Smt. Prabhawati Tokersi Chheda Vs. Maharashtra Housing and Area Development Authority, - Court Judgment

Excerpt:
tenancy - scheme - sections 77, 79 (2), 91 (5), 92, 93 and 94 (5) of maharashtra housing and area development act, 1976 and maharashtra ownership flats act, 1963 - petition filed by tenant for recovery of possession of premises in building which was demolished and reconstructed on ground that it was dilapidated - possession demanded on basis of agreement entered between petitioner and landlord under statutory scheme - scheme incorporated to rehouse and protect tenants of dilapidated building - as per scheme and agreement respondents liable to provide premises to petitioner in reconstructed building. - - 11) be declared to be illegal and bad in law. 1 to 3 torepair and reconstruct a building like bhandaribuilding since they had collected the repair cessfrom the tenants of this.....h.l. gokhale, j.1. this writ petition invoking article 226 ofthe constitution of india is filed by a tenant of aa building which became dilapidated and wastherefore demolished and reconstructed, but thetenant has not been provided with an accommodationin the reconstructed building, although thereconstruction was under a statutory scheme torehouse and protect the tenants of the dilapidatedbuildings. the petition seeks implementation ofthe agreement executed by the landlord of thebuilding with the petitioner-tenant under thestatutory scheme and also the implementation of asupplemental agreement in that behalf between thetwo. in this process, the petition raisesimportant questions of law and with respect to theimplementation of such welfare schemes and theirlikely misuse, and also with.....

Judgment:

H.L. Gokhale, J.

1. This Writ Petition invoking Article 226 ofthe Constitution of India is filed by a tenant of aa building which became dilapidated and wastherefore demolished and reconstructed, but thetenant has not been provided with an accommodationin the reconstructed building, although thereconstruction was under a statutory scheme torehouse and protect the tenants of the dilapidatedbuildings. The petition seeks implementation ofthe agreement executed by the landlord of thebuilding with the petitioner-tenant under thestatutory scheme and also the implementation of asupplemental agreement in that behalf between thetwo. In this process, the petition raisesimportant questions of law and with respect to theimplementation of such welfare schemes and theirlikely misuse, and also with respect to the actionsand inactions by public officers in-charge of suchstatutory schemes.

2. Respondent No.1 to the petition isMaharashtra Housing and Area Development Authority(shortly known as 'MHADA'), which is a statutoryAuthority constituted under the Maharashtra Housingand Area Development Act, 1976 ('MHAD Act' forshort). Respondent No.2 is the Regional Housingand Area Development Board for the Mumbai area,constituted under the MHAD Act and respondent No.3is the Building, Repair and Reconstruction Boardfor the Mumbai area also constituted under the sameMHAD Act. Out of these three public bodies, we aremore concerned with respondent No.3 in the presentmatter. Respondent No.4 is the MunicipalCorporation of Brihan-Mumbai. Respondent No.5 isthe landlord of the building and respondent Nos.6and 7 are the persons in whose favour an interesthas been allegedly created by respondent No.5 inthe same flat in the reconstructed building, towhich the petitioner is having a claim. Ms.UshaPurohit has appeared for the petitioner.Mr.DMello appeared for respondent Nos.1 to 3.Ms.Savla appeared for respondent No.4. Mr.Doctorand Ms.Sidhwa appeared for respondent No.5 andMr.Abhyankar for respondent Nos.6 and 7.

3. Frame of the Petition :

The petitioner herein was a tenant of roomNo.1 on the 3rd floor of a building known as'Bhandari Building' (sometimes also referred to as'Bhandari Building') situated at Survey No.1058, 7Khetwadi, 9th Lane, Girgaon, Mumbai. The buildingconsisted of Ground plus 3 floors with an attic onthe 4th floor. It was constructed long ago and by1978 it became dilapidated and dangerous foroccupation. It became necessary to demolish andreconstruct the same and hence a notice to vacatethe tenements was issued to the tenants (includingthe petitioner) by respondent No.2 under Section77(b) of the MHAD Act, first on 25th July 1978 andthen on 13th of July 1979. The said building wassubsequently demolished in 1979 and the tenantsincluding the petitioner were provided withtemporary accommodation in the transit camps.

4. It is the case of the petitioner that underthe provisions of the MHAD Act, it is open torespondent Nos.1 to 3 either to acquire suchproperty (under Sections 92 and 93 of the MHAD Act)and to reconstruct the building, or to hand overthe work of reconstruction to the MunicipalCorporation or to a Co-operative Society or 'to anyother agency' recognised by the Board under Section79(2)(a) of the MHAD Act. In the present case, thework was entrusted to respondent No.5 who is thelandlord of the building and the No ObjectionCertificate (NOC) for that work was issued underSection 91(5) of the MHAD Act on 1st October 1994.It is the case of the petitioner that she had theright to get the permanent alternativeaccommodation in the reconstructed building underSection 94(5) of the MHAD Act as it originallystood or even as amended by Maharashtra Act No.XVIof 1998. She submits that the respondents Nos.1 to3 and respondent No.5 as their agent were dutybound to provide such accommodation to her.

5. It is pointed out by the petitioner thatrespondent No.5 entered into an agreement with thepetitioner on 8th August 1994 to provide her a flatadmeasuring 256 sq.feet on the 5th floor being flatNo.10 in the proposed building. The flat was to begiven on ownership basis on payment ofproportionate construction cost. The agreementprovided that as soon as the building was ready foroccupation, the tenancy would stand surrendered andthe flat would become an ownership flat. It is herfurther case that subsequently another agreementwas entered into on 12th January 1995 between thepetitioner and respondent No.5. This agreementrecorded that the petitioner was desirous ofacquiring an additional space of 200 sq.feet overand above the area of the tenanted room andrespondent No.5 had agreed to provide a flat of 500sq.feet (built up area) in the new building, out ofwhich 300 sq.feet would be free of cost and 200sq.feet would be provided on actual constructioncost basis. The particulars of the flat were notmentioned in the agreement though in Clause-9thereof it was mentioned that it would be a flat on6th floor. The petitioner states that afterentering into this agreement, she paid a part ofthe consideration also, which was an amount ofRs.20,000/- towards the cost of construction.

