Dismissed

Kamala Laxminarayan Chintakindi v. State of Maharashtra through Government Pleader and 4 Ors.

Bombay HC31 Oct 2017WP/2632/2017

Case brief

AI extract

What is this about?

In a writ petition regarding allotment of commercial tenement in a cooperative housing society, the court rejected the petitioner's claim that the premises should be allotted according to an old superseded plan and noted the existence of an indemnity executed by the petitioner.

What did the court decide?

The petition was rejected; the 5th Respondent undertook to deliver vacant possession of the premises marked in Annexure 1454 (172 sq ft) within two weeks.

Kamala Laxminarayan Chintakindi Vs State of Maharashtra… — Property and Title | Bombay HC (2017)

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Kamala Laxminarayan Chintakindi v State Of Maharashtra
913-WPL1451-17.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 1451 OF 2017

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Kamala Laxminarayan Chintakindi…Petitioner
Versus
State of Maharashtra & Ors…Respondents

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…Respondents

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Mr Yuvraj D Patil, for the Petitioner.
Mr Kedar Dighe, AGP, for Respondent No. 1-State .
Mrs Pooja Yadav, for Respondent No. 2-MCGM.
Mr Hamid Ahmad, i/b Diamondwala & Co., for respondent No. 5.

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CORAM: G.S. PATEL, J DATED: 31st October 2017

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PC:-

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1.The Petitioner seeks this Court’s intervention under Article
226 of the Constitution of India for a direction to be put in
possession of certain premises in Wing “I” of the 4th Respondent
cooperative society. She claims that her premises must be allotted
facing Pandurang Budhkar Marg, Worli, Mumbai. The second relief
sought is to prevent the society and the 5th Respondent, the
developers, from allotting these premises to anyone else.

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2.The place where the Petitioner used to conduct her business
was declared as a slum. Respondents Nos. 2 and 3, the local
authorities, surveyed the area. Annexure II was prepared and the

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Page 1 of 5
31st October 2017

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Kamala Laxminarayan Chintakindi v State Of Maharashtra
913-WPL1451-17.DOC

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Petitioner was found eligible for allotment of a commercial
tenement. As is usual in such cases, this allotment was to be done by
a lottery. The 4th Respondent-society was formed and the 5th
Respondent was appointed as the developer.

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3.Alleging there were irregularities, the Petitioner and other
shop owners filed Writ Petition (L) No. 2319 of 2011. That was
disposed of on 21st October 2011 (SC Dharmadhikari J). A copy of
that order is at Exhibit “A” from pages 16 to 26. As regards the
claim of the Petitioner, this was dealt with specifically in paragraph
6. On behalf of the present Petitioner, it was argued that although
her existing shop admeasured 216 sq ft, she was being given
permanent alternate accommodation of 112 sq feet, leaving a deficit
of about 114 sq ft. The Court held that the petitioner was to be given
permanent alternate accommodation in terms of the area mentioned
in Annexure II but without prejudice to her rights and contentions.
On actual measuring, if she was found entitled to more then the
developer and the society would ensure that she would get the
correct area.

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4.Mr Patil argues that the plan of the rehab building Wing “I”
prepared as of 13th July 2011 at page 80 shows a portion marked
“P1” and this was to be allotted to the present Petitioner.

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5.One of the contentions raised at the time of the writ petition
disposed of by Dharmadhikari J was whether these plans were
themselves liable to alteration. In paragraph 11, the Court clarified
that the fact that plans were inspected did not mean that they could

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Page 2 of 5
31st October 2017

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Kamala Laxminarayan Chintakindi v State Of Maharashtra
913-WPL1451-17.DOC

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not be modified or changed, provided that eligible persons were not
excluded from the accommodation in the revised plans. What this
meant was that the Petitioner’s entitlement would continue but
would be subject to lawfully amended or revised plans.

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6.The complaint now by the Petitioner is that she is not being
allotted the premises in accordance with the plan at page 80 and the
portion marked “P1”.

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7.What this argument overlooks, or perhaps conceals, is that
these plans have been changed subsequently. There was a further
survey after Dharmadhikari J’s order and the Petitioner was found
entitled to a larger area then that allotted to her in Annexure II. Her
entitlement was revised upward to 172 sq ft. This also required the
plans to be revised. A copy of the revised plan is annexed to the 5th
Respondent’s reply affidavit and on this the premises to be allotted
to the Petitioner are marked as Annexure 1454 admittedly applicable
to the Petitioner. The petition does not disclose that having taken
inspection of the previous plans, the Petitioner herself executed an
indemnity-cum-undertaking on 8th November 2015 accepting the
allotment of shop No. 5 in Wing “I” on the ground floor. A copy of
this indemnity-cum-undertaking is at Exhibit “B” to the 5th
Respondent’s Affidavit. A photograph of the Petitioner is on that
indemnity-cum-undertaking and there is therefore no dispute about
her having executed it. Indeed, her execution is not denied. Mr Patil
attempts an argument that this indemnity-cum-undertaking, though
executed, is ineffectual and meaningless because it contains some
blanks. But the question is not of enforcement of the indemnity or
the undertaking. The question is of the Petitioner’s knowledge of

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Page 3 of 5
31st October 2017

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Kamala Laxminarayan Chintakindi v State Of Maharashtra
913-WPL1451-17.DOC

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her allotment of Room No. 5 on the ground floor or Wing “I” and
her acceptance of this allotment. The Petitioner cannot possibly
disavow that acceptance; whether or not the indemnity holds is
immaterial to this question. There is also an affidavit in Marathi at
Exhibit “C”.

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8.It is sought to be argued that this shop No. 5 in the affidavit
does not correspond to the revised plan at Exhibit “A” to the
affidavit in reply filed by Respondent No. 5. It is argued that the plan
was sanctioned only in 2017 but the indemnity-cum-undertaking is
of 2015. The date of sanction is not in itself relevant. That might
happen at a later date well after the submission of the plan. What is
of significance is the assertion that the revision in areas required a
modification of the plans and this is stated in paragraph 4 of the
affidavit in reply. There is no specific denial of paragraph 4 of the
affidavit in reply in the Petitioner’s rejoinder.

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9.It appears that what the Petitioner wants is that she should be
given premises according to the old plan, one that is no longer valid
and which is no longer in consonance with the construction, that
plan having been superseded by the later sanctioned plan; and,
further, demands a smaller area than that to which she is entitled in
law. This is not only unreasonable but it postulates several disputed
questions of fact including as to circumstances of the Petitioner’s
indemnity document. There is also the question of why this
indemnity was not disclosed in the petition. Indeed there is not even
a mention of it. It surely could not have been unknown to the
Petitioner.

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Page 4 of 5
31st October 2017

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Kamala Laxminarayan Chintakindi v State Of Maharashtra
913-WPL1451-17.DOC

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10.These are all sufficient reasons to reject the petition outright.
However, the 5th Respondent through its Advocate makes a
statement that it will, within two weeks from today, deliver physical
vacant possession of the premises shown in the map at page 96
against Annexure 1454 and which is said to measure 172 sq ft. This
statement is accepted as an undertaking to this Court.

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11.In my view, this is sufficient protection. It is not possible to
entertain the other requests or demand made by the Petitioner.

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12.Other than this protection there is no merit in this petition
and it is rejected. There will be no order as to costs.

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(G. S. PATEL, J)

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Page 5 of 5
31st October 2017

Kamala Laxminarayan Chintakindi v. State of Maharashtra through Government Pleader and 4 Ors.

Case brief

What is this about?

What did the court decide?

Kamala Laxminarayan Chintakindi v. State of Maharashtra through Government Pleader and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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