Disposed

Maureeen P. Fernandes and 27 Ors. v. the State of Maharashtra and 10 Ors.

Bombay HC5 Dec 2013WP/2119/2011

Case brief

AI extract

What is this about?

The High Court, facing an imminent safety hazard due to a dilapidated building and a pending title dispute in the Waqf Tribunal, directed the respondent to temporarily allot flats in a newly constructed building to tenants. This was done subject to specific undertakings regarding equity and restrictions on third-party rights.

What did the court decide?

Directed Respondent No. 11 to hand over flats in the new building to tenants via MHADA authorities, subject to tenant undvartments against equity and restrictions on third-party rights.

Maureeen P. Fernandes and 27 Ors. Vs the State of… — Property and Title | Bombay HC (2013)

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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VPH

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

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WRIT PETITION No. 2119 OF 2011 WITH CHAMBER SUMMONS No. 309 OF 2011

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Maureen P. Fernandes & Ors. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents

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WITH CHAMBER SUMMONS (L) No. 358 OF 2011

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Khozema Asgarbhai Umrathwala … Applicant AND Maureen P. Fernandes & Ors. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents ***

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Mr. Mayur Khandeparkar with Omar Khaiyam Shaikh, for the Petitioners.

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Mr. J. S. Saluja, AGP for Respondent Nos. 1 & 4.

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Mr. Vinod Mahadik, for Reservation No. 3.

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Mr. V. R. Dhond, Sr. Couunsel with Mohammedali Chunawala with S. M. Sayed, for Respondent Nos. 5, 6 and 11.

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Mr. A. A. Joshi, for Respondent Nos. 7, 8 & 10.

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Mr. Javed R. Shaikh i/b MAG Legal for Respondent No. 13.

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Mr. Sandeep Parekh with Jyostna Pardhi for Applicant in CHSWL No. 358/2013.

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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CORAM : V. M. KANADE, & M. S. SONAK, JJ.

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DATE : DECEMBER 5, 2013

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PC.

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Heard the learned counsel appearing on behalf of the Petitioners, the learned AGP appearing on behalf of Respondent Nos. 1 & 4, the learned counsel appearing on behalf of MHADA / Respondent No. 2, the learned counsel appearing on behalf of Respondent Nos. 5, 6 & 11 and the learned counsel appearing on behalf of Respondent No. 13.

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By this petition which is filed under Article 226 of the Constitution of India, Petitioner had initially prayed that no objection certificate given by MHADA in favour of Respondent Nos. 5, 6 and 11 be quashed and set aside and NOC dated 25.10.2007 may be quashed and set aside. Petitioners are also seeking consequential reliefs by challenging corrigendum dated 19.3.2010 which was received by Respondent No. 2. Thirdly, it was prayed that since consent of the Petitioners was withdrawn, no developmental activity can take place and the development is illegal and not binding on the petitioners. However, the Petitioners thereafter amended the petition and are now seeking following relief:

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“(a1)That this Hon'ble Court may be pleased to issue writ of Mandamus or any other appropriate writ order or

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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direction against the Respondent No. 2 to forthwith implement condition No. 1 & 2 of the NOC dated 12/8/2004 (Ex – N to the petition) and ensure that the Petitioners are rehabilitated in the rehab building constructed by the Respondent Nos. 5 & 6 by allotting them flats therein.”

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Learned counsel appearing for the Petitioners submitted that the building which was constructed by Respondent No. 11 is totally in dilapidated condition. It is further submitted that the MHADA and other authorities have also declared that the said building is unsafe for human habitation. It is submitted that in the new building which is being constructed by Respondent No. 11, Petitioners may permitted to occupy the said building, subject to any order which may be passed in the proceedings which are pending either before the Waqf Tribunal or any other competent authority. There is chequered history in respect of the litigation between the Petitioners on one hand and the Respondent Nos. 5, 6, 11 and 13 on the other hand. According to Respondent No. 13, the property in question is a Waqf property. This is seriously, vehemently disputed by Respondent Nos. 5, 6 and 11. Learned counsel for Respondent No. 11 have given list of dates which also is disputed by the learned counsel appearing for Respondent No. 13. However, broad contour of the facts are that the Secretary of the State for India in Council leased out a plot a plot of

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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land for a period of 99 years from 1.9.1903 to Mirza Mohammed Shirazi. Suit No. 355 of 1911 was filed by the Trustees in this Court for administration and management of the Hazi Zainal Abedin Shirazi Trust (for short “the Trust). This Court by order dated 18.3.1914 framed a scheme of management and administration of the Trust. According to Respondent No. 11, the Trust by Indenture of Sub-Lease, demised the said plot of land to Akbarali Kurban Hussain Haveliwala, and a Deed of Assignment was executed on 20.3.1992 in favour of Respondent No. 11. Pursuant to the negotiations with the Trust, an Agreement to sub-lease the said plot of land was entered into between the Trust and Respondent No. 11 with Akbarali Kurban Hussain Haveliwala as a confirming party on 26.9.1997. On 23.12.1997 a notice was issued in the newspaper regarding intention of the Trust of renewing old lease and the alienation of the said plot of land through sub-lease.