6. The petitioner then states in para 16 ofthe petition that she was awaiting the allotment ofthe newly constructed tenement but there was noresponse from the respondents. She therefore madea representation dated 5th April 1999 to respondentNos.1 to 3 by pointing out that the building was atcompletion stage and her flat was occupied by someone else. Respondent No.2 wrote to respondent No.5by their letter dated 5th May 1999 calling upon himto rehabilitate the petitioner along with otherexisting tenants. That was of no effect. Thepetitioner again wrote to respondent Nos.2 and 3 byher letter dated 26th May 1999 pointing out thatthe developer was avoiding her. Respondent No.2,therefore, wrote to respondent No.4 not to grantoccupation certificate till further intimation wasreceived from his office. The petitioner did notget possession of the flat in spite of thiscorrespondence. She, therefore, filed thispetition on 21st June 1999. Initially, onlyrespondent Nos.1 to 5 were joined as respondents tothis petition. Subsequently by an amendmentrespondent Nos.6 and 7 were added therein.

7. Thereafter it is stated in the petitionthat earlier the petitioner was advised to file acivil suit and accordingly she had initially filedS.C.Suit No.812 of 1997 in the City Civil Court atMumbai. That Suit was filed against respondentNos.5 and 7 only. It was prayed in that suit thatrespondent No.5 be directed to hand over physicalpossession of a flat on the 6th floor by enteringinto proper registered document of sale and bycomplying with the provisions of the MaharashtraOwnership Flats Act, 1963. It was also prayedtherein that the agreement between respondent Nos.5and 7 about that flat on the 6th floor (being flatNo.11) be declared to be illegal and bad in law.Thus in essence the said suit was for specificperformance of the second agreement of 12th January1995 between the petitioner and respondent No.5 forthe flat on 6th floor. It is stated in Para-16 ofthe petition that the petitioner was ready andwilling to withdraw the said suit and she undertookto this Court to act accordingly. The suit waswithdrawn on 24th June 1999.

8. The main contention in this petition asstated in Para-18(i) of the petition is that underthe terms and conditions of the NOC dated1.10.1994, respondent No.5 had to accommodate allthe erstwhile tenants in the new building. It issubmitted in Para-18(ii) of the petition that itwas the obligation of respondent Nos.1 to 3 torepair and reconstruct a building like BhandariBuilding since they had collected the repair cessfrom the tenants of this building for this verypurpose. It is at the instance of these boardsthat the building was vacated and demolished sinceit had become dilapidated. Respondent No.5 wasacting only as an agent of respondent Nos.1 to 3and, therefore, it was the duty of respondent Nos.1to 3 and 5 to allot her a premises in thereconstructed building. Inasmuch as respondentNos.1 to 3 and 5 have neglected and failed indischarging this obligation that the necessarydirection was required.

9. The emphasis in the petition is on theobligations of respondent Nos.1 to 3 and 5 underthe statutory scheme. It is pointed out that asper the initial agreement of 8th August 1994, flatNo.10 on 5th floor was earmarked for thepetitioner. Subsequently under the agreement of12th January 1995, without mentioning a number, aflat of 500 sq.ft. was promised on the 6th floorand the petitioner paid Rs.20,000/- for thisadditional space as a part of the consideration.These agreements were not being acted upon and,therefore, prayer clause (a) sought to cancel theNOC dated 1.10.1994 and also the IOD (Intimation ofdisapproval containing the permission to construct)dated 25.1.1995 issued by respondent No.4. Inprayer clause (b) it was prayed that a flat of 456sq.ft. be allotted to the petitioner in the newlyconstructed building. It is stated in the petitionthat third party interests were already created inthe flats up to 7th floor. Therefore, prayerclause (c) sought a receiver with respect to a flatadmeasuring 456 sq.ft. on the 8th floor. Prayer(d) was to put the petitioner in possession of onesuch flat pending disposal of the petition. Prayer(e) was for an interim prayer to restrainrespondent No.5 from allotting one flat of 456sq.ft. to any body else. Thus essentially this isa petition to enforce the statutory obligations asincorporated in the agreement of 8th August 1994with respect to flat No.10 on 5th floor (asmodified by supplemental agreement dated12.1.1995.).

10. This petition was opposed by respondentNos.5, 6 and 7 by filing affidavits-in-reply.However, respondent Nos.1 to 4 have not opposed thereliefs in this petition. RespondentNo.4-Municipal Corporation in its affidavit hasplaced on record the necessary facts with respectto the reconstruction of the building and hassubmitted that the court may pass orders deemednecessary. As far as respondent Nos.1 to 3 areconcerned, they have also placed the facts as pertheir records before this Court and have clearlystated that respondent No.5 has failed andneglected to fulfill his obligations under theagreement with the petitioner as also thosecontained in various undertakings given torespondent Nos.1, 2 and 3. They have relied uponthe papers from their file, offered the inspectionthereof and made it available to the court for itsperusal.

11. The petitioner took out three Notices ofMotion in this matter from time to time. The firstone, i.e. Motion No. of 2000 (unnumbered), wastaken out on 21st July 2000 and the same is alreadydisposed of vide order dated 22.8.2000. The secondNotice of Motion No.39 of 2001 dated 13th February2001 and the third Notice of Motion No.262 of 2001dated 27th August 2001 were for receiver andinjunction concerning the concerned flat No.10 onthe 5th floor and for interim possession thereof.These two Motions are pending and they are beingheard and disposed of along with this petition. Asstated above, Suit No.812 of 1997 was filed priorto the filing of this writ petition. Therefore, wewill first refer to the contentions raised therein.Thereafter we will refer to the contents of thethree motions and replies thereto and then thereplies to the main petition since these replieswere filed last.

