1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1321 OF 2009 Shri Laxman s/o Vithoba Sandav .... Appellant Vs. Maharashtra Housing and Area .... Respondents Development Authority & Ors. Mr.R.A. Revankar i/by M/s A.G. Revankar & Co. for appellant. Mr.S.P. Thorat, Advocate for respondents no.1 and 2. Mr.G.R. Mishra, Advocate for respondent no.3. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 17th December, 2009 P.C. 1. Admit. (SMT.R.P. SONDURBALDOTA,J) 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1832 OF 2009 IN FIRST APPEAL NO.1321 OF 2009 Shri Laxman s/o Vithoba Sandav .... Applicant Vs. Maharashtra Housing and Area .... Respondents Development Authority & Ors. Mr.R.A. Revankar i/by M/s A.G. Revankar & Co. for applicant. Mr.S.P. Thorat, Advocate for respondents no.1 and 2. Mr.G.R. Mishra, Advocate for respondent no.3. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 17th December, 2009 P.C. 1. By this Civil Application, the applicant seeks two directions against respondent no.3. Firstly to allot the applicant one residential flat in the reconstructed building in lieu of the old residential room and secondly to keep one shop reserved in the reconstructed building for allotment to the applicant. The application is opposed by all the respondents. It is contended by respondent no.3 that the applicant has already been allotted flat no.502 in the reconstructed building and has been handed over its possession. At the same time, his son, Uttam was allotted adjoining flat No.501. Though both had refused to sign the possession receipt, Uttam has admittedly been residing in flat No.501. The applicant however claims to have been residing in a building by name “Bhagirathi”, which is situate opposite the reconstructed 3 building of “Chirayu Apartments”. In view of the dispute raised by the applicant as regards allotment of flat No.502, Officers of respondents no. 1 and 2 were directed to visit flat no.502 and to make a report as regards its possession. However, the Officers, instead of visiting the flat and making a report, filed an affidavit on 11th December 2009 made on the basis of the record maintained by these respondents. In the circumstances, by the order passed on that day, fresh directions were issued to the officers in following terms : “In these circumstances, it is directed that a responsible officer of respondents no.1 and 2 shall visit flat No.502 in order to find out its possession. The officer shall note whether the premises are occupied by anybody or the same are kept locked. If the premises are found to be locked, since the appellant claims that he has not been put in possession thereof, the officer may break open the lock of the premises and find out whether the same occupied by anybody. Thereafter, the officers shall put a separate lock to the premises and produce the keys thereof in the court along with the affidavit of the officer who visits the premises. The officer shall also report about the condition of the premises from inside. This direction is specifically given in view of the allegations made by the respondents that the common wall between flat no.501 and flat no.502 has been removed and both the flats are being used as a single Unit by the appellant and his son by keeping the lock on the door of flat No.502 intact and accessing it through flat no.501. If the officer of respondents no.1 and 2 finds out a third person in possession of the premises i.e. a person other than the appellant or his son or their family 4 members, he shall make specific report of the same with the details of the name and occupation of the person” 2. Accordingly Sanjay Jagannath Jadhav, Deputy Engineer of respondent no.2 visited the flat no.502 along with Mr.R.C. Sheth, Executive Engineer, Mr.Patole, Deputy Engineer and Mr.K.D. Patil, Sectional Engineer on the same day i.e. 11th December 2009. They jointly inspected rooms no.501 and 502 and have submitted the report. The report makes shocking revelations confirming the apprehensions expressed by respondent no.3. The observations made by the Officers of respondents no.1 and 2 in the report are as follows : 1) Both the rooms i.e. room no.501 & 502 are observed that same are in possession of Shri Uttam Sandav and Laxman Sandav family and the following family members were present. i) Smt.Uttara Laxman Sandav ii) Kum. Tanmay Uttam Sandav iii) Smt.Mahananda Laxman Sandav were present at this time. 2) Smt.Mahananda Laxman Sandav has informed us that room no.502 is under possession of Mr.Laxman V.Sandav. 3) The main door of room 502 is covered by plywood sheet and it is in closed condition. Therefore we could not lock it. 4) The main door is closed but room no.502 is made accessible from room no.501. 5) The internal wall between room no.501 and 502 has been broken in order to create door to enter in room no.502, so the said room is accessible from adjoining room no.501. 5 6) As per office record, the room no.502 is allotted to Shri.Laxman V. Sandav. 7) No Sublette is in room no.502. 8) The room no.502 is in possession of Shri Laxman Sandav’s family. 3. The photographs taken by the Officers fully support the report. Today when the application was being heard, Mr.Revankar who was appearing for the appellant took discharge from the proceedings. Thereafter the applicant made his own submissions to the Court. He also insisted that a letter written by his daughter- in-law be taken on file. The letter confirms the report made by the Officers in no uncertain terms as regards the condition of flats No.501 and 502. The report made by respondents no.1 and 2 and the letter tendered by the applicant makes it clear that the possession of flat No.502 was handed over to the appellant in lieu of the old residential premises and that he and his family have been enjoying the same since then thereby falsifying the stand of the appellant. Therefore, there is no question of giving any direction in terms of prayer clause (a) of the Civil Application. As regards the commercial premises, it has been held by the trial Court that the appellant has failed to establish that he was in possession of any commercial premises. Therefore, there can be no direction in respect of the commercial premises as well. Hence, the Civil Application is dismissed. (SMT.R.P. SONDURBALDOTA,J)