Disposed

Bajrang Vithal Gawali and Anr. v. Maharashtra Housing and Area Development Authority and Ors.

Bombay HC3 May 2013WP/1663/2012

Case brief

AI extract

What is this about?

The Court disposed of a writ petition challenging an MHADA notice under Section 95-A. It directed the First Respondent to comply with a previous Civil Court decree declaring an earlier permission revocation void. Simultaneously, the Court recorded an agreement where petitioners agreed to vacate premises and receive alternative accommodation, making a full adjudication unnecessary.

What did the court decide?

Directed Respondent No.1 to comply with the Civil Court decree dated 11.05.2012 within three months. Recorded undertakings for vacating premises and receiving alternative accommodation; disposed of th

Bajrang Vithal Gawali and Anr. Vs Maharashtra Housing… — Service and Employment | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1663 OF 2012

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Bajrang Gawali & Anr. V/s. MHADA & Ors.

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...Petitioners

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...Respondents

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Mr.S.B. Prabhavalkar for the Petitioners.

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Mr.Prakash G. Lad for Respondent Nos.1 and 2.

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Mr.Girish Godbole with Mr.H.N. Thakore i/b Thakore Jariwalla & Associates for Respondent No.3.

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Mr.Uday P. Warunjikar for Respondent No.4.

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CORAM : S.J. VAZIFDAR &

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R.Y. GANOO, JJ. DATE : 3RD MAY, 2013.

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P.C. :-

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Rule. Rule is made returnable forthwith. By consent the writ petition is heard finally at the admission stage.

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The petitioners have sought a writ to set aside an order dated 31.07.2012 under section 95-A of the MHADA Act, 1976 passed by respondent No.2 – Execution Engineer of respondent No.1. Respondent No.3 is the Pant Nagar Rail View Co-operative Housing Society Limited. Respondent No.4 is M/s.Jaydeep Constructions.

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Respondent 1 had constructed a residential complex. Prior to 1983, one Arun Vasant Sule was the tenant of room / tenement No.5020 on the ground floor of the said complex. Petitioner No.1 acquired the said room with the consent of respondent No.1. By a letter dated 23.01.1986, respondent No.1 accorded its no objection for the said transfer subject to the terms and conditions mentioned therein. The petitioners initially carried on business from the said premises of running a driving school and selling MAFCO products. Admittedly the premises had been assessed as commercial premises since at least 1993. In fact by a letter dated 28.11.1996, respondent no.1 had permitted non-residential user of the said premises. By a communication dated 25.06.1998, the Bombay Municipal Corporation (BMC) permitted the petitioners to conduct a restaurant from the said premises.

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In the year 2003, the third respondent society was registered. Respondent No.2 - Ashish Bajrang Gawali, son of petitioner No.1, claims to have acquired the tenancy in respect of another premises in the complex bearing tenement No.5022 on the first floor. The impugned notice however, is not in respect of these premises. The reference therefore, in this order and judgment to the said premises pertains to the tenement No.5020 on the ground floor unless otherwise specified. Mr. Lad, the learned counsel appearing

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on behalf of MHADA stated that the impugned notice will not be implemented in respect of tenement No.5020. He stated that a separate order has been passed in respect thereof. The petitioners, therefore, will have to challenge the separate order, if they so desire, by adopting separate proceedings. Mr. Prabhavalkar, the learned counsel appearing on behalf of the petitioners states that the separate order has not been served upon the petitioners. The other respondents dispute the statements on behalf of the petitioners and respondent No.1. As this order does not deal with the said tenement No.5022, it is not necessary for us to express any opinion in respect thereof.

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By an order dated 01.12.2004, respondent No.1 revoked the permission to use the said premises for commercial purposes. The petitioners filed S.C. Suit No.603 of 2005 in the Bombay City Civil Court to challenge this order. The suit was disposed of by an order and decree dated 11.05.2012. The operative part of the judgment reads as under :-

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“O R D E R

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Suit is partly decreed with costs as under :

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It is hereby declared that revocation of permission dated 4.5.1998 vide letter dated 1.12.2004 issued by defendant no.1 is bad in law, illegal, null and void.

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MHADA/defendant no.1 shall give fresh

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hearing to the plaintiff in respect of cancellation of permission in respect of the suit premises i.e. Room No.5020, Ground floor, Building no.184, Rail View Cooperative Housing Society, Pant Nagar, Ghatkopar (East), Mumbai, within three months from today.

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Defendant no.1 is not entitled to take any action in pursuance of the same.

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Defendant no.4 is hereby perpetually restrained from taking any action in respect of letter dated 28.5.2009 till the decision by defendant no.1 on cancellation of permission in respect of suit premises.

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Decree be drawn up accordingly.”

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On 19.06.2006 the property was conveyed by respondent

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No.1 to the third respondent society. It is necessary to note a few facts which transpired in the meantime. On 29.12.2005, respondent No.3 rejected the petitioners' application for membership. However, the Registrar of Societies by an order dated 04.04.2007 directed the petitioners to be admitted as member of the society. On 11.06.2006, a development agreement was entered into between respondent No.3 – the society and respondent No.4 – the developer.

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On 11.09.2006, respondent No.1 executed a lease in favour of respondent no.3 in respect of the said complex.

