-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8154 of 2009 Abdul Gafoor Dagdu and others. ..Petitioners. Versus The High Power Committee & Others ..Respondents. Mr. S. G. Kudle for the Petitioner. Mr. Patil i/b M/s. Mulani & Co., for the respondent no.3. Mr. V. Masurkar GP a/w Mr. A. B. Vagyani, AGP for the Respondent nos. 1, 2 & 4 – State. Mr. K.S. Dewal for the respondent no.6. Mr. Khaja Hasanuddin for the Respondent no.5. Coram : S. B. Mhase & R. M. Savant, JJ. Date : September 18, 2009. P. C. : 1. Heard the learned counsel for the parties. The Petitioner has challenged the order dated 11th September 2009 passed by the High Power Committee in Appeal No. 49 of 2009. The said High Power Committee was constituted in view of the Full Bench judgment of this Court in the matter of Tulsiwadi Navniraman Co-op. Housing Society and Anr. v/s. State of Maharashtra reported in 2008(1) Bom.C.R. 1. 2. Initially, the Petitioner had approached this Court by filing Writ -: 2 :- Petition No. 5496 of 2009 challenging the order passed by the Competent Authority holding the Petitioner not eligible to get the benefits of the SRA scheme. We brought to the notice of the learned counsel for the Petitioner that in view of the full bench judgment (supra) he will have to approach the High Power Committee. We also granted a protection in favour of the Petitioner so that he can approach the High Power Committee. 3. It appears that the Petitioner has approached the High Power Committee by filing Appeal No. 49 of 2009, the decision of which as referred to above is impugned before this Court in the instant petition. In the said appeal the Petitioner had also preferred an interim application, however no orders were passed on that application. Therefore the Petitioner again approached this Court by filing Writ Petition No. 7760 of 2009. We therefore directed the High Power Committee to dispose of the interim application. After the said directions, it appears that the matter was heard by the High Power Committee on 11th September 2009 and instead of deciding the interim application, the High Power Committee has considered merits of the Appeal itself and has decided the Appeal. The High Power Committee has observed that the record discloses that the structure -: 3 :- known as Goodluck Mutton Shop stands in the name of the Respondent no.6 in view of the Gumasta Licence issued by the Thane Municipal Corporation in his name. The High Power Committee ultimately recorded a finding that the documents are in relation to the said shop, and came to a conclusion that the Petitioner has no right to claim the SRA benefits, and disposed of the Appeal. It also appears that the DC Rules 33(10) of 1991 were pointed out to the High Power Committee, however the High Power Committee has found that those Rules are not applicable to the Thane Municipal Corporation or to any other District as they are only applicable to Mumbai city. Therefore the said Rules were not applied while considering the appeal of the Petitioner. 4. Though the order impugned is of the High Power Committee, the undisputed facts are as follows : . There were three brothers, namely, Usman Qureshi, Abdul Gafoor and Abdul Majid. The land in question on which the structure is situated is government land and it was leased to Abdul Majid – the father of the Respondent no.7. The Petitioner claims that these three brothers were residing together and they were the members of one family and they were doing the business of mutton shop in the said -: 4 :- premises. The lease of the said premises has expired sometime in 1981. Thereafter even though the applications have been made for continuation of the lease, the Government has not continued the lease. However, the Petitioner claims that he is in possession of the said premises alongwith the Respondent no.7. 5. It is further the case and contention of the Petitioner that during the lifetime of Abdul Majid – father of the Respondent No.7, initially they started a mutton shop in the name and style of Goodluck Mutton Shop. Then he claims that shop was divided and the Petitioner started a mutton shop in a part of the premises in the name and style of New Goodluck Mutton Shop. Thus, the Petitioner claims that he is in possession of a part of the property. 6. It appears that Abdul Majid, one of the three brothers expired in the year 1986. It also appears that Usman Qureshi has expired in the year 2005. It appears from the record that after the death of Abdul Masjid in the year 1986, the Respondent no.7 made an application to enter his name in the record of rights and it was accordingly entered. At a later stage the Petitioners along with others have made two applications to the concerned officers, and the Petitioner was called upon by the said officer to state as to whether apart from the names -: 5 :- mentioned in his application is there any other heir or heirs of Abdul Majid. Learned counsel for the Petitioner states that accordingly the affidavit has been filed, but till this date the names as stated in the affidavit have not been recorded in the record of rights. It appears that the area where the Petitioners are carrying on business is a slum area and therefore covered under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Therefore while applying the scheme under SRA, it appears that the society of slum dwellers was formed, which is the respondent no.5 in the present petition. So far as the membership of the said society is concerned, the name of the Respondent No.7 has been shown as member of the said society and person eligible to get benefits of SRA scheme. At a later stage of these proceedings the Petitioner has made an application as stated above stating that he is also entitled to the benefits of the said scheme. The said application is rejected and therefore initially the Petitioner filed writ petition No. 5496 of 2009 before this Court and as stated above the Petitioner was asked to approach the High Power Committee and after exhausting that remedy of High Power Committee the Petitioner has come before this Court. -: 6 :- 7. Learned counsel for the Respondents brought to our notice that the Petitioner has filed Special Civil Suit No. 114 of 2009 in the Court of the Civil Judge, Senior Division, Thane against the Respondents. The prayers made in the said suit are relevant for our purpose, which read as under : “24) It is therefore prayed that : a) It be held and declared that Plaintiff No. 1 is in long, continue, open, peaceful, un-interrupted and settled possession of the suit premises no.1, i.e., Goodluck mutton shop and has become exclusively entitled to the same as a exclusive hlder thereof pursuant to the said family settlement and/or has perfected his title over the said suit premises no.1. b) It be held and declared that Plaintiff No.2 is in long, continue, open, peaceful, uninterrupted and settled possession of the suit premises no.2, i.e., Annapurna Tea Stall and has become exclusively entitled to the same as a exclusive holder thereof pursuant to the said family settlement and/or has perfected his title over the said -: 7 :- suit premises no.1. c) It be held declared and decreed that Plaintiffs and Defendant No.1 are the joint lessee of the land underneath the said premises and said other three premises. d) It be held and declared and decreed that the act of Defendant Nos. 2, 3 & 4 of allotting/recognizing the Defendant No.1 as the sole holder of the suit premises is illegal, fraudulent, ultra vires and malafide. e) ......” 