WP-LOD-3012-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.3012 OF 2010 Smt.Amarjeet Karu w/o Joginder Singh .. Petitioner Versus Mumbai Housing and Area Development Board and Ors .. Respondents Ms.S.S.Singh for the petitioner. Mr.G.W.Mattos, A.G.P for the State. Mr.S.G.Surana for respondent No.3. Mr.P.K.Dhakephalkar a/w R.N.Kachare for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January 2011. P.C.: . This petition under Article 226 of the Constitution of India impugns an order passed by the Mumbai Housing and Area Development Board (unit of MHADA-the 2nd respondent, the Executive Engineer of the said Division) under section 95A of the Maharashtra Housing and Area Development Act, 1976. The said order directs that the petitioner should vacate the premises (existing premises) so as to facilitate implementation of a re-development scheme. A copy of this order is annexed at page 243 of the petition paperbook. The order proceeds on the basis that “Sukhmani” Juhu Himalaya Co-operative WP-LOD-3012-10 2 Housing Society has been allotted a plot of land at Juhu Vile Parle Development Scheme and details of the said allotment made by MHADA are set out in the order. It is stated that on this plot there is a building which has about 40 flats. 2 This society has decided to re-develop its property and for that purpose executed agreement with M/s.Moon Land Builders Pvt Ltd. The resolution of the Society and the details of the agreement are referred to and it is stated that the development of the property will be done in two phases. In the first phase the building occupied by the 40 flat purchasers will not be demolished but all 40 flat purchasers will be accommodated in another building which would be constructed on the said plot. 3 The entire details of this scheme are set out and it is stated that construction of new building has been completed and the B.M.C has issued part occupation certificate dated 20th July 2009. It is then stated that out of 40 flat purchasers 36 have shifted but only four flat purchasers have not agreed to shift. One of them is the present petitioner occupying Flat No.A-17 in the old building. In these circumstances, a request was made to the MHADA to exercise its powers under section 95A and direct these persons to shift. WP-LOD-3012-10 3 Accordingly, a notice was issued by MHADA but it was pointed out to MHADA that a civil suit being Suit No.5094 of 2004 has been instituted by the present petitioner in the City Civil Court, Bombay. The order was passed by the City Civil Court clarifying that the MHADA can resort to section 95A and that is how MHADA resorted to such action, it gave prior notice and thereafter heard the petitioner and her representative. It also heard the other persons who were unwilling to shift. 4 Accordingly, after considering the contentions and perusing the relevant documents, finally, MHADA has directed that the present petitioner should shift from the existing premises within a period of 7 days from the date of the said order which is 24th December 2010 or else the steps will be taken to forcibly evict her. 5 It is this order which is challenged in this writ petition. 6 The learned counsel appearing on behalf of the petitioner raised several contentions including that section 95A could not have been invoked in the present case. Her submission is that the said proceedings can be initiated only against non co-operating members of the Co-operative Housing Society which WP-LOD-3012-10 4 has been allotted a plot of land by MHADA and on which a building has been constructed by it. The petitioner has asserted her legal rights against the Society and the developer by filing firstly a dispute under 91 of the Maharashtra Co-operative Societies Act, 1960 and civil suits being Suit No. 5094 of 2004 and Suit No.2635/10. Merely because the petitioner is asserting her legal rights, she cannot be termed as non co-operative member and therefore termed as obstructing the scheme and hence liable to be forcibly evicted. The basis or foundation for entire action is, therefore, illegal and MHADA could not have resorted to the said provision. 7 On the other hand, Mr.Mattos appearing for the respondent Nos.1 and 3, Mr.Surana appearing for the Society and Mr.Dhakephalkar, learned senior counsel appearing for the builder and developer have all contended that the civil suits filed by the petitioner may be pending but there is no impediment or injunction so also prohibition in any of the orders of that Court by which MHADA has been prevented from exercising its power under section 95A. These are statutory provisions and they are vested in MHADA. Those powers could not have been made subject matter of any challenge in a civil suit and in any event there is a clarification that MHADA can resort to the same. Further, the Society and the developer being contending that the claim of the petitioner WP-LOD-3012-10 5 to more area than the one shown in the scheme and particularly the details attached to the development agreement, is not supported by any document. There is nothing on record which would indicate that the petitioner was occupying a flat and adjoining terrace. There may have been some internal changes made by the petitioner but nonetheless the area as certified by the Society is valid and proper. The same is supported by the municipal records as well. For all these reasons this Court should not interfere with the order under challenge and dismiss this petition. 8 After the counsel were heard at some length and with their assistance the relevant documents have been perused, what has been brought to my notice by the petitioner’s advocate is that the petitioner is entitled to a flat and an adjoining terrace. The petitioner has been allotted as permanent alternate accommodation, an area of 475 sq.ft in the newly constructed adjoining building by the Society and developer. This flat is on 7th floor. However, the petitioner does not accept the correctness of the area as certified by the Society and MHADA. While it is not disputed that the petitioner is one of the members against whom the MHADA has proceeded, yet, with appropriate clarifications and undertakings the petitioner is ready and willing to shift to the newly constructed flat on 7th floor admeasuring 475 sq.ft but this shall not be treated WP-LOD-3012-10 6 as a permanent alternate accommodation of the petitioner. If the same is treated as purely temporary or transit accommodation, the petitioner is ready and willing to vacate her existing premises. 