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According to the counsel appearing for Respondent No. 11, Charity Commissioner on 7.10.1999 approved the sub-lease of the property in favour of Respondent No. 11. On 22.11.2000 the Trust by a registered Indenture of Sale, sub-leased the property to Respondent No. 11. Thereafter in May 2001 an application was made to the Charity Commissioner by the Trust requesting the Charity Commissioner to modify the order dated 7.10.1999 to the extent that the condition that sub-lessee shall not create any third party rights be

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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removed. The Charity Commissioner by order dated 30.5.2001 allowed the modification, allowing Respondent No. 11 to develop the property. On 17.1.2002 the Trust applied for renewal of the 99 year lease which was due to expire on 30.8.2002. Initially, in 2002 occupants / tenants of the building gave their irrevocable consent for the redevelopment. The Collector of Mumbai on 6.3.2003 informed the Trust that it intended to renew the lease on a yearly rent of Rs.22.53 lakhs. On the basis of the permission granted by Respondent No. 2 redevelopment plans were sanctioned by Respondent No. 3 in 2005. IOD was granted by Respondent No.3 in 2007 and accordingly commencement certificate was granted to Respondent Nos. 5, 6 and 11 on 21.4.2007. In the meantime, construction of the building was commenced and as of today the building is fully constructed and ready for occupation.

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All these dates and events which are mentioned by the learned counsel appearing for Respondent No. 11 are vehemently and seriously disputed by the counsel appearing for Respondent No. 13. It appears that in the meantime Respondent No. 13 had filed Suit No. 19 of 2013 before the Waqf Tribunal seeking various reliefs. An exparte order was passed by the Wakf Tribunal, Aurangabad, dated 22.2.2013 directing the Respondent in the said Suit, not to create any third party rights or part with possession of any portion of the Wakf Property of building standing thereon. An application has already been filed by

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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Respondent Nos. 5, 6 and 11 for vacating the said ad-interim order. However, this application (Exhibit 5) is kept for hearing before the Tribunal. Learned counsel appearing for Respondent No. 13 has invited our attention to the provisions of the Wakf Act. It is submitted that under Section 83 of the said Act, Tribunal is entitled to decide all disputes pertaining to the Wakf property and grant all consequential and other reliefs relating to said property. In support of the said contention, he relied on the judgment of the Apex Court in the case of – Maharashtra State Board of Wakfs, Petitioner Vs. Yusufbhai Chawala & Ors., Respondents [(2012) 6 Supreme Court Cases 328] and also the judgment of the Apex Court in the case of – Board of Wakf, West Bengal & Anr., Appellants Vs. Anis Fatma Begum & Anr., Respondents [(2010) 14 Supreme Court Cases 588] . The learned counsel has taken us to the scheme of the Wakf Act and the various provisions relating to various issues which can be raised and decided by the Wakf Tribunal. It is submitted that since the suit is pending before the Wakf Tribunal and since the order of injunction has been passed by the Tribunal restraining Respondent No. 5, 6 and 11 from parting with possession or creating third party right. This Court while exercising jurisdiction under Article 226 does not have jurisdiction / power or authority to permit Respondent No. 11 (Petitioners herein) to occupy the premises.

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On the other hand, learned counsel appearing for the

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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Petitioners, after taking instructions from the clients submits that the Petitioner will not claim any equity, if possession is given to them in the building which is newly constructed. It is submitted that in the event, any adverse order is passed by any competent authority or by the Wakf Tribunal, they shall be bound by the said order, which will be passed. It is submitted that the Petitioners are afraid that the building in which they are residing may collapse at any moment and since that happens, life of the tenants and their family members including women and children, will greatly be in danger. It is, therefore, submitted that under these circumstances, though they had initially challenged the NOC which was granted in favour of Respondent No.11, by amending the petition they are willing to shift to the newly constructed building without claiming any equity.

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Learned counsel appearing on behalf of Respondent No.11 has filed an affidavit in reply. In the said affidavit-in-reply it is stated that as per the 'no objection certificate' dated 12^th August, 2004 issued by Respondent No. 2, the tenants of the said building were to be rehabilitated in the new building which is constructed on the land. It is further submitted that new building for rehabilitating the tenants is complete in all respects and ready for the tenants to occupy the same. It is submitted that Respondent Nos. 5, 6 and 11 have no objection for handing over the new tenements in the new building to the Executive Engineer, “E” Division ' MBRRB & Estate Manager

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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(RT), MBRRB for the purpose of allotting the same to the said tenants / occupants in accordance with the “No Objection Certificate” dated 12^th August, 2004 issued by Respondent No. 2.

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Taking into consideration the peculiar facts and circumstances of the case, we are of the view that since the building which is occupied by the tenants is in dilapidated condition being very old, and the report which has been submitted to the concerned authority also indicates that it is likely to collapse at any time in the interest of justice and in order to ensure that no untoward incident happens, we are of the view that all the tenants in the said building should be allowed to be shifted to the newly constructed building. All the tenants, however, shall file undertaking in this Court within two weeks that they shall not claim equity upon they being shifted to newly constructed building. Under these circumstances, we direct Respondent No. 11 to hand over the said flats which are allotted to the tenants to the MHADA authorities, who will in turn shall hand over the flats to all the tenants. This should be without prejudice to the rights and contentions of the parties.

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It is clarified that handing over of the possession of the flats to the Petitioners / tenants, pursuant to the order passed by this Court, is by way of temporary arrangement and by virtue of this order, Respondent No. 11 will not be permitted to create third party rights in

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WP. 2119-11, CHSW. 309-11, CHSWL. 358-11

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respect of free sale component. So also, they will not create any third party right in respect of the remaining flats. It is clarified that this order has been passed without prejudice to the rights and contentions of the parties to this petition .

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Writ petition is accordingly disposed of in the aforesaid terms. Consequently, Chamber Summons No. 309 of 2011 and Chamber Summons (L) No. 358 OF 2011 filed therein do not survive for consideration and are accordingly disposed of.

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Vinayak Halemath

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Maureeen P. Fernandes and 27 Ors. v. the State of Maharashtra and 10 Ors.

Case brief

What is this about?

What did the court decide?

Maureeen P. Fernandes and 27 Ors. v. the State of Maharashtra and 10 Ors.

Case brief

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What did the court decide?

What the court decided

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