AISHWARYA ATUL PUSALKAR versus MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS.
[2020] 6 S.C.R. 342, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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AISHWARYA ATUL PUSALKAR
v.
MAHARASHTRA HOUSING & AREA
DEVELOPMENT AUTHORITY & ORS.
(Civil Appeal No. 7231 of 2012)
APRIL 27, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Maharashtra Housing and Area Development Act, 1976 –
ss.2(25), 79, 95A and 177 – Family property of respondent no.8-
husband was redeveloped – During redevelopment, occupants
thereof shifted to temporary accommodation as required,
appellant-wife did not – She shifted on the order of High Court
passed in matrimonial proceeding pending between the parties –
In parallel developments pertaining thereto, the decree of judicial
separation granted to respondent no.8 was set aside – Plea for
divorce, dismissed – Appellant filed writ petition inter alia for
directions to MHADA to rehouse her in the two flats allocated to
respondent no.8 and his family in the redeveloped building, which
as per her is her matrimonial home – Dismissed – Held: When a
builder has discharged his obligation by accommodating the
original owners in the redeveloped portion as per such a scheme,
a lady married into that family is not entitled to invoke the writ
jurisdiction of High Court to enforce her right to matrimonial home
on the basis of said statute, if her husband does not permit her to
reside in the allocated portion – Though appellant was dishoused
as an occupier applying the provisions of 1976 Act, claim of her
rehousing is based on her status as respondent no.8’s wife – As
of
now, the decree of judicial separation stands invalidated and
she is the legally wedded wife of respondent no.8 – However, the
original building that constituted her matrimonial home has been
demolished and large portions of the redeveloped building on
the same plot has been parted with – Traditionally, her
matrimonial home at present would be the premises in which her
husband is residing – Judicial forum having fact-finding
jurisdiction would be the proper forum for adjudicating claim
of this nature – Further, respondent no.8 and the builder
uniformly stated that a flat in the same building is available to
accommodate the appellant – Dispute pending for very long,
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directions issued u/Art.142 – Protection of Women from Domestic
Violence Act, 2005 – Hindu Adoption and Maintenance Act, 1956.
Disposing of the appeal, the Court
HELD: 1.1 The position as it stands now is that the decree
of judicial separation stands invalidated and as of now, the
appellant is the legally wedded wife of the respondent no.8. She
has been out of her matrimonial home since the year 2000. But
such right cannot be enforced invoking the writ jurisdiction.
Moreover, the original building that constituted her matrimonial
home has been demolished. Large portions of the redeveloped
building on the same plot has been parted with. Now going by its
traditional meaning, her matrimonial home at present would be
the premises in which her husband is residing. In this complex
perspective, a judicial forum having fact-finding jurisdiction would
be the proper forum for adjudicating her claim of this nature. The
appellant drew attention to Section 177 of the Maharashtra
Housing and Area Development Act, 1976 to contend that
disputes arising out of the said Act cannot be adjudicated upon
by a Civil Court. But, the dispute raised by her does not arise
out of any of the provisions of the 1976 Act. Though she was
dishoused as an occupier applying the provisions of the 1976
Act, claim of her rehousing is based on her status as wife of the
respondent no. 8. Such claim has to be adjudicated upon by the
Civil Court or the Family Court or any other forum the law may
prescribe. Such right of the appellant cannot be diffused with the
right of her husband under the 1976 Act, whose family property,
part of which he is the owner, has been reconstructed. [Para
11][353-C-F]
1.2 The Bombay High Court has in substance non-suited
her on the ground that the Writ Court was not the appropriate
forum for granting her relief.  The Court does not per se find any
error in such approach. But, in course of this appeal, the husband
(respondent no. 8) has filed an affidavit stating that he has set
apart the Flat No. 101 in which the appellant could be
accommodated. The appellant on the other hand has asserted
that the allocation of the same flat was earmarked for one Mr.