12. Suit No.812 of 1997 :

As pointed out earlier, Suit No.812 of 1997 wasfiled essentially for the specific performance ofthe agreement dated 12th January 1995 entered intobetween the petitioner and respondent No.5 withrespect to a flat on 6th floor. Respondent No.5was joined as defendant No.1 to this suit andrespondent No.7 was joined as defendant No.2 (sincein the meanwhile respondent No.7 had been inductedinto the flat on 6th floor). Respondent Nos.1 to 4to the present petition were not joined asdefendants in that suit. The entire emphasis ofthis suit was on the agreement between thepetitioner and respondent No.5 with respect to theflat on the 6th floor. It was stated in Para-5 ofthe Plaint that the plaintiff paid Rs.20,000/- asper this agreement towards the construction cost.The receipts dated 18th January 1996 and 23rd May1996 issued by respondent No.5 in respect of thepayments made to him in this behalf were enclosedwith the plaint. It was further stated in theplaint that the petitioner was ready and willing topay further amounts as agreed, but respondent No.5never made any demand for additional amounts inrespect thereof.

13. The petitioner took out a Notice of MotionNo.1544 of 1997 in that suit on 21st March 1997praying for Receiver and injunction againstdefendant No.1 (respondent No.5 herein) not to partwith or dispose off Flat No.11 on 6th floor andagainst the defendant No.2 (respondent No.7 herein)from entering, residing or occupying the said flat.The same was opposed by respondent No.7 by filinghis affidavit-in-reply which was filed on 24th July1997. In Para-7 of this reply, it was contendedthat the relationship between the petitioner andrespondent No.5 was that of tenant and landlordwhich was governed under section 28 of the BombayRent Act, 1947 and Section 41 of the PresidencySmall Causes Courts Act, 1882 and the Suit was notmaintainable in the Mumbai City Civil Court. Itwas submitted that the said issue be decided as apreliminary issue. In Paras 13 and 14 of thisreply, it was submitted that the tenanted premiseswere demolished in the year 1979 by the respondentNo.1 and the responsibility to provide alternativeor permanent accommodation was that of respondentNo.1 herein and not that of the landlord. Withrespect to the agreement of 12th January 1995 itwas pointed out that no flat number was mentionedany where in that agreement. In Para-17 of thereply, it was submitted that respondent No.7 hadhis right, title and interest in flat No.11 andflat No.12, both on the 6th floor in view of theagreements executed between respondent No.7 andrespondent No.5 on 14th August 1996 and 17th August1996 respectively. It was submitted thatrespondent No.7 had paid the cost of constructionand thereafter only respondent No.7 had been put inpossession and irreparable loss and damage would becaused to respondent No.7 if the prayers in theMotion and the Suit were granted.

14. As far as respondent No.5 is concerned, hetook nearly two years to file his reply. It wasfiled on 14th January 1999. In Para-13 of thisreply it was stated that the relationship betweenthe petitioner and respondent No.5 was that oftenant and landlord and the suit was notmaintainable in the Mumbai City Civil Court. InPara-12 it was stated that the petitioner had notcomplied with the provisions of the MaharashtraOwnership Flats Act, 1963. In Para-21 it wasstated that the petitioner was not staying in thetransit camp but was staying in an apartment inDadar (East). In Paras 22 to 24 it was denied thatthe petitioner was residing in room No.1 ofBhandari building till 1979 as alleged or that thebuilding was demolished in the year 1979. It wascontended that since respondent No.1 had given analternative (and allegedly permanent) accommodationin the transit camp there was no question ofrehabilitating the petitioner. Thereafter it wasstated 'I deny that the landlords are required toprovide accommodations to all the tenants of thebuilding in case the building is demolished orcollapsed.' In Para-25 he went to the extent ofsaying that he did not know the petitioner at all.

In Para-25 it was stated that in view of thethreats given by the husband of the petitioner thatthe earlier referred agreement had been enteredinto on 12th January 1995. It was statedthereafter that the petitioner and her husbandwanted money to surrender their tenancy rights andrespondent No.5 had pointed out that any suchtransaction was illegal and, therefore, was notpossible. They were insisting on being paidRs.50,000/-. It is only because of their threatsthat respondent No.5 succumbed to their coercion.It is then stated that the agreement was executedonly with a view to secure the sum ofRs.50,000/and, therefore, the flat and the date waskept blank. It is stated in this reply that inPara-9 of the agreement the words '6th floor' wereadded by the petitioner and was a fabricationknowing fully well that the agreement was not to beacted upon. It is thereafter stated that with aview to establish that the said agreement was validthat the respondent No.5 was given two Pay Ordersof Rs.10,000/- each and his signatures were takento acknowledge their receipt Then it was stated asfollows:-

'However she took away on each occasion asum of Rs.10,000/- in cash withoutexecuting any receipt in respect thereofunder threats given by her husband.'

It is material to note that though the agreement isof January 1995 the receipts are of January and May1996. No Police complaints were lodged in respectof this alleged coercion any time thereafter. Asstated above, and it is material to note that eventhis reply was filed nearly two years subsequent tothe taking out of this Motion and for the firsttime this plea of alleged coercion was raisedtherein. Thereafter it is stated in Para-27 ofthis reply that respondent No.7 has purchased thetwo flats being flat Nos.11 and 12 and, therefore,he was given the possession thereof and Bhansalishad every legal right to be in possession and todeal with and dispose of the same. In Para-35 ofthe reply, a question is raised with respect to theproper valuation of the suit.