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In the year 2009, respondent No.4 – the developer had filed a suit against the petitioners and other occupants of commercial premises. The notice of motion taken out by them was however, dismissed on 08.01.2010 on the ground that the developer had no

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right to seek the reliefs against the occupants. The appeal from order filed by the developer was allowed to be withdrawn by an order dated 27.04.2011 with liberty to file a fresh notice of motion.

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As we noted earlier, the S.C. Suit No.603 of 2005 filed by the petitioners to challenge the first respondent's order dated 01.12.2004 revoking the permission for the use of the said premises for commercial premises was partly decreed by the said order and judgment dated 11.05.2012.

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The impugned notice under section 95-A of the MHADA Act was issued on 24.05.2012 leading to the petitioners filing the present petition.

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As we also noted earlier, the impugned notice under section 95-A of the MHADA Act is not in respect of the tenement No.5022. Mr.Lad, the learned counsel appearing on behalf of respondent No.1 confirmed that no action would be taken pursuant to the impugned notice in respect thereof.

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Fortunately, the petitioners and respondent Nos.3 and 4 have arrived at an understanding which obviates the necessity of dealing with the disputes between them. The same also has now made the way clear for the development of the property as well as for protection of the rights of the petitioners in respect of the said premises as well as tenement No.5022 in the event of the petitioners'

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rights in respect thereof being ultimately established.

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Firstly it must be noted that respondent No.1 is bound to comply with the order and decree of the Bombay City Civil court dated 11.05.2012. As on dated, the revocation of permission for commercial user communicated by the order dated 01.12.2004 issued by defendant No.1 has been declared to be illegal, null and void. However, the said order also directs defendant No.1 to give a fresh hearing to the petitioners in respect thereof. Mr.Lad stated that respondent No.1 having conveyed the property / executed the lease in respect of the said property in favour of respondent No.3, is no longer concerned with the issue. That is incorrect. Respondent No.1 is not entitled to ignore the said order and judgment and to refuse to comply with the same unilaterally. Admittedly, no application has been made in this regard by respondent No.1 to either vary or set aside the order and decree. In any event such an application would not be maintainable. The order and decree and indeed the rights of the petitioners are not to be judged on the basis of what transpired by reason of respondent No.1 having conveyed the property to respondent No.3. The petitioners' rights in respect of the said premises are to be judged as on the material date and on the material circumstances viz. the impugned notice dated 01.12.2004 issued by respondent No.1 revoking the permission to use the said

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premises for commercial purposes. Respondent No.1 by a letter dated 01.10.2012 stated that the MHADA now cannot grant the petitioners permission to convert the user of the said premises being commercial purposes. This letter is not in compliance with the order and decree of the Bombay City Civil Court. The question is not whether the commercial user can now be granted. The question is whether the revocation of the permission earlier granted for the use of the said premises for commercial purposes by the letter dated 01.12.2004 was illegal or not. Respondent No.1 is therefore, bound to decide that issue in this regard. It is accordingly so ordered. Respondent No.1 shall comply with the order and decree dated 11.05.2012 of the Bombay City Civil Court and in particular clause 3 thereof within three months from today.

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In order to ensure that the development of the property is not hampered on account of the disputes regarding the said premises being viz. tenement No.5020, the petitioners and respondent Nos.3 and 4 have agreed as under :-

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i). The petitioners agree and undertake to vacate the premises / tenement Nos.5020 and hand over peaceful possession thereof to respondent No.3 / respondent No.4 on or before 04.06.2013. The undertaking is accepted and it is so ordered. ii). Respondent No.4 agrees and undertakes to pay petitioner

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No.1, a sum of Rs.40,000/- per month on or before the tenth day of each month as compensation in lieu of the temporary alternate accommodation till the petitioners are put in possession of the permanent alternate accommodation. The amount shall be paid only after the petitioners hand over quiet, vacant and peaceful possession of the said premises to respondent No.3 / respondent No.4 as aforesaid.

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iii). The petitioners undertake to return the difference in the amount of Rs.40,000/- and the compensation in lieu of temporary alternate accommodation for residential premises which, as on date is Rs.20,000/-, with interest at 6% per annum, if it is ultimately held that they are not entitled to use the said premises for commercial purposes. In that event, the petitioners shall be put in possession of the permanent alternate accommodation only upon their returning / repaying the amounts so paid.

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iv). Respondent Nos.3 and 4 will identify a commercial premises on the ground floor and a residential premises on an upper floor of an area equivalent to tenement No.5020 and all other additions thereto, if any, in accordance with law and shall not sell, dispose of, alienate or encumber the same without the leave of the Court till the issue of the petitioners entitlement viz. commercial or residential user is finally decided. In the event of the petitioners being entitled to commercial

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user, they shall be handed over the commercial premises as permanent alternate accommodation and in the event of their being entitled to residential user, petitioner No.1 shall be handed over the residential premises, so reserved, as permanent alternate accommodation.

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The Writ Petition is, accordingly, disposed of. Liberty to apply.

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(R.Y. GANOO, J.) (S.J. VAZIFDAR, J.)

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Bajrang Vithal Gawali and Anr. v. Maharashtra Housing and Area Development Authority and Ors.

Case brief

What is this about?

What did the court decide?

Bajrang Vithal Gawali and Anr. v. Maharashtra Housing and Area Development Authority and Ors.

Case brief

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What did the court decide?

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