1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.6533 OF 2009 Kishore Shankar Shinde ...Petitioner Vs. Estate Manager -V Maharashtra Hsng. & Area Development Authority & Anr. ...Respondents WITH WRIT PETITION NO.6534 OF 2009 Mrs. Pooja Parshwanath Malvankar ...Petitioner Vs. Estate Manager -V Maharashtra Hsng. & Area Development Authority & Anr. ...Respondents WITH WRIT PETITION NO.6862 OF 2009 Ms.M. D’ Costa ...Petitioner Vs. Estate Manager -V Maharashtra Hsng. & Area Development Authority & Anr. ...Respondents WITH WRIT PETITION NO.6863 OF 2009 I. V. Pujari ...Petitioner Vs. Estate Manager -V Maharashtra Hsng. & Area Development Authority & Anr. ...Respondents 2 WITH WRIT PETITION NO.6864 OF 2009 Nandkumar H. Malwankar ...Petitioner Vs. Estate Manager -V Maharashtra Hsng. & Area Development Authority & Anr. ...Respondents Mr. R.S. Desai i/b. Mr. Kunal Bhanage & Mr. Vasant Bhanage Advocate for the Petitioners in WP. Nos.6533/2009 to 6864/2009 Mr. G.W. Mattos, Advocate for Respondent No.1 in WP Nos.6533/2009 to 6864/2009 Mr. R.V. Govilkar i/b. Mrs. D.V. Raut, Advocate for Respondent No.2 in WP Nos.6533/2009 to 6864/2009. CORAM : SMT.ROSHAN DALVI, J. DATED : 15TH FEBRUARY, 2010 P.C. : 1. The Petitioner owns and occupies a structure in the premises of the second Respondent Society which is on Maharashtra Housing And Development Act, 1976 (MHADA) land. The Petitioner has been issued notice to vacate the structure as it was unauthorisedly constructed near the building of second Respondent Society appurtenant to building No.25. If the Petitioner himself does not remove the structure within 7 days of the order the Respondent is directed to evict the Petitioner using reasonable force, if required. The order came to be passed on 29th September 2007. It has been challenged in Appeal before the Appellate Officer of MHADA. The Appellate Officer has confirmed the order of eviction. However he has directed that MHADA would shift the structure of the Petitioner to other 3 place within a period of 6 weeks and not demolish the Petitioner’s structure until then. The Petitioner has been directed to vacate the land in question as per the eviction order of the Competent Authority. The Petitioner has challenged that order in this Petition. 2. Since alternate accommodation was not offered to the Petitioner the Petitioner moved before the Appellate Officer in contempt. The Appellate Officer of MHADA passed an order that the direction to shift the structure of the Petitioner was given on humanitarian and sympathetic ground and would not prohibit MHADA to execute the eviction order, if that direction is not complied. It observed that it was in the discretion of MHADA to shift the Petitioner and that shifting the structure cannot be claimed as a right by the Petitioner because the Petitioner is not entitled to alternate accommodation. Consequently the Contempt Petition has been rejected. The Petitioner has challenged that order also in the Writ Petition. 3. The fact that the Petitioner has a structure appurtenant to building No.25 is admitted. The Petitioner contends that it is not on MHADA land. The building has been constructed by MHADA. The Petitioner must show that the land appurtenant to the building has been transferred by MHADA to any other person including the Society. No such transfer is effected and no such transfer is shown. 4. Mr. Mattos has drawn my attention to Rule 6 of the Maharashtra Housing And Area Development Estate Management, Sale, Transfer Regulations, 1981. Rule 6 run thus:- 4 “6. Procedure for allotment. 1. The tenements may be allotted either on the basis of monthly tenancy, or on the basis of sale by deferred payment or on the basis of outright sale. 2. The allottees of tenement shall hold the tenements as Authority premises until the said tenement, after the payment of all the dues of whatever nature is made to the Authority, are duly conveyed to a Co-operative Housing Society or to a Company or to Association. 3. ........... 4. On such allotment under clause (1) the building together with the land underneath and appurtenant thereto shall vest in, and belong to, the Government or as the case may be, the Corporation, and shall be held by it on such conditions and restrictive covenants as may be specified by the Board in this behalf, regard being had to the common service and amenities, common areas and facilities available in relation to such building and the adjoining property of the Authority, if any, including water tanks, water connections, electric installations and the like.” 5. Consequently, it is seen that the tenements constructed by MHADA, which admittedly tenements in Respondent No.2 Society have been, may be allotted to persons on monthly basis or on outright sale. This would continue until the tenements are conveyed to a Co-operative Housing Society. Upon the allotment made, the building and the land underneath and appurtenant thereto shall vest and belong to the Government or the Municipal Corporation. Consequently, though the Co-operative Housing 5 Society would be formed the land underneath the building and the land appurtenant to the building can never form a part of the Housing Society. 6. Mr. Mattos also drew my attention to Section 190 of the Maharashtra Housing And Area Development Act, 1976 (the Act) under which the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (MOFA) shall not apply to MHADA Authority and/or to the land or building belonging to or vesting in any such Authority. It is an admitted position that the land and the building belongs to MHADA in which tenements have been constructed by MHADA and allotted on monthly rental basis to the tenement holders. The Co-operative Society has not been formed. Consequently, the building and the land underneath and appurtenant thereto remains with MHADA and does not vest in the Government or in the Municipal Corporation. Consequently, the Estate Manager has jurisdiction to decide the eviction cases under MHADA. 7. Mr. Mattos drew my attention to the Divisional Bench judgment of this Court in the case of Shriniwas Krishna Suvarna Vs. Executive Engineer, Transit Camp Division, Mumbai 2005(3) ALL MR 321 in which it is held that under Section 2(4) of the Act Authority premises means a premises belonging or vested in MHADA. Under Section 2(27) of the Act the premises would mean any land or building and under Section 2(25) of the Act an occupier being a person liable to pay damages for the use and occupation of the land, would fall within Section 66(1)(b) of the Act. If he unauthorisedly occupies any premises (which means land) he would be 6 liable to vacate the premises. 8. Since the Petitioner admittedly occupies some land which is appurtenant to Building No.25 of Respondent No.2 Society by virtue of having his structure constructed thereon he falls within the mischief of Section 66(1) (b) of the Act as an unauthorised occupant liable to be vacated. 9. Such order of vacation to be passed by the Estate Officer and in Appeal by the Appellate Officer would be an order of eviction simplicitor. Under no provision of MHADA Act he be granted an alternate accommodation. 10.The Petitioner insists upon an alternate accommodation. MHADA is not enjoined to provide any alternate accommodation. The Petitioner claims that his structure is in slum. The Petitioner has not shown any declaration of a Slum by way of any notification applying to the disputed land. The Petitioner claims that the structure is cessed. The Petitioner has also not produced any document of MHADA showing his structure cessed by MHADA. Consequently, the Petitioner would not be entitled to any alternate accommodation upon being evicted. Hence the impugned order in the Contempt Petition taken out by the Petitioner has clarified that fact. The challenge to that clarification, therefore, cannot be sustained. The Petition has no merit. Hence it is dismissed. (SMT.ROSHAN DALVI, J.)