanted premises."
2) Heard Mr. Karande, learned Advocate for the Appellant, Smt.
Deshmukh, learned APP for Respondent Nos. 1 and 8 and Mr. Vaidya, learned
Advocate for Respondent Nos. 2 to 7. Perused entire record produced before
us.
3) It is an admitted fact on record that, the suit property was a
chawl/building, situated on F.P. No. 177, Building No. 256-E, N.C. Kelkar
Road, Dadar, Mumbai and was owned by the Appellant. While granting
permission to redevelop the said property, as contemplated under Regulation
33(7) of the Development Control Regulations for Greater Mumbai, 1991 (in
short, DCR, 1991), the competent Authority of the MHADA had specifically
mentioned the following condition in para No.1 of its Communication dated
23rd January 2008 :
"1) .........In case of non-residential occupier, the area to be given
in the reconstructed building will be equivalent to the area
occupied in the old building. Accordingly the plans be got
approved from M.C.G.M."
3.1) Admittedly the Respondent Nos. 2 to 7 were running a firm by
name M/s. Popular Stock and Share Services Limited from a tenanted shop
premises No.8 from the said property, which was admeasuring 117 sq.ft.
Before its demolition while conducting survey of the said property, the
competent Authority has recorded the said fact in its annexure / schedule.
dtg 31-Apeal-481-2013.doc
Thus, as per the DCR, 1991, Respondent Nos. 2 to 7 were and are entitled for
at the most 117 sq.ft. of commercial premises in the newly developed
building of the Appellant. The learned Special Judge of the trial Court has
not taken into consideration the said important factual and legal aspect while
passing the impugned Order.
3.2) Mr. Vaidya, learned Advocate appearing for Respondent Nos. 2
to 7 also fairly conceded to the said legal aspect.
4) In view thereof, Respondent Nos. 2 to 7 were and are entitled
for only 117 sq. ft. of commercial premises in the newly developed building
by the Appellant. According to us, therefore the directions issued by the trial
Court and as reproduced herein-above, are contrary to the permission
granted by the competent Authority of the MHADA and the Regulation No.
33(7) of the DCR, 1991.
4.1) In view thereof, impugned Order dated 21 st February 2013 is
quashed and set aside. The Appellant is directed to hand over 117 sq. ft of
commercial premises to Respondent No.8, i.e. the competent Authority,
within a period of two weeks from the date of uploading of present Order on
the official website of High Court of Bombay.
5) The competent Authority is directed to clear all the arrears of
the Co-operative Housing Society, wherein the said premises of Respondent
Nos. 2 to 7 is now situated in newly developed building, within a period of
two weeks from the date of receipt of the present Order, without any demur
dtg 31-Apeal-481-2013.doc
or protest in that behalf.
5.1) After the Appellant hands over possession of its commercial
premises of 117 sq. ft in favour of Respondent No.8, i.e. the competent
Authority, the Appellant is permitted to immediately demolish the old
tenanted structure of Respondent Nos. 2 to 7, as per the provisions of the
law.
6) Appeal is allowed in the aforesaid terms.
6.1) In view of disposal of Appeal No. 481 of 2013, Criminal
Application No. 654 of 2013 pending therein does not survive and is
accordingly disposed off.
( RAJESH S. PATIL, J. ) ( A.S. GADKARI, J. )
