Allowed

Suraj Bhagwan Pawar and 2 Ors. v. the State of Maharashtra and Anr.

Bombay HC25 Jul 2017WP/1982/2016

Case brief

AI extract

What is this about?

In a writ petition, the High Court held that heirs of a deceased slum dweller listed in Annexure-II claiming permanent alternate accommodation under Slum Rehabilitation Authority Circular No.152, need not produce a succession certificate as they fall within the list in Clause(b)(I). The Court set aside the Assistant Registrar's direction and directed immediate handover of possession and keys by th

What did the court decide?

Direction to Respondent No.2 to hand over possession. Directing SRA to hand over keys to Society within one week and Society to Petitioners thereafter within two days if SRa compliance is met.

Suraj Bhagwan Pawar and 2 Ors. Vs the State of Maharashtra… — Property and Title | Bombay HC (2017)

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(901) wp-1982.16

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

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WRIT PETITION NO.1982 OF 2016

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Suraj Bhagwan Pawar and ors. : Petitioners. Versus The State of Maharashtra and ors. : Respondents.

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Mr.Sujeet Kurup i/by Kurup Shivaji and Co. for the Petitioners. Mr.M. U. Upadhye, AGP for the Respondent No.1. Mr. S P Thorat for the Respondent No.2 SRA. Mrs.Asha Nair i/by Diamondwala and Co. for the Respondent No.4. None for the Respondent No.3.

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CORAM : R. M. SAVANT & SMT. SADHANA S JADHAV, JJ. DATE : 25^th JULY 2017

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P.C.

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1 At the outset the learned counsel for the Petitioners seeks leave to

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amend the above Writ Petition so as to incorporate prayer clause (a2) so as to lay a challenge to the letter dated 02/03/2016 of the Assistant Registrar of the Co-operative Societies, SRA, Mumbai City. Leave granted. Amendment to be carried out forthwith.

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2 By way of the above Writ Petition the Petitioners are seeking directions to be issued to the Respondent No.2 to hand over physical possession of the permanent alternate accommodation being Flat No.606, 6^th floor, C-Wing, Rehab Building No.2 to the Petitioners. The Petitioners are also by way of prayer clause (a2) challenging the letter dated 02/03/2016 addressed to them by the Assistant Registrar of the Co-operative Societies,

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SRA, Mumbai City.

3 It is not necessary to burden this order with unnecessary details. Suffice it would be to state that the Petitioners are the heirs of one Kalpana Bhagwan Pawar being her sons and daughter. The said Kalpana Bhagwan Pawar was declared as an eligible slum dweller for participation in the slum rehabilitation scheme in question which was being implemented for the Respondent No.3 Society on behalf of the slum dwellers who had their structures on Plot No.616, Senapati Bapat Marg, Elphinstone (West), Mumbai – 400 028. It is an undisputed position that the name of the said Kalpana Bhagwan Pawar was appearing in Annexure-II which was published on 30/01/2016 by the Deputy Collector and Competent Authority. It is also an undisputed position that the said Kalpana Bhagwan Pawar has expired on 01/05/2013 as a result of which the Petitioners, who as indicated above are her sons and daughter, made an application to the Assistant Registrar of Cooperative Societies, SRA, Mumbai City for being handed over the permanent alternate accommodation by way of Tenement No.606 in 'C' wing in the rehab building No.2 which has been constructed for the members of the Respondent No.3 Society. The said letter dated 10/02/2016 addressed by the Petitioners was replied to by the Assistant Registrar of the Co-operative Societies by his letter dated 02/03/2016. The Assistant Registrar of the Co-operative Societies referred to a Circular bearing No.152 which according to him contains the

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instructions in respect of transfer of tenement in the name of the heirs. The Assistant Registrar however concluded by directing the Petitioners to produce the succession certificate in respect of the said Kalpana Bhagwan Pawar.