Nayak Satam, a tenant, as per the plan. Considering the fact that
the dispute is pending for a very long time, certain directions
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given in exercise of jurisdiction under Article 142 of the
Constitution of India which will conclude the dispute. This is
having regard to the fact that the builder and the husband of the
appellant have uniformly stated that Flat No. 101 in Om
Apartment is available to accommodate the appellant. The
appellant should be given the choice of occupying that flat as her
residence. For this purpose, however, certain cautionary measures
are also necessary to ensure that the said flat is not otherwise
parted with or encumbered in any form. [Paras 12, 13][353-G-H;
354-A-C]
1.3 In the event, however, the appellant wants to establish
her right to reside in her matrimonial home with her husband,
she shall be at liberty to approach the Family Court or any other
forum of competent jurisdiction, as she may be advised. But in
such a situation, she would not be entitled to claim any right
specifically in respect of Flat No.101 at Om Apartment on the
basis of directions issued in the preceding paragraph including
the four sub-paragraphs thereof. The appellant shall vacate her
existing accommodation for which expenses appears to have been
and continues to be incurred by the Respondent No. 8.  The fact
of incurring such expense has been pleaded in the additional
affidavit filed on behalf of Respondent No. 8, verified on 29th
August 2019. Appellant given eight months’ time to vacate her
present residence. In the event she chooses to opt
for Flat No.
101 in “Om Apartment” as her residence, and the other
conditions specified in paragraph 13 and its various sub-
paragraphs are satisfied, then she shall vacate her present
premises from the date she takes possession of the flat at “Om
Apartment”. Respondent No.8 shall give her possession of the
said premises on a date mutually convenient to the appellant and
the Respondent No.8 within the aforesaid period of eight months.
Otherwise, the course to be taken by her shall be guided by the
direction that may be given by a Court of competent jurisdiction,
which the appellant may approach. Till the time the appellant
retains possession of the present residential accommodation,
which period shall not exceed eight months, the respondent no.8
shall continue to pay rent thereof and her possession thereof
shall not be disturbed. The obligation of the respondent no.8 to
pay rent and ensure peaceful possession of the present
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residential unit of the appellant shall not exceed the eight months
period, as stipulated. Unless of course, a Court of competent
jurisdiction issues any other direction at the instance of the
appellant. [Paras 14-16][355-C-H; 356-A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7231
of 2012.
From the Judgment and Order dated 15.10.2008 of the High Court
of Judicature at Bombay in Civil Writ Petition No. 1398 of 2008.
 Bhargava V. Desai, Satyajit A. Desai, Ms. Anagha S. Desai,
Chirag M. Shroff, Ms. Mahima C. Shroff, Ms. Yashika Verma, Nitin V.
Gangal, Sachin Patil, Ranjit Kumar Rathod, Ms. Sheetal Patil, Advs. for
the Respondents.
Appellant-in-person.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
1. The original writ petitioner, who is the appellant in this proceeding
seeks to enforce her right to reside in her matrimonial home. The location
of the house where she wants to establish her right to reside is comprised
in two flats (nos.601 and 602) in a building situated on plot No.118,
Dr. M.B. Raut Road, Shivaji Park, Dadar, in the metropolis of Mumbai.
The family of her husband (respondent no. 8) were originally the owners
of the said plot, on which stood a residential building known as “Usha”.
We find from an additional affidavit filed in this proceeding affirmed on
29th August 2019 by the respondent no. 8 that the said building was
originally owned by three branches of the “Pusalkar” family in equal
proportion. The branch of the
respondent no. 8 stemmed from Shivram
Dattatryea Pusalkar, carpet area of 1100 sq.ft. comprised of their share.
On death of said Shivram Dattatreya Pusalkar, his share devolved in
equal proportion to his widow Shobhana Shivram Pusalkar (since
deceased), their daughter Gayatri Pratap Puranik and the respondent
no. 8. That building upon demolition was redeveloped by a firm of builders,
BUILDARCH. Such redevelopment was done after obtaining a no
objection certificate from the Mumbai Building Reforms and
Reconstruction Board (Board) in terms of the provisions of Maharashtra
Housing and Area Development Act, 1976 (1976 Act). Under a scheme
approved under the provisions of the said Act, during the period of
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redevelopment, the occupants were required to shift to transit or
temporary accommodations. The appellant’s contention is that such
exercise of redevelopment had been undertaken in pursuance of a statutory
scheme framed under Section 79 of the 1976 Act which has provisions
for rehabilitation of dishoused occupiers. The members of the family of
the appellant after her marriage, comprising of her husband and mother-
in-law appear to have had shifted to the transit accommodation in the
year 2000. The appellant-writ petitioner remained in the original building
with her two minor sons. Respondent No. 8, Atul Shivram Pusalkar,
however, has claimed that both their sons are major by age now and are
working with him in his business. Respondent No. 8 has also stated that
one of his two sons is residing with him.