15. As stated earlier, after filing of thepresent writ petition, this suit was withdrawn on24th June 1999. The order of the learned Judge ofthe City Civil Court on that date is as follows:-

' On the application of Mr.Jadhav, the suitis dismissed for want of prosecution. Noorder as to costs. Remove from the Board.In view of the withdrawal of the suit,Notice of Motion No.1544 of 1997 does notsurvive. The same is accordingly disposedof. '

16. Order to keep one tenement vacant:Although the present petition was filed on21st June 1999, it reached for consideration foradmission only on 22nd November 1999. The petitionhad been served on the respondents and the matterwas appearing on board from 27th September 1999.Yet none of the respondents had filed any replytill then. As stated earlier, at that time onlythe first five respondents herein were therespondents to this petition. A Division Benchconsisting of Ghodeswar and Radhakrishnan, JJ.heard the counsel for all the parties on that dateand passed the following order:

'1.Heard the counsel for thepetitioner and the respondents.

2. Rule. Respondents waive service.

3. By way of interim relief,respondent No.5 shall keep one tenementvacant for and on behalf of thepetitioner.'

17. Notice of motion (unnumbered) taken out inJuly 2000:

Although the order as mentioned above tokeep one tenement vacant was passed on 22ndNovember 1999, the respondent No.5 did notcommunicate to the petitioner as to which tenement/flat was kept vacant for her. On the other hand,the petitioner learnt that respondent No.5 waslikely to dispose of the flats in the reconstructedbuilding. The petitioner therefore took out anotice of motion on 21st July 2000 praying for aReceiver and for an injunction from inducting anyperson in the tenement which was supposed to beearmarked for her. The Motion reached beforebefore B.P.Singh, CJ (as he then was) andRadhakrishnan, J. on 22nd August 2000.

The following order was passed on that Motion:-

'Notice of Motion is disposed of with thedirection to the Respondents to put inwriting that one flat on the 8th floor ofthe building, which is to be constructed,shall be kept reserved for the Petitioner,in case she succeeds in the Writ Petition.'

18. Notice of Motion No.39 of 2001:

Inspite of the two orders as above, thepetitioner was not being put in possession of anyflat. The petitioner therefore took out Notice ofMotion No.39 of 2001 on 30th January 2001 andprayed for possession of Flat No.10 on the 5thfloor and also injunction restraining respondentNo.5 from parting with possession of this flat.She also sought appointment of Receiver for thisflat. The petitioner recorded in the supportingaffidavit that she had in the meanwhile received aletter that respondent No.5 had reserved a flat onthe 8th floor yet she was not sure as to whetherthat was really so. She therefore sought the orderas prayed mainly because the two orders passedearlier were not complied with. She was waitingfor the allotment of the tenement for the last 15years and she could not wait for indefinitely,particularly since her husband was stated to be aheart patient.

19. The respondent No.5 filed two replies tothis notice of motion. In the first reply filed on3rd May 2001, he reiterated the stand taken by himin reply to the notice of motion in the City CivilCourt Suit No.812 of 1997. It was stated in para 5of this reply that through this petitionessentially a specific performance had been sought,but it was not stated in the petition that thepetitioner was willing to carry out her part of theobligation. It was thereafter submitted in thisreply that the claim in the petition was on thebasis of a forged and fabricated agreement. It wasthen pointed out that the petitioner had filed SuitNo.812 of 1997 earlier for this very relief in theCity Civil Court. It was then pointed out that thepetitioner was not residing in the Transit Camp andthe alleged agreement between the petitioner andrespondent No.5 was incapable of enforcement andvoid ab-initio. Thereafter it was stated in para18 that the agreement of January 1995 had beenprepared essentially to secure the right of thepetitioner to receive payment of Rs.50,000/- andthat the agreement had been entered into due tothreat and force brought upon by the petitioner.The agreement was never meant to be acted upon. Itwas again repeated in this reply that althoughRs.20,000/- were received by the respondent No.5 bypay order the petitioner took back that amount incash without giving any acknowledgment. The words'6th floor' were subsequently added by petitionerin Clause-9 of that agreement. It was submittedthat the petitioner was never ready and willing tocarry out her part of the obligation under theagreement. It was denied that respondent No.5 hadany responsibility towards the petitioner. It wasspecifically stated in para 20 as follows:

'With reference to para 6 of the affidavit,I deny that one of the effective andsubstantive covenants of the agreementbetween the Respondent No.5 and the MHADAwas that unless the tenants/occupiers wereaccommodated, Respondent No.5 would not beat liberty to part with / sell any of theflats constructed.'

20. Thereafter for the first time in thesub-paragraphs of para 20 of this reply, it wasalleged that respondent No.5 had entered into anagreement on 17th August 1996 to sell 6 flats toone Peerchand Bhansali and that the possession offlats on 5th and 6th floors had been handed over toPeerchand Bhansali. It was then specificallystated as follows:

'I say that till then Respondent No.5constructed upto 7 floors and 8th floor isyet to be constructed.'

At this stage it is material to note that earlierin the reply to the notice of motion in Suit No.812of 1997, the respondent No.5 had taken a stand thatthe said Peerchand Bhansali and his family membershad full right over the flats that they hadpurchased. Now for the first time, it was allegedin para 20(i) of the reply that Bhansalis were putin possession of these flats only for renovationthereof, an amount of about Rs.15,00,000/- wasstill to be recovered from this Peerchand Bhansaliand that he had trespassed on to those flats andcontinued to stay there though the possessionthereof was given to Peerchand Bhansali only forrenovation of the flats. It was pointed out thatthe amount due from the said Bhansali was demandedway back in August 1996. The said Bhansali wascalled upon to return the possession of thoseflats. It is stated that Bhansali had carried outextensive structural repairs. Hence a complaintwas lodged to the police on 28th July 1999 at theV.P.Road Police Station. This Mr.Bhansali hadproceeded to construct a wall on the 7th floor andto put a door and lock. The respondent No.5 hadtherefore filed Suit No.825 of 1998 against him inthe City Civil Court and the suit was decreed on24th January 2001 in favour of respondent No.5.