8. What is important to be noted from the averments in the suit is in paragraph no.8 the plaintiffs – Petitioners have stated as under : “The Plaintiff states after the demise of Abdul Majid, there had been oral family settlement whereunder suit premises came to the share of Plaintiffs. Other three premises went to the share of above stated three persons who are as aforesaid in possession thereof. The Mumbra premises even though was/is owned by father of Plaintiff no. 2, as aforesaid under such family settlement, Defendant no.1 was allowed to have it in his possession. other properties at village Ravna remain in joint possession of all the family.” -: 8 :- 9. Thus, the claim of the Petitioner is that he got the property after the death of Abdul Majid in a family settlement. In the said suit the plaintiff has filed an application for temporary injunction and the said application was rejected on 28th May 2009. After the rejection of the said application on 20th July 2009 the Petitioner has withdrawn the said suit unconditionally. 10. So far as the facts brought to the notice by the learned counsel for the Respondent in respect of the pendency of the civil suit is concerned, the learned counsel for the Petitioner submitted that the fact that such suit was filed was averred in the writ petition No.5496 of 2009 and was not suppressed from this Court. He further states that in the said writ petition interim protection orders were passed and under these circumstances the civil suit filed before the C.J.S.D., Thane was withdrawn in order to avoid multiplicity of litigation. 11. Thus what we have to consider is whether the Petitioner is entitled to have benefits of the SRA scheme. What is important to be noted is that accepting for the sake of argument the case as tried to be made out by the Petitioner, it is his own case that the allotment/grant of the land was in favour of the father of the -: 9 :- respondent no.7 and that the said land was though standing in the name of the father of the respondent no.7, it was jointly possessed and enjoyed by three brothers and after the death of the father of the respondent no.7 there was family settlement and a portion of the property was allotted to him. However, it appears from the record that while framing the SRA scheme the structure in question has been considered and the allotment has been made in favour of the respondent no.7. Therefore, on these facts the claim of the petitioner, if any, can be only against the respondent no.7 and not as against the SRA authorities or the State. 12. Learned counsel for the Petitioner relying upon the judgment of this Court in the matter of Taj Mohammed Yakub v/s. Abdul Gani Bhikan reported in 1991 Mh.L.J. 263 tried to submit before this Court that after the expiry of lease period the Petitioner is in possession of the suit premises as trespasser, and thus being a trespasser he is “occupier” of the land and therefore individually and exclusively entitled for the benefit of the SRA scheme. It is important to be noted is that as a result of the expiry of the lease period no-one becomes a trespasser in the property. If the person continues to be in possession of the property he is in the capacity of a lessee “holding -: 10 :- over” as contemplated under section 116 of the Transfer of Property Act. Therefore, the claim which is based on the Petitioner being a trespasser and is therefore entitled to the benefits of the SRA scheme is misfounded. Assuming that the Petitioner is a trespasser, in that event the Respondent no.7 will also be a trespasser and therefore the claim has been considered as against the structure in question and ultimate result is that the Petitioner will have to adopt his remedies as against the respondent no.7. Even though the Petitioner claims that in the family settlement he got the land, from the prayers made in the Special Civil Suit No. 114 of 2009 as noted above, it appears that the Petitioner is also trying to make out a case of adverse possession. Otherwise the words “is in long, continue, openly, peacefully, un- interrupted and settled possession of the suit premises” would not have appeared in the prayer clauses. Even from that angle there is no perfection of title and it is the matter to be considered by the Civil Court and cannot be considered in the writ jurisdiction. Because basically in that event the Plaintiff will have to prove that he was in possession of the property for a long period continuously, openly, peacefully adversally to the real owner of the property with full knowledge to the real owner of the property for the period of 12 -: 11 :- years so as to perfect his title. Apart from that, since the case of the family settlement has been contended and he was one of the members of the family, then in that circumstance the case of the exclusive possession will have to be made out so as to claim title of by adverse possession. Be that as it may, neither in the suit nor in the petition, we find that such averments are made. Therefore, prima facie the possession howsoever long it may be, will not be exclusive possession so as to mature into a title by adverse possession so as to get rights under the SRA scheme. 13. We have perused the impugned order. Both the authorities, namely, the Competent Authority and the High Power Committee, have found that the Petitioners are not eligible to get a separate SRA accommodation. Even though there is consistent finding of the authorities, in view of the submissions made across the bar and since vital right of the Petitioners are involved, we have considered the case thoroughly and thereafter have come to the above conclusion that the orders passed by both the authorities are proper and do not require any interference at the hands of this Court in its writ jurisdiction. In the result, the above writ petition is dismissed. -: 12 :- 14. At this juncture, learned counsel for the Petitioner made a request that the order of status quo may be passed in favour of the Petitioner so as to enable him to approach the Apex Court and get appropriate protection from the Apex Court. We have heard the Respondents on this point. They vehemently opposed the grant of such relief of status quo as according to them any protection granted would hinder the implementation of the SRA scheme. However, in the interest of justice we direct the parties to maintain a status quo for a period of four weeks from today so as to enable the Petitioners to approach the Apex Court. (R.M.SAVANT, J.) (S.B.MHASE, J.)