2. As the appellant had continued to reside in the old building, the
MHADA authorities issued a notice upon her under Section 95-A of the
1976 Act. The said provision stipulates:-
“95-A. (1) Where the owner of a building or the members of the
proposed co-operative housing society of the occupiers of the
said building, submits a proposal to the Board for reconstruction
of the building, after obtaining the written consent of not less than
70 per cent of the total occupiers of the building and a No Objection
Certificate for such reconstruction of the building is issued by the
Board to the owner or to the proposed
co-operative housing society
of the occupiers, as the case may be, then it shall be binding on all
the occupiers to vacate the premises:
Provided that, it shall be incumbent upon the holder of such No
Objection Certificate to make available to all the occupants of
such building alternate temporary accommodation.
(2) On refusal by any of the occupant to vacate the premises as
provided in sub-section (1), on being approached by the holder of
such No Objection Certificate for eviction of such occupiers, it
would be competent for the Board, notwithstanding anything
contained in Chapters VI and VII of this Act, be liable for summary
eviction.
(3) Any person occupying any premises, land, building or structure
of the Board unauthorisely or without specific written permission
of the Board in this behalf shall, notwithstanding anything contained
in Chapter VI and VII of this Act, be liable for summary eviction.
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(4) Any person who refuses to vacate such premises or obstructs
such eviction shall, on conviction, be punishable with imprisonment
for a term which may extend to one year or with fine which may
extend to five thousand rupees, or with both.”
3. The appellant thereafter had shifted to a temporary
accommodation as directed by an order of a Single Judge of the Bombay
High Court in Civil Application No. 2967 of 2000. This application was
taken out in connection with an appeal arising out of a matrimonial
proceeding pending between the appellant and respondent no. 8 at that
point of time. We shall refer to that proceeding later in this judgment. On
her vacating the premises, redevelopment work stood completed and
the new building constructed on the said land was given its identity as
“Om Apartment”.
4. The mother of the respondent no. 8 passed away before
institution of the present appeal. Her interest in this proceeding is being
represented by the respondent no. 8 himself and his sister, Gayatri Pratap
Puranik (respondent no.9 in this appeal). From the counter-affidavit of
the MHADA Authorities, we find that certain arrangement was entered
into between the builder and the family of the appellant’s husband.
Relevant particulars of such arrangement would appear from paragraphs
8 (a) to (e) of the said affidavit of MHADA and the authorities constituted
under the 1976 Act (respondent nos. 1 to 4) in this appeal. These
paragraphs read:-
“8. (a) The Petitioner’s
husband (i.e the Respondent No.8 herein),
her mother in law and her sister in law (the Respondent No.9
herein) were co-owners of collective 1/3rd undivided share, right,
title and interest in the property bearing Plot No. 118, Dr. M.B.
Raut Road, Shivaji Park, Dadar Mumbai 400028 and in the old
building standing thereon. As such, the petitioner along with her
two sons and the said co-owners was in common occupation of a
residential premises admeasuring around 1100 sq. ft (carpet) in
the old building standing on the said property. The Petitioner has
referred to the said old residential tenement as her matrimonial
home.
(b) It is learnt that vide an agreement dated 1.07.1999 executed
between the said co-owners and the Respondent No. 7, the co-
owners had agreed to sell, convey and transfer their collective
1/3rd undivided share, right, title and interest in the said property
AISHWARYA  ATUL PUSALKAR v. MAHARASHTRA HOUSING &
AREA DEVELOPMENT AUTHORITY [ANIRUDDHA BOSE, J.]
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for the consideration and on terms and conditions recorded therein.
Under the terms of the said agreement, the Respondent No.7 had
agreed to provide to the co-owners as and by way of permanent
alternative accommodations, three premises, collectively
admeasuring 1100 sq.ft. (carpet) in lieu of area occupied by them
in the old building standing on the said property. Being the legally
wedded wife of the Respondent No.8, the Petitioner had a right
to reside along with her husband in the temporary alternate
accommodation and permanent alternate accommodation allotted
to him either along with the remaining co-owners or independently.
