Dismissed

Deepak Shamsundar Gavaskar v. Mumbai Building Repair and Re-Construction and 2 Ors.

Bombay HC19 Dec 2013WP/64/2014

Case brief

AI extract

What is this about?

The High Court dismissed the Writ Petitioner's challenge to an eviction notice under Section 95-A of the Maharashtra Housing and Area Development Act, 1976, holding that the petitioner's refusal to accept the offered alternate accommodation justified the authorities' order for summary eviction.

What did the court decide?

Writ petition dismissed; eviction order confirms with 2 days to vacate offered premises.

Deepak Shamsundar Gavaskar Vs Mumbai Building Repair… — Writ and Judicial Review | Bombay HC (2013)

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WPL. 3145-13

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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 (L) No. 3145 OF 2013

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Deepak Shamsundar Gavaskar ... Petitioner Vs.

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Mumbai Building Repair & Reconstruction Board and Ors.

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... Respondents

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Mr. Nitesh Bhutekar, for the Petitioner. Mr. M. D. Naik, for Respondent No. 1 & 2.

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Mrs. Prabha Badadkar a/w C. Agrawal i/b M/s. Legal Catalyst, for Respondent No. 3.

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

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DATE : DECEMBER 19, 2013

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PC.

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Leave to amendment is granted. Amendment be carried out forthwith in terms of draft amendment.

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Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent Nos. 1 and 2 and the learned counsel appearing for Respondent No. 3. By this petition which is filed under Article 226 of the Constitution of India, Petitioner is challenging the order passed by the MHADA authorities under

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WPL. 3145-13

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Section 95-A of the Maharashtra Housing and Area Development Act, 1976 (for short “the Act”). By the said order dated 27.11.2013 the Executive Engineer FN DIV, M.B. R. & R. Board, Mumbai has asked the Petitioner to submit his say for non-vacating his existing premises within 7 days, and on failure, it was mentioned in the said order that necessary action of summary eviction under Section 95-A of the Act will be initiated.

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Learned counsel appearing for the Petitioner submits that impugned order dated 27.11.2013 is illegal. It is submitted that in the said order, it is mentioned that Respondent No.3 who is NOC holder had informed the Petitioner that they are ready to give compensation of Rs. 39,500/- as a rent towards temporary accommodation. It is submitted that, in fact, copy of such intimation has not been given by Respondent No. 1. Secondly, it is submitted that in paragraph 3 of the said impugned order it is mentioned that Respondent No. 3 is ready to pay monthly compensation of Rs. 39,500/- for availing temporary alternate accommodation. It is submitted that in the show-cause notice it is mentioned by the Executive Engineer that Respondent No. 3 has reserved flat No. 48 B-Wing, 1^st Floor, Riddhi Siddhi, R. A. Kidwai Marg,Wadama, Mumbai-400003. It is submitted that, there are discrepancies in the show-cause notice dated 27.11.2013 and the subsequent notice dated 16.12.2013. It is submitted that Petitioner is entitled to get permanent alternate accommodation to the extent of 513

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WPL. 3145-13

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sq. ft., however, Petitioner has been offered 494.49 sq. ft. area. It is submitted that Respondent No. 3 had agreed to offer 513 sq. ft., as demanded by the Petitioner. Since the sanctioned plan is not shown, Petitioner is not vacating the premises. It is submitted that under these circumstances, the impugned order is liable to be quashed and set aside.

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On the other hand, learned counsel appearing for Respondent No. 3 has submitted that Respondent No. 3 is ready to pay monthly compensation on execution of the agreement. However, it is submitted that Petitioner has refused to sign the agreement. It is also submitted that in the agreement, flat which would be allotted to the Petitioner, was mentioned. In spite of that, Petitioner has refused to sign the agreement and vacate the premises, and therefore, the MHADA authorities were constrained to pass order under Section 95A of the Act. It is submitted that other tenants have vacated the premises almost one year back and only because of the adamant attitude of the Petitioner, the work of redevelopment could not commence and due to that the delay has been caused in execution of redevelopment work.

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After hearing the counsel appearing for the respective parties at length, in our view, no case is made out by the Petitioner since submissions made on his behalf cannot be accepted. The learned

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WPL. 3145-13

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counsel appearing for Respondent No. 3 has invited our attention to the correspondence between the parties, which is annexed to the petition. Said correspondence indicates that though Respondent No. 3 had offered to the Petitioner an area of 513 sq. ft., and though they had agreed to pay monthly compensation of Rs. 39,500/- per month, the Petitioner, adamantly, did not accept the said offer though it was as per the terms and conditions, which were agitated by him and the correspondence indicates that this offer was given by Respondent No. 3 in September 2013. More than 3 months have passed and yet Petitioner has refused to accept the offer and vacate the premises.

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Section 95-A of the Act reads as under:

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“ 95A. Summary eviction of occupiers in certain cases :- (1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70 per cent of the total occupiers of that building and a No Objection Certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupier, as the case may be, then it shall be binding on all the occupiers to vacate the premises:

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WPL. 3145-13

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Provided that, it shall be incumbent upon the holder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation.

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(2) On refusal by any of the occupant to vacate the premises as provided in sub section (1), on being approached by the holder of such No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in Chapters VI and VII of this Act, to effect summary eviction of such occupiers.

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(3) Any person occupying any premises, land, building or structure of the Board unauthorisedly or without specific written permission of the Board in this behalf shall, not withstanding anything contained in Chapters VI and VII of this Act, be liable for summary eviction.

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(4) Any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both.”

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WPL. 3145-13

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Perusal of the said section reveals that if non-cooperative tenants refuse to vacate the premises which are in dilapidated condition, then in such case, MHADA authorities are authorised to cause eviction, after giving hearing to the said tenant. Said procedure has been followed; show-cause notice has been issued, hearing was given to the Petitioner and the Petitioner was asked to vacate the premises within 7 days. However, since the Petitioner did not vacate the premises, further order has been passed. In our view, MHADA authorities, in the circumstances, are justified to take action under Section 95-A of the Act. Two days' time is given to the Petitioner to vacate the premises and take possession of the alternate flat which has been offered and reserved by Respondent No. 3 and intimated to the MHADA authorities. After 2 days, however, if the Petitioner does not vacate the premises, the competent authorities shall forcibly evict the Petitioner, if necessary, with the help of police protection. Writ petition is disposed of in the aforesaid terms.

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Vinayak Halemath

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Deepak Shamsundar Gavaskar v. Mumbai Building Repair and Re-Construction and 2 Ors.

Case brief

What is this about?

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Deepak Shamsundar Gavaskar v. Mumbai Building Repair and Re-Construction and 2 Ors.

Case brief

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What did the court decide?

What the court decided

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