1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 2959 OF 2009 IN COURT RECEIVER’S REPORT NO. 213 OF 2009 IN SUIT NO. 543 OF 2000 Smt. Prafullata Rajan Varhadi .. Plaintiff Versus Smt. Pushpalata Chandrakant Chury & Ors. .. Defendants And The Maharashtra Housing And Area Development Authority .. Applicant And The Court Receiver, High Court, Bombay & Anr. .. Respondent. Mr. Uday Warunjikar for the Plaintiff. Mr. P. G. Lad for the Defendants. Mr. G. W. Mattos AGP for the Applicant. Mr. Govilkar for Respondent No.2. Mr. K. D. Rane, S. O. to Court Receiver present. CORAM : MRS. R. S. DALVI, J. DATE : 17th June, 2010. P.C. 1. The Court Receiver’s Report No. 213 of 2009 came to be initially heard by my brother Judge Kathawalla on 10.07.2009. The Applicant was represented. The 2 Applicant was given two weeks time to file its reply to prayer (a) of the reply. Prayer (b) was granted. (2) Prayer (a) of the Report was for direction to the Court Receiver to call upon the Maharashtra Housing and Area Development Authority (MHADA) to issue notice under the Maharashtra Housing and Area Development Act (MHADA Act) as the suit building was dilapidated and to shift the tenants and occupants in transit camp upon necessary charges being paid on behalf tenants and to sanction the proposal of redevelopment submitted by the developers of the owners who are the Plaintiff as well as Defendants in the suit. (3) Since such procedure and direction would be contrary to the statute requiring redevelopment of the property, that was opposed by Counsel on behalf of the MHADA. Consequently two weeks time to file affidavit-in- reply is granted. (4) On the next date of hearing after two weeks the affidavit-in-reply of MHADA was not filed. MHADA was not represented. Hence by consent of the Counsel for the Plaintiff as well as the Defendants, prayer (a) of the Court Receiver’s Report was allowed in the absence of MHADA except the bracketed portion in prayer (a) which portion was to permit the developers appointed by the owner to carry out the development. 3 (5) Prayer (a) would allow the redevelopment as per the proposal of redevelopment submitted by the developer who was appointed by the owners. Such action itself would be against the MHADA Act, despite the bracketed portion prayer (a). It would, therefore, go against the statute requiring MHADA to sanction the redevelopment proposal of the suit building, which is a cessed building, without consent of 70% of the tenants of the building. (6) MHADA has applied for setting aside the order dated 29th April, 2009 on the ground that the order is contrary to the statute and came to be passed upon collusion of the parties to the suit to redevelop the suit property through the Court Receiver as per the proposal submitted by the owners’ developers. (7) Respondent No.2 which is a tenants’ Association supports this application. Mr. Govilkar on behalf of the Respondent No.2 also takes exception to the collusive act of the Plaintiff and Defendants in this suit. (8) It is seen that MHADA had opposed prayer (a) being granted on 10th July, 2009. That is why MHADA was allowed to file its reply to prayer (a) of the Court Receiver’s Report. For the reasons shown in the affidavit in support of this application, MHADA could not and did not file its reply. 4 On the very next date of hearing the order came to be passed essentially because and upon the consent of the parties to the suit. (9) It is a well known fact that MHADA has numerous litigations in the Court and judicial notice is required to be taken of the fact that it may not be possible for that authority to file its reply on the very next date of hearing after order in that behalf is filed. It is also well known that in the interest of justice further time is generally granted to hear the parties on merits. In this case even without hearing MHADA prayer (a) could not have been granted as it would be contrary to statute. Prayer (a) indeed came to be granted only because both the Plaintiff and the Defendants did not object to prayer (a) of the Court Receiver’s Report. (10) The Court Receiver himself came to be appointed in this Suit by consent of the parties. In fact the Court Receiver was discharged by an order of this Court on the ground that his appointment was no longer required when there was no issue between the parties which could be agitated in the suit and the office of the Court Receiver was misused by the parties for having the management of the suit property directed through the office of the Court Receiver. I am told that order was also got set aside by consent of the parties in Appeal and hence the Court Receiver had to undertake the exercise of redevelopment of 5 the suit property by having the vacation notice issued by MHADA, the tenants and occupants shifted to the transit camp and redevelopment done as submitted by the developers of the owners who are the Plaintiff as well as Defendants in this Suit. (11) Under these circumstances it is seen that the agitation by MHADA as well as Respondent No.2, the tenants’ Association is justified and interest of justice would require the lapse on the part of the MHADA in filing the reply to the Court Receiver’s report within 2 weeks of that direction be condoned. (12) Both Counsel on behalf of the Plaintiff and the Defendants concede that the redevelopment of the suit building would have to be undertaken as per the procedure established by law under the MHADA Act. Hence on such concession itself the order dated 29th July, 2009 is required to be set aside and is, therefore, set aside. Consequently the affidavit-in-reply of MHADA to the Court Receiver’s report with regard to prayer (a) is taken on record. Copy is given to the Counsel of the Plaintiff and the Defendants. (13) The Court Receiver’s Report has already been granted in terms of prayer (b). Mr. Mattos on behalf of MHADA upon instructions of the relevant Officer who is to issue vacation notice if required states that only if and when any tenant is required to be shifted and such tenants’ 6 premises are required to be vacated, the MHADA would have such tenants shifted or vacated under the provisions of MHADA Act. (14) Mr. Warunjikar states that he has no objection to the application of MHADA or this order except for the fact that Respondent No.2 which is unregistered association could not have been sued as Respondent No.2 in the application. (15) Consequently the order dated 29.07.2009 in Court Receiver’s Report No. 213 of 2009 is set aside. Prayer (a) of the Court Receiver’s Report No. 213 of 2009 stands refused. Prayer (b) had already been granted earlier. No other order in the Court Receiver’s Report. (16) The Notice of Motion is made absolute in terms of prayer (a). ( R. S. DALVI, J.)