(c) As the matrimonial dispute between the Petitioner and
Respondent No.8 was going on when the aforesaid agreement
was executed, the Respondent No. 7 at the insistence of the
Petitioner and the Respondent No.8, provided her an independent
temporary alternate accommodation at Room No.20, 1st floor,
Balgovinddas Society, Manorama Nagarkar Marg, Matunga,
Mumbai 400016.
(d) The answering respondent has learnt that in pursuance to an
Agreement for Assignment dated 16.6.2004 executed between
two amongst the said co-owners viz. Smt. Shobhana Shivram
Pusalkar (Petitioner’s mother-in-law) and Mrs. Gayatri Pratap
Puranik (the Respondent No.9 herein) being the Assignors and
the Respondent No.7 being the Assignee, the said Assignors have
forever and absolutely assigned and transferred in favour of the
Respondent No.7, their respective share i.e. 733 sq.ft.(carpet)
area out of 1100 sq.ft. (carpet) area agreed to be allotted to them
under the said agreement for consideration and on the terms and
conditions recorded therein. The aforesaid facts have also been
deposed by the Respondent No.7 in an affidavit dated 20th October,
2004 filed in Civil Application No.183 of 2004 in Family Court
Appeal No.72 of 1997 and Family Court Appeal No.87 of 1997
(Aishwarya Atul Pusalkar Vs. Atul Shivram Pusalkar & Anr.).
(e) In view of assignment of area by two co-owners, the
Respondent No.7 had to provide one flat admeasuring 379 sq. ft.
(carpet) to the Petitioner’s husband i.e. the Respondent No.8
herein. The Respondent No. 7 has accordingly allotted to the
Respondent No. 8 a flat bearing No. 101 admeasuring 379 sq. ft.
(carpet) on the 1st floor of the said building “Om Apartment”,
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constructed as per the plans lastly approved by the
M.C.G.M.(hereinafter referred to as “the said new flat”).
5. There is dispute as regards actual area of allocation to the
respondent no. 8 and his family by the respondent no. 7 in the new
building. The appellant contends such area to be 1816.61 sq. ft., out of
which her husband’s share would have been 605.53 sq. ft. in “Om
Apartment” during the period his mother was alive. The appellant,
appearing in-person, has also submitted that such area was comprised in
two flats in the sixth floor of the said building, being flat nos. 601 and
602. Her assertion as regards the area of the two flats is based on an
approved plan bearing no. EEBP/8145/GN/A of 15th October 2004. An
architect’s certificate to that effect forms part of Affidavit-in-Rejoinder
of the appellant filed in the writ petition before the Bombay High Court,
from which this appeal originates. That petition was registered as writ
petition No.1398 of 2008. The stand of the respondent no. 7, the builder,
however is that the plan dated 15th October 2004 was subsequently
amended on 17th February 2006 and 22nd November 2006 and “Om
Apartment” had not been constructed in accordance with the plan of
15th October 2004. Both the respondent nos. 7 and 8 have argued that in
the new building also, carpet area allocation was 1100 sq. ft. to the
branch of the family of respondent no. 8. Out of that area, the deceased
mother and sister of the respondent no. 8 had
assigned to the respondent
no. 7 for valuable consideration their respective shares coming to 733
sq.ft. According to the builder and the respondent no. 8, the latter has
been allotted a flat bearing no. 101 having 379 sq.ft. carpet area in the
same building. The respondent no. 8 wants the appellant to shift to that
flat and in this regard he has affirmed an affidavit on 29th August, 2019
forming part of records of this proceeding. In the verification portion of
this affidavit, the residential address of the respondent no. 8 is shown to
be “Matushree Pearl, Sitaram Keer Road, Mahim, Mumbai.” The
appellant at present appears to be residing at 20, Balgovindas Society,
Manorama Nagarkar Marg, Mumbai 400016. The Respondent no. 8
has pleaded that this residence was initially provided by the builder as
transit accommodation to her but at present he is paying rent for the
same. In the writ petition, out of which this appeal arises, she had asked
for direction upon MHADA authorities to rehouse her in the said two
flats. The other prayers in the writ petition included a mandatory direction
for compliance with the plan of 15th October 2004.