21. It is thereafter stated in this reply thatin the meanwhile a notice to demolish thisstructure was issued by respondent No.4-MunicipalCorporation. The respondent No.5 therefore filedSuit No.5920 of 1999 against respondent No.4 in theCity Civil Court and an ad-interim order had beenpassed restraining the BMC from demolishing thestructure. In para 23 of this reply, it wasspecifically accepted that respondent No.5 hadgiven an undertaking to reserve one flat for thepetitioner in the newly constructed building. Inpara 24 it was stated that respondent No.5 hadaddressed a letter dated 17th January 2001 throughhis advocate to the petitioner that the flat on the8th floor will be reserved for her. To thisaffidavit in reply, the affidavit of respondentNo.5 filed in reply to Notice of Motion No.1544 of1997 in the City Civil Court Suit No.812 of 1997was annexed as an annexure. The affidavit ofPeerchand Bhansali filed in the said motion of CityCivil Court Suit was also annexed as an annexure.

22. Order to give particulars ofallottees/occupants :

Thereafter when this motion reached before theDivision Bench consisting of Gokhale & Bhosale, JJ.on 13th July 2001, the respondent No.5 was directedto file an affidavit giving the names of theallottees of the flats and their occupants and asto how they were lawfully occupying the premisesconcerned. The Municipal Corporation was alsoasked to file an affidavit with respect to the 8thfloor and the respondent No.5 was directed tomaintain status quo with respect to the flat on the5th floor being Flat No.503. The respondent No.5had made a statement that one Mr.Bansal (whichshould be Bhansali) was occupying that flat.

23.In pursuance to this direction, a furtheraffidavit was filed by respondent No.5 on 23rd July2001. The following chart was enclosed thereingiving the names of the occupants, the date ofagreement and the date of letter of possession.

-----------------------------------------------------------S.No. Flat No. Name of Occupant Date of Date ofAgreement letter ofpossession -----------------------------------------------------------1. 13 Samarthmal H. 5.3.99(Gr.Floor) Mehta 2. 01 Jayesh Peerchand Aug.96 17.8.96(1st Floor)Bhansali 3. 02 Mrs.Chandraben Aug.96 17.8.96(1st Floor)Peerchand Bhansali 4. 03 Prakashchand 17.9.98(2nd Floor) Punamiya 4a. 03 Ashaben Punamiya(2nd Floor) 5. 04 -----(2nd Floor) 6. 05 Rameshkumar J.(3rd Floor) Shah 7. 06 Jamatraj Shah 17.9.98(3rd Floor) 8. 07 Syatiben P. Mehta(4th Floor) 9. 08 Parasmal M. Mehta 17.9.96(4th Floor) 10. 09 Miss Meena P. Aug.96 23.8.96(5th Floor) Bhansali 11. 10 Peerchand Bhansali Aug.96 17.8.96(5th Floor) 12. 11 Peerchand M. Aug.96 17.8.96(6th Floor) Bhansali 13. 12 Kamlesh Bhansali(6th Floor) 14. 13 -----(7th Floor) 15. 14 Kirti Pachanbhai 31.8.98(7th Floor) Gada (Articles of Agreement)---------------------------------------------------------

The respondent No.5 also produced along with thisaffidavit a plan allegedly sanctioned by the BMCpermitting the construction of 8 floors. Letterdated 13th October 1998 of the MunicipalCorporation was also annexed.

24. Notice of Motion No.262 of 2001In the above referred reply filed by respondentNo.5 to Notice of Motion No.39 of 2001 on 23rdJuly 2001, it was disclosed that flat No.10 on 5thfloor was allotted to Peerchand Bhansali and flatNo.9 on 5th floor to Meena Bhansali. Flat No.11on 6th floor was also stated to be allotted toPeerchand Bhansali. Therefore, the petitionertook out Notice of Motion No.262 of 2001 in thisWrit Petition on 27th August 2001 joining MeenaBhansali and Peerchand Bhansali as respondentNos.6 and 7 to that Motion. This Motion alsoprayed for Receiver for flat Nos.10 and 11 on the5th and 6th floor in possession of respondentNos.7 and 6 and to be put in possession of eitherof the two flats or any other flat occupied by amember of the Bhansali family in the saidbuilding. In the supporting affidavit, thepetitioner pointed out that inspite of variousorders of the Court beginning with the first orderof 22nd November 1999 to keep one tenement vacant,some others had been put in possession of thereconstructed flats. In Para-16 of the supportingaffidavit it was emphasized that as per the abovereply in Motion No.39 of 2001 some six flats outof 12 in the reconstructed building were occupiedby one Bhansali family and this alleged possessionwas itself suspicious. It was submitted that theagreement which the petitioner had entered intowith respondent No.5 was prior in point of time,apart from the fact that the petitioner washolding a preemptory right to occupy and possessthe flat for the reason of being the originallawful tenant and also on account of statutoryobligations of respondent Nos.1 to 3 and 5.

25. A reply was filed on behalf of respondentNo.5 to this Motion on 31st August 2001. In thisreply, the statements made in the earlieraffidavits have been repeated. In additionthereto, it was stated in Para-22 thereof that thepetitioner was making an illegal demand of Rs.25Lacs. It was further stated in Para-28 that theflat to be constructed on the 8th floor will bekept reserved for the petitioner in case shesucceeds in the petition. In Paras 28 and 28(1)it was stated that respondent No.5 had enteredinto six agreements with Bhansali family members,however, he had received only the earnest moneyand balance of the construction cost ofapproximately Rs.15 Lacs was yet to be received.The flats were given to them only for renovationand to make furniture but respondent No.7encroached illegally and trespassed on the sixflats in or about August 1996. It was furtherstated in Para-28(3) and 28(4) that respondentNo.7 carried out structural alterations and hencethe complaints were lodged to the V.P. RoadPolice Station on 28th of July 1999 and also torespondent No.4.

