- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 1398 OF 2008 Mrs. Aishwarya Atul Pusalkar, ) Indian inhabitant, residing at A/20, ) Balgovindas Society, Manorama ) Nagarkar Marg, Mahim, ) Mumbai-400 016. ) Petitioner Vs. 1. Maharashtra Housing and Area ) Development Authority, having ) its office at Griha Nirman ) Bhavan, Kala Nagar, Bandra ) (East), Mumbai-400 051. ) 2. Mumbai Building Repairs & ) Reconstruction Board, having ) its office at Griha Nirman Bhavan ) Kala Nagar, Bandra (E)- 400 051) ) 3. Executive Enginer, ) FN-GN Division, M.B.R. & R ) Board Dadar (East), Mumbai 400014 ) 4. Resident Executive Engineer, ) M.B.R. & R. Board, Griha Nirman ) Bhavan, Bandra (East) ) Mumbai 400051 ) 5. The Municipal Commissioner ) Municipal Corporation of Greater ) Bombay, B.M.C. having its ) office at Opp. C.S.T. Mumbai-1 ) 6. Executive Engineer, ) Building Proposal (City) III, ) Municipal Corporation of Greater ) - 2 - Bombay, Byculla, Mumbai-011. ) 7. M/s. Buildarch, ) having its office at 1st floor, ) Sankalp Apartment, S. H. ) Paralkar Marg, Shivaji Park, ) Dadar (West), Mumbai- 028. ) 8. Mr. Atul Shivram Pusalkar, ) Indian inhabitant, residing at ) B/1101, Kohinoor Tower, ) Bal Govindas Road, near ) Ruparel College, Dadar (West) ) Mumbai 400 028. ) 9. Smt. Shobhana Shivram Pusalkar ) Indian inhabitant, residing at ) B/1101, Kohinoor Tower, Bal ) Govindas Road, near Ruparel ) College, Dadar (West), ) Mumbai 400 028. ... Respondents Mrs. Vijaya Laxmi Nikam, for the petitioner. Mr. S. P. Thorat, for the respondent Nos. 1 to 4. Mrs. P. A. Purandhare, for the respondent Nos. 5 & 6. Mr. Sanjay Kadam with Ms. Shobha Khavnekar & Ms. Apelsha Shame i/b Kadam & Co. for the respondent No. 7. Mr. N. V. Gangal i/b Dhanashree Shende, for the respondent Nos. 8 & 9. CORAM : F. I. REBELLO & A. A. KUMBHAKONI, JJ. DATE : OCTOBER 15, 2008. - 3 - PC 1. The petitioner is the wife of the 8th respondent and daughter-in-law of the 9th respondent. 2. The grand-father of 8th respondent (hereinafter referred to as 'the husband' for convenience) was owner of certain residential buildings. After his death, the 9th respondent succeeded to the estate of the deceased along with the husband and his married sister. The petitioner was occupying flat No. 5, situated on the second floor of the building along with the husband, 2 minor sons and the 9th respondent mother-in-law. The property was being developed in the year 2004 by the 7th respondent developer. All the occupants of the building were required to vacate the building and shift to the transitory accommodation. 3. It is the case of the petitioner that accordingly she had shifted to the transitory accommodation, provided to her by the statutory authorities who are joined as the respondent Nos. 1 to 6 and that the new building in place of the old one has been constructed and available for occupation and immediate use. . The grievance of the petitioner is that though all other occupants of the old building have been re-housed in the new building, the petitioner is not being re-housed in the new building. It is the contention of the petitioner that in the new building flat Nos. 601 and 602 on the 6th floor have been allotted to family of the husband. Therefore, she claimed that she is required to be re-housed in these premises. The further grievance of the petitioner is that without re-housing her accordingly, the respondents are trying to throw her out of the transitory accommodation. Hence, this petition. 4. In the petition, the petitioner has disclosed the relevant facts which demonstrate that the matrimonial dispute arose between the petitioner and the husband, - 4 - the 8th respondent, which landed into the Family Court by way of a petition filed by the husband seeking a decree of divorce against the petitioner. The Family Court on 30th July, 1993 passed a decree of judicial-separation, which was impugned by the husband in this Court. The husband claimed that instead of judicial-separation, a decree of divorce ought to have been passed by the family court. The petitioner also filed the cross- appeal in this Court, seeking to set aside the decree of judicial separation, so passed by the Family Court and claiming that the the petition filed by the husband seeking divorce ought to have been dismissed entirely by the family court. 5. This Court by its common judgment dated 2nd July, 2007 delivered in both the aforesaid cross-appeals was pleased to dismiss the appeal of the husband and be allowing the appeal of the petitioner herein, set aside the decree of judicial-separation passed by the Family Court. Resultantly, the marriage of the petitioner still subsists. 6. The affidavit-in-reply has been filed by the husband, explaining that in view of the fact that the old building was inherited by the husband, his mother – the 9th respondent and the married sister of the husband, 7th Respondent developer-builder has provided total only 1100 Sq. ft. carpet area in the new building to the entire family of the husband which is divided into 3 portions, though the same id numbered as Flat No. 601 & 602. In the said property, the husband, the mother of the husband – the 9th respondent and the married sister of the husband are entitled to equal share. Consequently his share according to him works outs to the extent of only 379 Sq.ft. . This affidavit also discloses that there are various other civil proceedings which were/are initiated by and between the parties, wherein several orders have been passed at various stages by various Courts. - 5 - 5. We may not refer to the web of the litigation that both the contesting parties has painstakingly woven around them, in the background of the view that we are taking hereunder. . In our view, the claim of the petitioner is based on her contention that she being legally wedded wife of the 8th respondent and the daughter-in-law of the 9th respondent, the petitioner is entitled to occupy flat Nos. 601 & 602 in the newly constructed building. She is claiming such a right on the basis that Flat No. 601 & 602 constitute her matrimonial home. In our opinion, the present Writ Petition is not an appropriate remedy for the petitioner for ventilating her such a grievance and that she can agitate such a claim and make such grievances, by adopting appropriate course of action in the Family Court and/or civil Court for the enforcement of her right of her right that she is claiming herein. In view of the nature of controversy involved between the parties, we hold that it is not possible for us to try entertain and decide the same in exercise of our writ jurisdiction. 7. In view of the aforesaid discussion and the conclusions drawn by us, the present writ petition is dismissed. However, we make it clear that dismissal of this petition will not be a hurdle for the petitioner to seek appropriate relief to which she may be entitled in law, before appropriate form, in a properly constituted proceeding. In case if the petitioner is advised to adopt any such remedy, the observations herein will not be considered one way or the other, while determining the entitlement of the petitioner. Sd/- Sd/- [ A. A. KUMBHAKONI, J.] [ F. I. REBELLO, J.]