Bombay High Court
Hajrabi Abdul Mohammad Yusuf vs Banu Abdul Rahman Quershi on 6 November, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:20496-DB 910.WP5241_2024.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 5241 OF 2024
Banu Abdul Rehman Qureshi ... Petitioner
Versus
Maharashtra Housing and Area Development
Authority (MHADA) & Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO. 7374 OF 2025
IN
WRIT PETITION NO. 5241 OF 2024
Hajrabi Abdul Mohammad Yusuf ... Applicant
In the matter between
Banu Abdul Rehman Qureshi ... Petitioner
Versus
Maharashtra Housing and Area Development
Authority (MHADA) & Ors. ... Respondents
_______
Ms. Gayatri Sharma a/w. R.M. Kumar, Ms. Andrea Lobo for the petitioner.
Ms. Nikita Jacob a/w. Ms. Kinjal Khandelwal i/b. K.P. Law Associates LLP for
respondent nos. 1 to 3.
Ms. Vaishali Chaudhary, Addl. G.P. for the State.
Ms. Eventa A. Gonsalves a/w. Mr. Reyden L. Gonsalves for respondent no. 4.
Mr. Prashant A. Nakati for the Intervenor.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 6 November, 2025
P.C.
1. This petition under Article 226 of the Constitution of India is filed praying
for the following limited reliefs:
"a) That this Hon'ble Court may be pleased to issue a Writ in the nature of
Mandamus or any other apporpriate Writ, order or direction thereby directing
the respondent no. 4 to pay to the petitioner amount due towards the rent
compensation in lieu of temporary alternate accommodation to the petitioner
as per the chart annexed at Exhibit-G hereinabove.
b) That this Hon'ble Court be pleased to issue a Writ in the nature of
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Mandamus, or any other suitable Writ, order or direction, thereby directing
respondent nos. 1 to 3 to exercise the power under Chapter VIII of the
Maharashtra Housing and Area Development Act, 1976 to take such steps as
may be permissible in law to ensure the early rehabilitation of the petitioner."
2. It is not in dispute that the premises, namely, Bori Chawl(Zoeb Chawl),
Adam Mistry Lane, Dr. B.R. Ambedkar Road, Parle, Mumbai is subject matter of
redevelopment. The case of the petitioner is that room no. 65 was in occupation of
the petitioner, being the legal heir of the original tenant - Ms. Khatoon Abdul
Shakoor, who died on 27 October, 2016, who was in occupation and possession of
the said tenement. It is also his contention that she had handed over the tenement
to respondent no. 4 for redevelopment and hence she is entitled for the transit rent,
which is subject matter of prayers in this petition. It is also not in dispute that
respondent no. 4 has entered into Permanent Alternate Accommodation
Agreement with the petitioner, which would entitle the petitioner to be rehoused
in the redeveloped premises. However, what has transpired is that the intervenor
in Interim Application (L) No. 7374 of 2025, namely, Hajrabi Abdul Mohammad
Yusuf, who also claims to be the sister of deceased tenant is now asserting rights in
respect of the tenement. As to who would be entitled to the tenancy is a question
of fact and law, which would be required to be decided in appropriate proceedings
and more particularly, considering the provisions of the Maharashtra Rent Control
Act on the basis of the factual situation which existed on the date the deceased
tenant (Ms. Khatoon Abdul Shakoor) passed away so as to determine who would
be the person who succeeds the tenancy. All these are matters of evidence.
3. In the event, the intervenor is asserting legal rights in respect of the
tenement, it is for the intervenor to establish such legal rights of occupancy or
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share in the said tenement, for which independent appropriate proceedings would
be required to be instituted by the intervenor as permissible in law. However, the
fact remains that the person who was occupying the tenement and who is being
dishoused for the purpose of redevelopment would become entitled to transit rent
as also to be put in possession of the tenement on the redevelopment, as so to
maintain the status-quo ante, i.e., the tenement being vacated and handed over for
such purpose by person who was in possession. This is recognizing the principles
of hardship caused to such person, being mitigated. In the event any person other
than the person in occupation claims a legal right in the tenement, then such
person would be required to establish his legal right on such property in
appropriate proceedings. The law in this regard is well settled considering the
decisions in Namo Realty Ventures LLP vs. Bhanujyoti CHSL & Ors. 1; Sai Krupa
Cooperative Housing Society Ltd. vs. M/s. Osho Developers & Ors. 2; Maniar
Associates LLP vs. Vijay Niwas Co-op. Housing Society Ltd. & Ors. 3 and Heritage
Lifestyle and Developers Pvt. Ltd. vs. Amar-Villa Cooperative Housing Society
Ltd. vs. Ors.4
4. In Namo Realty Ventures LLP vs. Bhanujyoti CHSL & Ors. (supra), in
similar circumstances, the Court has made the following observations:
"16. Insofar as respondent no. 6 is concerned, respondent no. 6 has dispute
with respondent nos. 4 and 5. It is open to respondent no. 6 to agitate his
concern in appropriate proceedings which would be proceedings inter se
between respondent nos. 4 and 5. Respondent nos. 4 and 5 have already shown
willingness to vacate the premises. As observed by this Court in the orders
passed in the case of Sai Krupa Cooperative Housing Society Ltd vs. Osho
Developers & Ors. respondent no. 6 needs to agitate its rights against
respondent nos. 4 and 5 in appropriate proceedings. Respondent no. 6 also
1 Order dated 21 March, 2022 in Arbitration Petiton No. 30 of 2022.
2 Order dated 18 January 2022 in Commercial Arbitration Petition (L) No. 1097 of 2022
3 Order dated 16 March 2022 in Commercial Arbitration Petition (L) No. 4301 of 2022
4 2011(3) Mh.L.J. 965
910.WP5241_2024.DOC
cannot take a position that he would cause any obstruction in respondent nos.
4 and 5 vacating the premises. Thus, respondent nos. 4 and 5 shall vacate their
premises which shall be subject to the adjudication of any inter se disputes with
respondent no. 6, and orders passed by the competent Court in such
proceedings.
17. Needless to observe that in the event, redevelopment is completed
prior to inter se disputes between respondent nos. 4, 5 and 6 being resolved in
appropriate adjudication, it would be the obligation of the petitioner and
respondent no. 1 to put respondent nos. 4 and 5 in possession of redeveloped
premises. Also if respondent nos. 4 and 5 are vacating the premises, they are the
one's who are being dishoused and who shall be suffering a hardship, hence it is
respondent nos. 4 and 5 who shall be entitled to transit rent. In the event,
respondent no. 6 is of the opinion that respondent no. 6 also has share in the
transit rent, on account of any of his rights, it is open for respondent no. 6 to
agitate such contention and such rights in appropriate proceedings he may
bring against respondent nos. 4 and 5. All contentions of the parties in that
regard are required to be kept open."
5. In Sai Krupa Cooperative Housing Society Ltd. vs. M/s. Osho Developers &
Ors., this Court has taken the following view:
"3. Today the question before the Court is limited to the handing over of
the tenement and/or vacating the same for the purpose of redevelopment. It is
stated that respondent no. 4-Pragati Sudhir Bhide is in occupation and she
would be required to vacate the tenement for the purpose of redevelopment.
As she would be dishoused, as she being called upon to vacate the tenement,
she would also be entitled to the rent being offered by respondent no. 1-
developer for availing of the alternate premises till the redevelopment is
complete and till she is put in possession of the permanent alternate premises,
which would be offered by the petitioner-society and respondent no. 1-
developer."
(emphasis supplied)
6. In Maniar Associates LLP vs. Vijay Niwas Co-op. Housing Society Ltd. &
Ors., the Court has made the following observations:
"9. The fact remains that as respondent no.3 is in possession of the
tenement in question and would now be handing over possession of such
tenement to the petitioner/society. Hence considering the consistent view taken
by this Court in Heritage Lifestyles and Developers Pvt. Ltd. vs. Amar-Villa
Co-Operative Housing Society and others1 and in Saikripa Co-operative
Housing Society Ltd V/s. Osho Developers & Ors. the party who is
dispossessed, would be entitled to the transit rent as it is such party who is put
to hardship."
(emphasis supplied)
7. The aforesaid decisions are also taken into consideration in a decision of
Division Bench of this Court in Vipul Fatehchand Shah vs. Nav Samir
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Cooperative Housing Society & Ors.5 wherein the Court made the following
observations:
"3. Mr. Engineer, learned Counsel appearing on behalf of the Appellant
submits that the Appellant does not have any difficulty in handing over
possession of the said flat to the Developer for the purpose of proposed
redevelopment. He assails the order on the ground that the same does not
make any provision (i) for payment of transit rent to the Appellant and (ii) for
the Appellant to be put back into possession on the completion of the
redevelopment. He invites our attention to the impugned order and points out
that the findings of the learned Judge to support the direction of deposit of
transit rent with the Prothonotary and Senior Master are contrary to the settled
law, as has been laid down by this Court in the following judgments:-
(i) Namo Realty Ventures LLP Vs. Bhanujyoti CHSL & Ors. (Order
dated 21st March 2022 in Arbitration Petition No.30 of 2022).
(ii) Sai Krupa Cooperative Housing Society Ltd. Vs. M/s. Osho
Developer & Ors. (Order dated 18th January 2022 in Commercial
Arbitration Petition (L) No.1097 of 2022).
(iii) Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. &
Ors. (Order dated 16th March 2022 in Commercial Arbitration Petition
(L) No.4301 of 2022).