AISHWARYA  ATUL PUSALKAR v. MAHARASHTRA HOUSING &
AREA DEVELOPMENT AUTHORITY [ANIRUDDHA BOSE, J.]
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6. There have been certain parallel developments pertaining to
the appellant’s matrimonial dispute with her husband. In the Family Court,
the husband- respondent no. 8 had been granted a decree of judicial
separation in the year 1997. His plea for divorce was not accepted by
the Family Court. The decree of judicial separation was passed on 30th
July, 1997. Both the appellant and the respondent no.8 appealed against
the said judgment and decree before the Bombay High Court. The High
Court in a common judgment delivered on 2nd July, 2001 had allowed the
appellant’s appeal, registered as FCA No. 72 of 1997 and set aside the
decree of judicial separation. The appeal of her husband (registered as
FCA No. 87 of 1997) against the Family Court’s judgment refusing to
grant divorce was dismissed. This decision was delivered by the Bombay
High Court after she had shifted to her temporary accommodation. The
complaint of the appellant is that after the decree of judicial separation
was invalidated, her husband and his family have not allowed her to
reside in the flats allocated to them in the redeveloped building. She
claims in substance that such refusal is in breach of her right to reside in
her matrimonial home. It is also her case that as she had vacated the
original residential unit on the basis of a statutory notice, she has her
right to be rehoused in those flats as part of statutory rehabilitation
measure. The appellant
thereafter filed the writ petition in the Bombay
High Court. The present appeal has been resisted by the MHADA
Authorities, the builder (respondent no. 7), her husband (respondent no.8)
and the appellant’s sister-in-law, respondent no. 9. She was impleaded
in this appeal after the demise of original appellant’s mother-in-law. These
respondents had taken the same stand before the Bombay High Court.
7. The Bombay High Court in the judgment under appeal sustained
the plea of the respondents that the right which the writ petitioner
(appellant before us) was seeking to establish could not be enforced
invoking jurisdiction of the Court under Article 226 of the Constitution of
India.
It was, inter-alia, observed and held by the Bombay High Court:-
“6. 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
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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 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.”
8. Smt. Pusalkar has argued before us in-person that she was
removed from her matrimonial home through the statutory mechanism
contained in Section 95A of the 1976 Act, which bore the threats of
penal measure and summary eviction process. But this was during the
time the decree of judicial separation remained operative. She traces
the root of her ‘dishousing’ to a notice dated 10th July 2000 (bearing no.
MBR & RB/FN/GN/2136 of 2000) issued by the Board under the 1976
Act. Her case is that it is composite statutory obligation of
MHADA,
the builder and her husband to rehouse her in her matrimonial home. It is
a fact that the said respondents functioned under a statutory scheme
while redeveloping the property, commencing from approval of the
development scheme, vacating the old building and re-entry into the
allocated portion of the redeveloped premises by her husband’s family.
The appellant was also dishoused from the said building under that
scheme. But in our opinion, when a builder has discharged his obligation
by accommodating the original owners in the redeveloped portion as per
such a scheme, a lady married into that family would not be entitled to
invoke the writ jurisdiction of the High Court to enforce her right to
matrimonial home citing the provisions of the said statute, if her husband
does not permit her to reside in the allocated portion. She does not have
any independent claim on title or interest to that property having its genesis
in that statute. Her claim of right to reside in her matrimonial home is
sought to be projected by her as collateral to the statutory right of her
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husband to be rehoused or rehabilitated in the new building. But her right
to reside in her matrimonial home stands detached from and is independent
of the statutory scheme under the said Act. Neither MHADA, nor the
builder can have any further legal obligation to rehouse her. She is staking
her claim as a constructive beneficiary of the redevelopment scheme.
But our opinion is that the right she is seeking to enforce, though flows
from a set of events on the basis of which her husband can claim
rehabilitation, is actually anchored to an independent legal principle under
the Family Law. We accept that she was an occupier under Section 2
(25) of the 1976 Act, but such occupier status was dependent upon her
husband’s independent right as part owner of the property. Her right
flowing from her matrimonial status cannot get diffused with her right of
rehousing or rehabilitation under the statutory scheme. Her right to reside
in her matrimonial home does not flow from the 1976 Act.
