Partly allowed

Ashok Khetshi Hariya v. State of Maharashtra and Ors.

Bombay HC5 Oct 2012LPA/163/2012

Case brief

AI extract

What is this about?

The court allowed the implementation of orders directing the appellant to vacate and take a rehab shop, subject to the deposit of Rs. 5 lakhs by the respondent developer in the City Civil Court as security for the appellant's ownership claim pending suit. The deposit will be adjusted if compensation is awarded to the appellant in the civil suit.

What did the court decide?

Implementation of the impugned orders allowed only after respondent No.3 deposits Rs.5 lakhs in the City Civil Court as security, to be adjusted against any compensation awarded to the appellant if he

Ashok Khetshi Hariya Vs State of Maharashtra and Ors. — Land Acquisition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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LETTERS PATENT APPEAL NO.163 OF 2012 IN WRIT PETITION NO. 10693 OF 2011 WITH

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CIVIL APPLICATION NO.230 OF 2012

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Ashok Khetshi Hariya. ... Appellant Vs. The State of Maharashtra & ors. … Respondents

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Mr.S.S.Kanetkar, for appellant.

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Mr.A.B.Vyagyani, AGP, for respondent Nos.1& 2-State.

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Mr.Anuj Narula i/by M/s Jhangiani, Narula & Associates, for respondent No.3.

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Friday, October 05, 2012.

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P.C.:

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This appeal is directed against the order dated 21 June 2012 of the learned Single Judge of this Court dismissing the appellant's Writ Petition in which the appellant had challenged the Judgment and order dated 25 January 2010 of the Deputy Collector (Enc/Removal) & Competent Authority, under sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment), Act, 1971 as also the order dated 13 September 2011 of the Administrator and Divisional Commissioner, Konkan Division, Mumbai confirming the order of the Deputy Collector.

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By the impugned orders, the appellant has been called upon to vacate the premises occupied by him and hand over possession

LPA163-12

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thereof to respondent No.3 i.e. Om Sai Samarth Developers and to occupy rehab shop allotted to the appellant on permanent basis. The orders are passed in the proceedings initiated under sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.

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The dispute is about shop No.9 admeasuring 23.5' x 12' i.e. approximately 390 sq.ft. with a closed verandah in front of the shop admeasuring 12' x 6' and open Otla at the rear of his shop, the total area in possession of the appellant is about 396 sq.ft. in Hiralal Yadav chawl on CTS No.2399 of Dahisar (E), Mumbai. The land is a part of CTS No.2399 which was declared as a 'slum' in the year 1996.

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According to the appellant, he had purchased the shop under registered Conveyance deed dated 1 July 1986 and therefore the property belongs to the appellant and the respondents particularly respondent Nos.3 and 4 are not entitled to get possession of the said property or land below the same.

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According to the respondent Nos.3 and 4, the land was declared as a part of the slum and under the slum rehabilitation project, respondent No.3 has already constructed rehabilitation building in which as per the Slum Rehabilitation Scheme, the appellant is offered shop of the carpet area of 225 sq.ft. as the owners of all other shops who have been allotted shops with maximum carpet area of 225 sq.ft.

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Learned counsel for the appellant further submits that the appellant is not given any shop that is having frontage on the road and therefore there will be serious prejudice to the appellant's business as a grocer.

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We do not propose to go into the merits of the controversy between the parties about the appellant's claim to ownership over the land in question as the same is already subject matter of the Suit No.411 of 2012 in the City Civil Court, but we only propose to pass appropriate orders to protect the interest of the appellant in case the appellant succeeds in the said suit.

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Having regard to the fact that the petitioner is claiming to be the owner of shop admeasuring 396 sq.ft. (including the verandah and Otla portion) as against shop along with carpet area admeasuring 225 sq.ft. allotted by respondent Nos.3 and 4. The impugned orders shall be allowed to be implemented only after the respondent No.3 deposits with the City Civil Court a sum of Rs.5 lakhs. That amount shall be invested in Fixed Deposit in the name of the Registrar of the City Civil Court under the cumulative interest scheme and such deposit shall abide by the final outcome of Suit No.411 of 2012. In case the appellant succeeds in the said suit, the appellant shall be permitted to withdraw the entire amount of Rs.5 lakhs with accrued interest thereon.

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We make it clear that if the appellant succeeds in the suit, the City Civil Court will be at liberty to pass appropriate final orders and any compensation payable to the appellant under such decree shall be adjusted against the amount of Rs.5 lakhs and accrued interest. If the appellant is entitled to get any further amount over and above of such amount of Rs.5 lakhs and accrued interest, the appellant will be entitled to execute such a decree against the concerned defendants. The City Civil Court shall decide the suit in accordance with law without being influenced by the order dated 21 June 2012 of the learned Single Judge.

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The aforesaid impugned orders will be allowed to be implemented only after the aforesaid amount of Rs.5 lakhs is deposited and the respondent No.3 allots and hands over the shop of carpet area of 225 sq.ft. on the ground floor in the rehab building.

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CHIEF JUSTICE

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N.M.JAMDAR, J.

Ashok Khetshi Hariya v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Ashok Khetshi Hariya v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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