(iv) Heritage Lifestyles And Developers Pvt. Ltd. Vs. Amar-Villa Co-
operative Housing Society Ltd. & Ors. (2011 (3) Mh. L. J. 865)
4. From the abovesaid judgements, learned Counsel points out that it is
well settled that (i) the transit rent is to be paid to the person from whom
possession of the premises in question is taken and (ii) on completion of
redevelopment, the person/entity from whom possession was taken is to be put
back in possession. He submits that for this purpose any inter se legal disputes
qua title and/or entitlement to the said flat in question would be wholly
irrelevant and would remain unaffected. He submits that the effect of the
impugned order is to not only deprive the Appellant of the possession of the
said flat but also the transit rent with no certainty of the Appellant being put
back into possession thereof. Basis this, he submits that the impugned order be
modified to the extent that the Appellant be entitled to receive inter alia the
transit rent during the redevelopment and on completion of the
redevelopment to be put back in possession of the flat in the redeveloped
building.
5. Per contra, Ms. Dhruti Kapadia, learned Counsel appearing on behalf
of Respondent No.3 submits that Respondent No.3 is also entitled to a 50%
share in the said flat. She first submits that therefore the entire rent ought to
be deposited with the Prothonotary and Senior Master of this Court until the
rights of the parties are decided in the pending legal proceedings between inter
alia Respondent No.3 and the Appellant. Alternatively, she submits that 50%
of the transit rent be paid over to Respondent No.3. She does not however
dispute that the Appellant is residing in the suit flat and possession is to be
taken from the Appellant.
5 Commercial Appeal (L) No. 25162 of 2023 in Commercial Arbitration Petition (L) No. 20814 0f 2023
in its order dated 6 October, 2023
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6. We have heard learned Counsel and find that in so far as the issue of
transit rent is concerned, the law is now well settled. It is not in dispute that
the transit rent is to be paid to the person, who is being dishoused from the
premises in question. It is also clear that the person dishoused for the purpose
of redevelopment shall be put back into possession on completion of the
redevelopment. It is clear that inter se disputes qua title and/or entitlement to
the flat, which is subject to redevelopment, are not factors which are relevant
or to be considered for purposes of payment of transit rent as also possession
being handed back to the person dishoused on completion of the
redevelopment. To that extent, the Appeal must succeed. Hence, we dispose of
the present Appeal with the following modification to the impugned order :-
(i) We direct that from the date of handing over possession of the said
Flat No.4, the Developer shall make payment of inter alia transit rent to
the Appellant in terms of Clause 12(c) of the impugned order.
(ii) We make it clear that on completion of redevelopment, the
Appellant shall be put back into possession of the flat which which has
been built in lieu of Flat No.4 in the redeveloped building.
(iii) We make it clear that this order or the fact that the Appellant has
received the transit rent and has to be put back into possession on
completion of the redevelopment, shall not in any manner prejudice the
rights and/or claims and/or pending legal cases of Respondent No.3 qua
Flat No.4 or the flat which shall be handed over to the Appellant on
completion of the redevelopment, i.e., the flat which is handed over to
the Appellant in lieu of Flat No.4."
8. In this view of the matter, we are of the clear opinion that till appropriate
rights are established by the intervenor- Hajrabi Abdul Mohammad Yusuf in the
tenement, there ought not to be any impediment whatsoever for respondent no. 4
to pay the transit rent to the petitioner in whose favour the Permanent Alternate
Accommodation Agreement (PAAA) has been entered. Recognizing the principles
that the person who is actually occupying and who is ousted, would become
entitled to the transit rent, as the mitigation of the hardship can only be of the
occupant and not to a person who was not occupying the premises and who is
merely asserting rights in respect of the property.
9. Thus, respondent no. 4 would be required to make payment of the transit
rent to the petitioner. However, all rights and contentions of the intervenor-
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Hajrabi Abdul Mohammad Yusuf to assert rights in respect of the tenement/share
in the tenement are expressly kept open. All contentions in that regard are also
expressly kept open.
10. We are informed by learned counsel for respondent no. 4 that the total
amount of transit rent which has become payable to the petitioner is about
Rs.10,74,000/- as on August, 2024 and certainly the amount would be much more,
as we are now in November, 2025. We, accordingly, direct respondent no. 4 to
make payment of the entire amount of transit rent to the petitioner within a period
of four weeks in two tranches.
11. Needless to observe that the percentage increase would be required to be in
accordance with the terms and conditions if any contained in the Permanent
Alternate Accommodation Agreement and/or in the percentage of increase being
paid to other tenants. Let the exact calculation in that regard be furnished by
respondent no. 4 to the petitioner along with first tranche of Rs.12,00,000/- which
shall be paid to the petitioner within two weeks from today and second tranche
within two weeks thereafter.
12. All contentions of the intervenor to pursue her independent proceeding as
observed hereinabove, are expressly kept open.
13. Disposed of in the aforesaid terms. No terms.
14. Interim Application is also accordingly disposed of.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
Signed by: Vidya S. Amin
Date: 10/11/2025 18:31:22