9. We recognise the appellant’s right to reside in her matrimonial
home. Such right has a legitimate basis. Though in our view the
enforcement mechanism adopted by her to enforce her right is not legally
acceptable, a brief discussion on the right she is seeking to enforce is
necessary to understand the scope of her claim. A married woman is
entitled to live, subsequent to her marriage, with rest of her family
members on the husband’s side, in
case it is a joint-property. If she
resides in an accommodation as an independent family unit with her
husband and children, the matrimonial home would be that residential
unit. This right is embedded in her right as a wife. It is implicit under the
provisions of Section 18 of the Hindu Adoption and Maintenance Act,
1956 in situations that statute is applicable. The Protection of Women
from Domestic Violence Act, 2005 has recognised the concept of “shared
household” in terms of Section 2(s) of this statute. Alienating an immovable
asset to defeat the right of a victim lady under the said Act can constitute
domestic violence, coming, inter-alia, within the ambit of the expression
“economic abuse” under Section 3(iv) of 2005 Act. A Magistrate having
jurisdiction under Section 19 of the said Act is empowered to pass a
residence order to protect a victim of domestic violence from being
removed from her shared household. But for a husband to compel his
wife to live in a separate household, which is not her matrimonial home,
an order from appropriate legal forum would be necessary. There cannot
be forcible dishousing of a wife from her matrimonial home.
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10. The respondent no. 8 claims that the appellant could be
accommodated in Flat no. 101 of the same building. But the appellant’s
stand is that the said flat stands allocated to another tenant and she is
being offered that flat with malafide intention. She has staked her claim
on her right to residence in the matrimonial home, which according to
her is comprised in the said two flats bearing nos. 601 and 602. From the
materials available, it appears that interest in those flats have been
surrendered by the paternal family members of the respondent no.8.
11. There appears to be some matters pending in different fora in
relation to the matrimonial dispute between the appellant and the
respondent no.8. But we have not been apprised of particulars of such
matters. The position as it stands now is that the decree of judicial
separation stands invalidated and as of now, the appellant is the legally
wedded wife of the respondent no.8. She has been out of her matrimonial
home since the year 2000. But such right cannot be enforced invoking
the writ jurisdiction. Moreover, the original building that constituted her
matrimonial home has been demolished. Large portions of the
redeveloped building on the same plot has been parted with. Now going
by its traditional meaning, her matrimonial home at present would be the
premises in which her husband is residing. In this complex perspective,
a judicial forum having fact-finding jurisdiction would be the proper forum
for
adjudicating her claim of this nature. The appellant drew our attention
to Section 177 of the 1976 Act to contend that disputes arising out of the
said Act cannot be adjudicated upon by a Civil Court. But as we have
already observed, the dispute raised by her does not arise out of any of
the provisions of the 1976 Act. Though she was dishoused as an occupier
applying the provisions of the 1976 Act, claim of her rehousing is based
on her status as wife of the respondent no. 8. In our opinion, such claim
has to be adjudicated upon by the Civil Court or the Family Court or any
other forum the law may prescribe. Such right of the appellant cannot
be diffused with the right of her husband under the 1976 Act, whose
family property, part of which he is the owner, has been reconstructed.
12. Now the question arises as to whether any relief can be granted
to the appellant in this appeal. The Bombay High Court has in substance
non-suited her on the ground that the Writ Court was not the appropriate
forum for granting her relief. We do not per se find any error in such
approach. But, in course of this appeal, the husband (respondent no. 8)
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has filed an affidavit stating that he has set apart the Flat No. 101 in
which the appellant could be accommodated. The appellant on the other
hand has asserted that the allocation of the same flat was earmarked for
one Mr. Nayak Satam, a tenant, as per the plan.