26. One more affidavit was filed on behalf ofrespondent No.5 on 12th September 2001 wherein itwas stated that now it was learnt that thebuilding had been auctioned sometimes at the endof July 2001 by respondent No.4 for recovering theoutstanding dues and the building was purchased byrespondent No.7.

27. Respondent No.7 filed his reply to thismotion on 19th September 2001. In Para-4 of thisreply it was stated that the earlier Suit No.812of 1997 filed by the petitioner having beenwithdrawn, that withdrawal will operate asresjudicata. In Para-13 it was stated that theaccommodation which was available to the Bhansalifamily earlier was inadequate, and therefore hehad purchased six flats to accommodate his entirefamily in one building. In this Para it wasstated as follows:-

'Respondent No.5 intimated me that thereare six persons who have surrenderedtheir tenancy rights to him and agreed togive the tenancy in respect of the saidrooms and then entered into the agreementfor the alternative agreement.'

It is further stated that respondent No.5 hadassured that he will accommodate them in place ofthese tenants and will get necessary correctionsdone in the tenants list which was with MHADA andthe Bhansalis believed respondent No.5. On suchrepresentation being made, respondent No.7 is saidto have paid large amounts in cash to respondentNo.5. Respondent No.5 first admitted them astenants and thereafter when the building wasalmost ready for occupation, executed sixagreements for sale to six persons of his family.Respondent No.7 has annexed his own chart forthese six flats to this affidavit which is asfollows:-

Sr.No. Name New Flat No.Area Agreement Old Room/Date Floor No. 1. MR.JAYESH P. Flat No.1 BHANSALI 1st floor 392.7 14th Aug. 02sq.ft. 1996 1st floor2. MRS.C.P. Flat No.2 425 14th Aug. 01BHANSALI 1st floor sq.ft. 1996 1st floor3. MISS MEENA Flat No.9 392.7 23rd Aug. 04P. BHANSALI 5th floor sq.ft. 1996 1st floor4. MR.KAMLESH Flat No.10 425 14th Aug. 03P. BHANSALI 5th floor sq.ft. 1996 1st floor 5. MR.P.M. Flat No.11 392.7 14th Aug 02BHANSALI 6th floor sq.ft. 1996 2nd floor6. P.M.BHANSALI Flat No.12 425 17th Aug. 01 6th floor sq.ft. 1996 2nd floor

28. In Para-8 of the reply, it is stated thatthere are disputed questions of facts and the suitwas the proper remedy. In Para-10 it is statedthat flat Nos.9, 10, 11 and 12 on 5th and 6thfloors are internally connected and modificationin the plan to that extent had been made byrespondent No.4 and respondent No.5 at theinstance of Bhansalis. In Para-11 it is statedthat all the six flats had been mortgaged on28.3.2001 to Union Bank of India. In para 17 itis alleged that respondent No.5 has duped manypersons and only when he learnt it that he got hisagreements registered. In Para-19 a reference ismade to another suit in the City Civil Courtbearing No.825 of 1998 filed by respondent No.5against respondent No.7 wherein it was allegedthat respondent No.7 had encroached on the 7thfloor. Respondent No.5 has stated that he hadnothing to do with the 7th floor and therefore hedid not contest the said suit. In short, hissubmission is that he is the bona fide purchaserof the six flats on 1st, 5th and 6th floors, andhis possession should be left undisturbed.

29. After these replies were filed byrespondent Nos.5 and 7, the Motion was heard on19th September 2001. It was noted that theproperty had been auctioned in the meanwhile forMunicipal dues and one Meena Metal Impex Pvt.Ltd.was the successful bidder in which companyrespondent No.7 had the dominant interest. Inview of this changed scenario it was observed thatone did not know as to what will be the state ofaffairs hereafter. Therefore, it was thoughtnecessary that the property ought to be protected.This Court, therefore, appointed the Receiver,High Court, Bombay as the Receiver for flat No.10on the 5th floor by the order dated 19th September2001, though the receiver was directed not to takethe possession for the time being.

30. A further comprehensive affidavit wasfiled on behalf of the petitioner thereafter,affirmed by her son Jayesh Chheda who is herconstituted attorney. In Para-2 of this affidavitit is stated that after the Bhandari building wasdemolished, as a part of the procedure forconstruction a list of lawful tenants was preparedand in that, the petitioner was declared to be thelawful tenant of room No.1. In Para-6 it isstated that for the petitioner there was no way oflearning about the developments on the site of thedemolished building. The petitioner came to knowabout the reconstruction only when respondent No.5approached her with an agreement in respect ofallotment of a flat in the building to be newlyconstructed. It is submitted that only on thebasis of such agreements with the tenants that therespondent No.5 obtained the N.O.C. dated1.10.1994 from respondent No.5 and then the I.O.D.from respondent No.4. Thereafter it is statedthat the petitioner negotiated with respondentNo.5 for additional area of 200 sq.ft. andentered into an agreement dated 12.1.1995 and paidpart consideration of Rs.20,000/-. Thereafterrespondent No.5 reconstructed the new building upto 7th floor, but the petitioner was neither putin possession of flat No.10 on the 5th floor asinitially agreed nor any other flat on the 6thfloor or otherwise in the building. Then there isa reference to filing and withdrawal of the suitand then filing of the writ petition and orderspassed from time to time and taking of MotionNo.39 of 2001. In Para-25 of this affidavit,there is a clear allegation of collusion betweenrespondent Nos.5 and 7. It is alleged that theflats appear to have been sold to the Bhansalifamily for consideration or in lieu of thepartnership share in reconstruction of thebuilding. In Para-27 it is submitted thatalthough now it is revealed that the flats on 5thand 6th floor are internally connected, respondentNo.4 has not bothered to take any action toprevent it.