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4 In so far as the transfer of tenement to the heirs are concerned, the same is regulated by Circular No.152 dated 05/06/2015 of the Slum Rehabilitation Authority. In the context of the present Petition clause (b) of the said Circular is relevant. The English translation of the relevant clauses (b)(I) and (b)(II) of the said Circular are relevant and reproduced herein under for the sake of ready reference :-

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“(b) After death of eligible husband/wife both in annexure-2, then the action may be initiated for transferring their membership & tenement as follows :-

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(I) After death of both husband/wife, if his mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson, grand-daughter in their family has filed application to the society for transferring membership of the society and tenement, then the transfer may be carried out at the level of society by initiating action as per Model Byelaws No.35, 36, 38 & 39 of the Society.

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(II) If the application regarding transfer is received by the society in the name of a relative other than the one mentioned in clause I, then the society will take Succession Certificate or Letter of Administration, whichever is applicable and

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then transfer tenement and membership of the society in the name of that heir.”

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The said clause therefore (b) postulates the transfer of tenement after the death of husband and wife in terms of clause (I) and (II). In so far as clause (I) is concerned, it postulates that after the death of the husband and wife their family members like mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson, grand-daughter, if they make an application, the said application would have to be considered on the touchstone of Bye-laws 35, 36, 38 and 39 of the Model Bye-laws, and transfer should be effected at the level of the Co-operative Society. In so far as clause (II) is concerned, it postulates that if an application is made other than by the persons mentioned in clause (I), then the said application would have to be accompanied with the Letter of Administration. Hence in so far as the category of persons mentioned in Clause (I) is concerned, if an application is made by them, the said application would have to be considered on the touchstone of the Bye-laws mentioned in the said clause (I). It is only if the application is made by the persons other than those mentioned in clause (I), then that application has to be supported by the Letters of Administration.

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5 In the instant case, as indicated above, the Petitioners are the children of Kalpana Bhagwan Pawar who is admittedly an eligible slum dweller

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and who is entitled for allotment of permanent alternate accommodation. If that be so, the Petitioners application has to be considered on the touchstone of Byelaw Nos.35, 36, 38 and 39 of the Model Bye-laws.

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6 At present there is no claim made by any other person in respect of the said tenement. The Petitioners, as the sons and daughter, would obviously stand in priority than any other relative. The Petitioners have also furnished Indemnity Bond dated 25/03/2015 indemnifying the Society against any claim made by any person.

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7 In our view, therefore, the Assistant Registrar of the Co-operative Societies, SRA, Mumbai City had erred in directing the Petitioners to produce succession certificate when the said Circular No.152 of the SRA, which is referred to in the earlier part of this order, does not provide for any such requirement to be complied with by the heirs of the original slum dweller who are mentioned in clause b(I) as above. Hence the said letter dated 02/03/2016 of the Assistant Registrar of the Co-operative Societies, SRA, Mumbai City directing the Petitioners to produce succession certificate is required to be set aside and is accordingly set aside. The Petitioners would be entitled to be put in possession of the tenement in question being No.606 in the 'C' wing in rehab building No.2 of the Respondent No.3 Society.

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8 In so far as the said tenement No.606 is concerned, the Developer i.e. the Respondent No.4 has filed an affidavit of one Mr. Vijay Kunder – the Constituted Attorney of Omkar Realtors & Developers Pvt. Ltd. After stating the antecedent facts relating to the implementation of the slum rehabilitation scheme in paragraph 19 it has been stated that in so far as rehab tenement No.606 situated in Wing C, rehab building No.2 is concerned, the SRA is in possession of the keys of the said tenement in view of the fact that the said keys were handed over to the SRA as the mother of the Petitioners in whose name the rehab tenement stands had expired. We therefore direct the SRA to hand over the keys to the Secretary of the Respondent No.3 Society within one week from date. The Secretary of the Respondent No.3 Society is directed to hand over the said keys to the Petitioners within two days thereafter, after the said keys are handed over to him by the SRA. Any non-compliance of the aforesaid directions would be viewed strictly and appropriate action would be taken if the directions are not complied with. The above Writ Petition is allowed to the aforesaid extent and is accordingly disposed of.

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9 Put up for compliance on 08/08/2017.

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[SMT. SADHANA S JADHAV, J] [R.M.SAVANT, J]

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Suraj Bhagwan Pawar and 2 Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

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Suraj Bhagwan Pawar and 2 Ors. v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

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