13. Considering the fact that the dispute is pending for a very long
time, we shall be giving certain directions in exercise of our jurisdiction
under Article 142 of the Constitution of India which we hope will conclude
the dispute. We shall do so having regard to the fact that the builder and
the husband of the appellant have uniformly stated that Flat No. 101 in
Om Apartment is available to accommodate the appellant. For this reason,
in our opinion, the appellant should be given the choice of occupying that
flat as her residence. For this purpose, however, certain cautionary
measures are also necessary to ensure that the said flat is not otherwise
parted with or encumbered in any form:-
(a) The Respondent Nos. 1 and 2 shall disclose to the appellant
in writing as to whether the Flat no. 101 of “Om Apartment”
standing on Plot No.118, Dr. M.B. Raut Road, Shivaji Park,
Dadar having 379 sq.ft. carpet area is free for allocation to
the respondent no. 8 or not. This disclosure shall be made to
the appellant within a period of two months from the date of
communication of this order to the Respondent Nos. 1 and 2.
(b) Within one month from the date such disclosure
is
communicated to the appellant in writing, the appellant shall
take a decision as to whether she will accept the offer to be
accommodated in said flat no. 101. The appellant shall inform
the respondent no. 1, 2, 7 and 8 her decision in writing within
the aforesaid timeframe of one month.
(c) The husband, that is the respondent no. 8, shall also give an
undertaking in the form of an affidavit affirmed before a
Judicial Magistrate of First Class stating therein in clear terms
the nature of right he exercises over that flat along with copies
of documents to establish such right. That affidavit shall also
contain an unequivocal undertaking that he would not in any
way disturb possession of the appellant in the said flat. The
affidavit shall also disclose that the respondent no. 8 has not
created any form of encumbrance over the said flat. Such
affidavit shall be given within a period of one month from the
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date the appellant communicates in writing her willingness to
be accommodated in flat no. 101.
(d) If there is no bar in allocating the said flat to the appellant on
the basis of re-development plan or any other instrument
supplemental or ancillary thereto, and the appellant accepts
the offer of being accommodated in the said flat bearing no.101,
then the appellant shall vacate her present accommodation
and settle in that flat bearing no.101 in Om Apartment within
a further period of four months. This would be subject to the
respondent no.8 giving undertaking in the form of affidavit as
directed in the preceding sub-paragraph.
14. In the event, however, the appellant wants to establish her
right to reside in her matrimonial home with her husband, she shall be at
liberty to approach the Family Court or any other forum of competent
jurisdiction, as she may be advised. But in such a situation, she would
not be entitled to claim any right specifically in respect of Flat No.101 at
Om Apartment on the basis of directions issued by us in the preceding
paragraph including the four sub-paragraphs thereof.
15. The appellant shall vacate her existing accommodation for
which expenses appears to have been and continues to be incurred by
the Respondent No. 8. The fact of incurring such expense has been
pleaded in the additional affidavit filed on behalf of Respondent No. 8,
verified on 29th August 2019. We give appellant eight months’ time to
vacate her present
residence at A/20, Bal Govinddas Society, Manorama
Nagarkar Marg, Mahim Mumbai. In the event she chooses to opt for
Flat No. 101 in “Om Apartment” as her residence, and the other conditions
specified in paragraph 13 and its various sub-paragraphs are satisfied,
then she shall vacate her present premises from the date she takes
possession of the flat at “Om Apartment”. Respondent No.8 shall give
her possession of the said premises on a date mutually convenient to the
appellant and the Respondent No.8 within the aforesaid period of eight
months.
16. Otherwise, the course to be taken by her shall be guided by
the direction that may be given by a Court of competent jurisdiction,
which the appellant may approach. Till the time the appellant retains
possession of the present residential accommodation, which period shall
not exceed eight months, the respondent no.8 shall continue to pay rent
AISHWARYA  ATUL PUSALKAR v. MAHARASHTRA HOUSING &
AREA DEVELOPMENT AUTHORITY [ANIRUDDHA BOSE, J.]
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[2020] 6 S.C.R.
thereof and her possession thereof shall not be disturbed. The obligation
of the respondent no.8 to pay rent and ensure peaceful possession of the
present residential unit of the appellant shall not exceed the eight months
period, as stipulated by us. Unless of course, a Court of competent
jurisdiction issues any other direction at the instance of the appellant.
17. With these directions, the appeal shall stand disposed of. All
connected applications are disposed of. Interim orders, if any, shall stand
dissolved. There shall be no order as to costs.
Divya Pandey
Appeal disposed of.