31. Thereafter, one more affidavit was filedby respondent No.7 on 28.9.2001 wherein theaffidavit of Shri Jayesh Chheda has been dealtwith. The allegation of collusion is denied. Itis accepted in this affidavit that the propertyhas been purchased in auction by M/s.Meena MetalImpex Pvt.Ltd.

32. A rejoinder was filed on 28th September2001 on behalf of respondent No.5 mainly to theaffidavit affirmed by respondent No.7 on 19thSeptember 2001. In this rejoinder it is deniedthat respondent No.5 has duped any person. InPara-11 of this rejoinder it is specificallydenied that the agreements with respondent No.6and respondent No.7 were registered. It issubmitted that if at all they are registered, thathas been done fraudulently and without theknowledge and permission of respondent No.5. Itis however material to note that there is nodenial of the statement in the affidavit ofrespondent No.7 that on receipt of huge cash, sixtenancies were created in favour of Bhansalis inplace of earlier tenants who had allegedlysurrendered their tenancies and later on flatswere allotted for them in lieu of these tenancies.Thereafter the affidavit of Jayesh Chheda is dealtwith. The allegation of collusion betweenrespondent No.5 and respondent No.7 is denied byrespondent No.5 also.

33. Respondent No.7 then filed one moreaffidavit on 6th October 2001 wherein he deniedthat the construction cost of Rs.15 Lacs is yet tobe recovered by respondent No.5 or that his familyhas encroached and trespassed on to the flats inpossession of his family.

34. Suit No.825 of 1998 in the City CivilCourt, Bombay :

In the above-referred replies, there is areference to this earlier suit filed by respondentNo.5 against respondent No.7. This was filed on17th February 1998 regarding the allegedencroachment by respondent No.7 on the 7th floor.The main prayer in this plaint was to restrainrespondent No.7 from coming upon or trying to putup or complete the incomplete construction on the7th floor of this building. Respondent No.7 isthe only defendant to this suit and there is noreference whatsoever in the entire plaint that thebuilding was ever demolished and reconstructedwith the permission of the Housing Board. InPara-10 of this plaint there is an averment to thefollowing effect:-

' Plaintiff says that the flat on the 7thfloor has been let out by the Plaintiffto one D. Gadda, to whom the Plaintiffhas agreed to allot the said flat onrental basis. Plaintiff says that he hasgiven the said Gadda word and assurancethat the said flat was to be completedand allotted to him and none elsewhatsoever and he shall be put inpossession after occupation certificatewas obtained. '

A Commissioner was appointed in this matter andthe Commissioner made his report to the City CivilCourt. The report dated 21st February 1998recorded that some construction appeared to begoing on the 7th floor but the constructionappeared to be incomplete. The Commissioner hadtaken the photographs which clearly show that somework was going on the 7th floor which was totallyincomplete. It is interesting to note that inthis report it is stated that at the entrance ofthe building there were two Watchmen, one wasworking for respondent No.5 and another forrespondent No.7. An injunction was granted inthis matter directing the maintenance of statusquo. It appears that respondent No.7 did notcontest the matter. He did not even file thereply and there was an ex-parte decree passed on24th January 2001 in terms of prayer clause (a) ofthe suit i.e. injunction against respondent No.7from coming upon or trying to put or complete theincomplete construction. It is material to notethat right from the time the Commissioner made thereport i.e. on 21st February 1998, the order ofstatus quo was running whereunder both the partieswere directed to maintain status quo as per thereport of the Court Commissioner. Thus, it isvery clear that on 18th February 1998 theconstruction on the 7th floor was incomplete andthe parties were directed to maintain status quo.The status quo was recorded in Commissionersreport on 21st February 1998 and the injunctionwas running until the decree was passed on 24thJanuary 2001.

35. Replies to the main Petition :As far as the main petition is concerned, replieshave been filed by all the respondents. They areas follows:-

(i)Reply by Municipal Corporation:

One Shri S.L.Jadhav, Assistant Engineerof respondent No.4, E Ward office, BuildingProposal Department, has filed a reply affirmed on27th July 2001 to this petition. It is stated inthis reply that respondent No.4 has approved theplans for the building only for ground plus sixfloors plus seven (part). It is further statedthat stop work notice had been under Section 354-Aof the BMC Act on 29th June 1999 when it wasobserved that construction of 7th floor beyondapproved plans was in progress. In Para-4 of thisreply it is stated that only part occupation (forpart stilt plus part ground floor to 3rd floor)has been granted and action under Section 353-A ofthe B.M.C. Act is initiated for the unauthoriseduse and occupation from 4th to 6th floor. InPara-5 of this reply it is stated that afterissuing the stop work notice, the respondent No.4called upon the Architect of respondent No.5 toproduce original copy of the approved plan, ifany, for ground plus 8 floors as claimed by him.Respondent No.5 however by his letter dated 26thAugust 1999 refused to submit the approved planson the ground that if the said plan is produced,attempt will be made either to destroy it or tovary or modify it.

(ii)Respondent No.5 has filed an affidavitdated 17th August 2001 in reply to this affidavitof Assistant Engineer (though it is wrongly titledas an affidavit in Notice of Motion No.39 of2001). In this affidavit, it was stated thatrespondent No.5 was required to file a suit in theCity Civil Court against the Municipal Corporationbeing Suit No.5920 of 1999 restraining them fromdemolishing the construction on the 7th floor. Inthis affidavit, it was also stated that theMunicipal Corporation had called upon respondentNo.5 to produce the original approved plans forthe ground plus 8 floors and then it was stated asfollows:

'I say that the Respondent No.5 hasrightly by letter dated 26th August 1999refused to submit the approved plans onthe ground that attempt will be madeeither to destroy the same or tovary/modify the same.'

It was denied that the approved plan was only forground plus 6 floors and part of the 7th floor.