9 These certainly are not the proceedings in which the dispute about the measurement and calculation of the area can be gone into and finally decided. The civil suits filed by the petitioner are pending and equally the dispute filed in the Co-operative Court. In either of these proceedings depending upon other facts and circumstances so also the relevant provisions of law, the petitioner can raise appropriate pleas and claim such area as she thinks she is entitled to. Therefore, I do not wish to enter into this controversy in my limited jurisdiction. Presently, the larger interest of justice should be served and that is my endeavour. The scheme of re-development has to go through. Initially four persons have been refusing to vacate their existing premises and one of them is the petitioner. The rest of them, as stated by Mr.Mattos on instructions so also confirmed by Mr.Dhakephalkar that, save and except, present petitioner, others have vacated the premises. Therefore, it is only the petitioner who continues to occupy the existing flat and therefore the building in question cannot be demolished. By appropriate clarifications and protecting the interest of the petitioner, the scheme must be allowed to be implemented and re-development WP-LOD-3012-10 7 work should not be halted or obstructed and that is the endeavour of the statutory authority and so also of this Court. 10 In the light of the rival contentions, following order would serve the ends of justice: (a) The petitioner can shift from the existing premises to 7th floor of the newly constructed building and occupy the area of 475 sq.ft but this shifting and occupation by the petitioner shall be treated as a temporary arrangement and subject to final orders in Civil Suit No.5094 of 2004 and the pending dispute in the Co-operative Court filed by the petitioner. It shall be without prejudice to the rights and contentions of all parties in that suit. All contentions and pleas in so far as the entitlement of the plaintiff to a larger area are kept open and the Civil Court so also the Co- operative Court will decide the matter uninfluenced by the order passed in this writ petition. (b) The petitioner is given two weeks time to shift and vacate the existing premises and if within this period the petitioner does not shift, MHADA will be entitled to enforce and execute the order passed on 24th December 2010 by forcibly evicting the petitioner. However, such WP-LOD-3012-10 8 forcible eviction of the petitioner and her shifting to the premises as stated above, will be subject to the final orders in the civil suit and the dispute and will be without prejudice to the rights and contentions of all the parties therein. Such execution and enforcement of the order will not prevent the petitioner from raising appropriate pleas including that her shifting to the newly constructed premises is a purely temporary or transitory arrangement. (c) Needless to clarify that the Society and the builders and developers will abide by all such orders and directions of the City Civil Court and Co-operative Court subject to their legal rights and contentions. (d) The writ petition is disposed off in the above terms. (e) No orders as to costs. . Since the petitioner is claiming a larger area than the one shown in the municipal and society records and has moved the Civil Court, Mr.Dhakephalkar, the learned senior counsel appearing for the respondent No.5 on instructions makes a statement that on the 7th floor of the newly constructed building a flat admeasuring 475 sq.ft will be provided to the petitioner in terms of this order and an additional area of 350 sq.ft on the same floor and adjoining WP-LOD-3012-10 9 the flat admeasuring 475 sq.ft will be kept vacant and shall not be allotted to any third party until the civil suit and the dispute are disposed off. This additionally protects, in my opinion, the entitlement of the petitioner, if any. . At this stage Mr.Mattos appearing on behalf of respondent Nos.1 and 2 brings to my notice the order passed by City Civil Court dated 29th December 2010 in Notice of Motion No.2564 of 2010 of 2010 in Suit No.2635 of 2010 and submits that this order has restrained the Society and the developer from demolishing the building. . He, therefore, submits that even if the order under section 95A is upheld and the petitioner is forcibly evicted in terms thereof, yet, the building cannot be demolished by virtue of this order. This apprehension is supported by the Society as well as developer. . To my mind, the scheme is of re-development of the Society’s property. That scheme envisages demolition of the existing building and after the newly constructed building is ready and fit for occupation. That building is now ready and found to be fit for occupation. 39 out of 40 members have shifted there. The petitioner was the sole person who has refused to vacate the existing WP-LOD-3012-10 10 premises and shift to the newly constructed building. That is how the demolition was stalled and even the forcible eviction. Once the building is free and none of the occupants are occupying the same and the petitioner has also agreed to shift as observed above, nothing in law prevents the parties to this writ petition other than the petitioner from demolishing the building because that is how the Society’s property is going to be re-developed in terms of development agreement. In such circumstances, the apprehension that the order of the City Civil Court will still hold the field despite clarifications and directions of this Court, has no basis. That order does not in any manner prevent the enforcement by the MHADA of its orders and actions and equally the developer and Society from acting in terms of the development agreement and re-developing the property of the Society by demolishing the existing building. (S.C.DHARMADHIKARI, J)