1 NMS.1662.09-PP.8.79-S.842.80 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1662 OF 2010 IN PAUPER PETITION NO. 08 OF 1997 IN SUIT NO.842 OF 1980 Abu Sufiyan Rahimulla Shaikh & Ors. ...Plaintiffs Vs. Khursheedali S/o. Haji Mansoorali Abid Ali & Ors. ...Defendants And 1. Saidunnissa Co-operative Hsng. Soc. Ltd. 2. M/s. Mark Constructions ...Respondents Mr. M.M. Bagadia for Plaintiff Mr. Rafiq Dada, Sr. Advocate with Mr. Behram Sroff for Defendant Nos.3 to 8/Applicant. Mr. P.K. Dakhephalkar, Sr. Advocate i/b. Taher & Co. for Defendant No.3 (d) Mr. D.D. Madan, Sr. Advocate i/b. Nandlal Kothari & Sabir Vasant and Co., for Defendant 1(a to d) CORAM : SMT. ROSHAN DALVI, J. DATED : 4TH FEBRUARY, 2011 P.C. : 1. The Defendant No.3(d) has taken out this Notice of Motion for making the Respondents party Defendant No.9 in the suit and for permitting them to sell and convey to the Respondents one of the suit properties being property under C.S.No. 054 of Tardeo Division alongwith Building known as Saidunissa 2 NMS.1662.09-PP.8.79-S.842.80 House previously known as Rabbunisa Manzil situated at 48/50, Sleater Road, Grand Road (West), Mumbai 400 007. The Defendant No.3(d) has also applied for determining the 1/4th or 1/8th share of the Plaintiffs in the said property, for execution of the Conveyance Deed and registration, for the Respondent to deposit 1/4th or 1/8th share and other reliefs. 2. The property in dispute in the Notice of Motion is one of the many properties left by one Riyaz Ali, expired on 20th August 1978 leaving behind two wives and no issues. The suit is being prosecuted and defended by certain collaterals, sharers and residuaries. The suit is for administration of the estate of the deceased. Evidence is being led. The shares in the suit properties would be determined upon such evidence because the fact that they are heirs is disputed. 3. The original Plaintiff has claimed 1/4th share in all the properties of the deceased including the aforesaid property. She has applied for determination of such share and payment of such share in the suit. 4. Pending the suit and whilst it was filed as a Pauper Petition an order came to be passed by consent of the parties recorded by Justice Pendse as he then was, on 5th December 1979 under which the original Plaintiff was given the property in dispute in this Notice of Motion described as aforesaid for her 3 NMS.1662.09-PP.8.79-S.842.80 maintenance. She was entitled to appropriate the rents and income of the said property for herself. Pending the suit the Plaintiff (then called the Petitioner in the Pauper Petition) as also the Defendants, (then described as Respondents in the Pauper Petition) were restrained from disposing off, selling, mortgaging, encumbering or parting with possession of the properties of the deceased including the property in dispute in this Notice of Motion. 5. The property is a large building consisting of ground plus four upper storeys. It is fully tenanted. It is dilapidated and in urgent need of repairs/reconstruction. 70% of the tenants of the building have consented to redevelop the property. The Respondent is the developer. The parties would have to proceed for redevelopment in accordance with law under Section 103A to The Maharashtra Housing and Area Development Act, 1976 (MHADA). 6. The parties to the suit, or some of them as would be determined by this Court, are the owners in respect of the property. The properties including the property in dispute came to be protected by the aforesaid order dated 5th December 1979 pending the suit. 7. The protection of the properties by the Court by an interim order is for the benefit of whoever that would be entitled to 4 NMS.1662.09-PP.8.79-S.842.80 the property in dispute at the final hearing of the suit subject to their respective claims. However protection of the property cannot be to the detriment of 3rd parties. Tenants of the property are entitled to their legal rights under the tenancy laws to which such protective orders passed in the suit must yield. Of course in view of the specific order restraining disposal, sale etc., of the suit properties, in case of disposal of the properties, by any means, direct or indirect, permission of the Court must be taken. Notice to all the parties must be given. This application is essentially one such. 8. 11 tenants of the building have remained present in Court. They are some of the 73% of the tenants who claim to have consented to redevelop the property. They have produced before me some photographs showing the condition of the property. It is unmistakable that the property is in dilapidated and even dangerous condition. It needs to be urgently redeveloped before the ensuing monsoon. A part of the roof of the property has been removed. 9. The Plaintiff claims that certain repairs of MHADA are in progress. The Plaintiff has opposed the redevelopment as also making the Respondent Defendant No.9. The opposition to redevelopment, aside from being contrary to law, if consent of 70% of the tenants has been obtained, is contrary to equity, justice and good conscience. The Plaintiff claims that the 5 NMS.1662.09-PP.8.79-S.842.80 repairs must continue. The photographs produced by the tenants show that the building is beyond repair. The Plaintiff claims and Mr. Bagaria on behalf of Plaintiff No.1A, who is present in Court, states that if the property has to be redeveloped Plaintiff No.1A would develop the property. It is not for the Court in the Administration Suit to choose or decide who would be the redeveloper. It is for the parties to follow the procedure prescribed by law in that behalf which is outside the purview of the Administration Suit. 10.It is seen that the property has to be redeveloped. It is also seen that the Plaintiff No.1A is agreeable to redevelop the property if he is allowed to do so. Plaintiff No.1A is not a redeveloper by profession. Whereas the rights of the parties to the suit are to be protected and the property itself has to be protected for the parties who may ultimately succeed in the suit, it cannot be at the cost of the human rights of the tenants who inhabit the property. 11.The Defendant No.9 is indeed neither a proper party nor a necessary party to the suit. He need not be made a party Defendant. He may redevelop the property, but in accordance with law. Counsel on his behalf has argued that MHADA has required the parties to give consent or the Court to permit the redevelopment. All the Defendants have agreed to redevelop the property as desired by the tenants. They, however have 6 NMS.1662.09-PP.8.79-S.842.80 not been able to give their consent (NOC) to MHADA in view of the order of injunction dated 5th December 1979. The Court has seen the bona fides of redevelopment. The Court has heard one of the tenants on behalf of some of the tenants who have given consent and who are present in Court who have urged the Court to allow the redevelopment. 12.Hence the following order. 1. The tenants through the Respondents, or any other developer as required by them would be entitled to redevelop the aforesaid property as per the procedure prescribed by law. 2. The NOC of the parties to that extent shall be considered to be given as permitted by this Court. 3. The other reliefs prayed for under Notice of Motion need not be granted at this stage. 4. A list signed by 11 tenants who have agreed to the development is taken on record. 5. 8 photographs showing the present condition of the building are taken on record. 6. This order is stayed for 2 weeks. 7. Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)