(iii)City Civil Court Suit No.5920 of 1999 :This suit was filed by respondent No.5against the Brihan-Mumbai Municipal Corporation on27th September 1999. This was in view of thealleged threat given by respondent No.4-MunicipalCorporation for demolition of the work on the 7thfloor and the notice under Section 354-A of theB.M.C. Act issued on 29th June 1999 in thatbehalf. Prayer in this suit is that the act ofthreat by the defendants for demolition of 7thfloor be declared as illegal. In this suit, aNotice of Motion was taken out and an order ofinjunction has been passed on 1st October 1999granting ad-interim injunction in terms of prayerclause (a) of the Motion i.e. to restrain therespondents from demolishing 7th floor and aboveor any part of the building, otherwise byfollowing due process of law. The order directedthe plaintiff (respondent No.5) to give a writtenundertaking that he will not deal with, disposeof, alienate, encumber or part with possession ofthe suit premises in any manner whatsoever andwill not carry out any construction, additions,alternations of any nature whatsoever includingrepairs of any nature to the suit premises. Thatundertaking had been given by respondent No.7 tothat Court on 28th September 1999. That suit isstill pending and the injunction and undertakingare in operation.

36. Reply by respondent Nos.1 to 3 :

A reply dated 27th September 2001 has been filedby one N.P.Raval, Deputy Engineer, D-2 Division ofrespondent No.3 to the main petition. In Para-2of this reply, it is specifically accepted thatrespondent No.5 had entered into an agreement withthe petitioner on 8th August 1994 to allot flatNo.10 admeasuring 256 sq.ft. on the 5th floor ofthe proposed new building. Indemnity dated 8thAugust 1994 was given by respondent No.5 in thatbehalf indemnifying and absolving respondent Nos.1to 3 of their responsibility under Chapter VIII ofthe MHADA Act. He filed another affidavit dated8th August 1999 declaring that the property willbe developed as per the plans submitted to BMC andthat he will not approach BMC (respondent No.4)either for part or completion certificate unlessarrangements are made to accommodate all theoccupants of the existing old building in theproposed new building to be constructed. He gavea third undertaking also on 8th August 1994 thathe will fulfill all the terms and conditions asset out in the letter of intent issued byrespondent Nos.1 to 3. Thereafter it is statedthat respondent No.5 has failed and neglected tofulfill his obligations under the agreemententered into with the petitioner as also variousundertakings given to respondent Nos.1 to 3. Thenin Para 7 there is a reference in this affidavitto an inquiry from the Senior Police Inspector,V.P.Road Police Station on the complaints by theoccupants and the reply by the Chief Officer (ofrespondent No.3) dated 14.12.1999 (it should be4.12.1997). It is also stated that the concernedEngineer of respondent No.4 was being intimatednot to grant occupation certificate. Lastly, itis stated in the affidavit that the request ofrespondent No.5 to reserve one flat for thepetitioner on the 8th floor could not be reliedupon.

37. Affidavit of respondent No.5 to the mainpetition :

A detailed affidavit in reply has been filed byrespondent No.5 affirmed on 18th October 2001. Hehas reiterated all that has been stated in theearlier affidavits in reply to the Motions. It isagain alleged that the petitioner is trying topressurise respondent No.5 and she is asking formoney to surrender her tenancy, that Rs.20,000/hasbeen paid and taken back without receipt and thatthe words '6th floor' have been added on page 8 ofthe agreement dated 12th January 1995. It isfurther stated that although six agreements wereentered into with respondent No.7, he hasillegally encroached and trespassed and that Rs.15Lacs are still due from him. Then there is areference to the above-referred Suit No.825 of1998 and Suit No.5920 of 1999. Thereafter it issubmitted that in view of the building having beenauctioned it is now the responsibility ofrespondent No.7 to provide an accommodation to thepetitioner. Thereafter it is stated that thepetitioner has another apartment in Dadar. Lastlyit is pointed out that petitioner filed oneearlier Suit bearing No.812 of 1997 and since thesame is withdrawn, this petition, which is alsofor specific performance, is not maintainable andought to be dismissed.

38. Reply of respondent No.7 :

(i)Respondent No.7 has filed a reply to themain petition affirmed on 18th October 2001 andhas reiterated what is stated in reply todifferent Motions. He has also submitted that thepetition is barred by res judicata, that there aredisputed questions of facts, and that respondentNo.7 and his family members are bona fidepurchasers. It is further stated that flat No.10on the 5th floor is allotted to his son Kamlesh inlieu of room No.3 on the 1st floor. It iscontended that respondent No.5 has duped manypeople including respondent No.7. Finally,therefore, it is submitted that the petition oughtto be dismissed.

(ii)One more affidavit has been filed byrespondent No.7 affirmed on 9th November 2001pointing out that the respondent No.5 has handedover a flat on the 7th floor to one Mr.KirtiPachanbhai Gada. He has relied upon theagreement with Mr.Gada dated 31st August 1998 andDeed of Confirmation dated 14th June 2001. It issubmitted that thus respondent No.5 is continuingin his behaviour of cheating the bona fidepurchasers and is flouting various orders passedfrom time to time.

39. Documents from the record of the HousingBoard:

In the affidavit in reply filed on behalfof respondents Nos.1 to 3, there was a referenceto the Indemnity Bonds and the affidavits executedby respondent No.5 to respondents Nos.1 to 3 fromtime to time. There was a reference particularlyto three such affidavits made on 8th August 1994.In para 6 of the reply, there was a reference tothese undertakings and an averment was made thatrespondent No.5 had failed and neglected tofulfill those obligations under these agreementsand various undertakings. In para 7 of the reply,there was a reference to the letter of the ChiefOfficer of the Board to the Senior PoliceInspector dated 4th December 1999 (which should be4 December 1997). The learned counsel appearingfor respondents Nos.1 to 3 had relied upon theseand other connected documents. We called upon thelearned counsel therefore to make available theconcerned file for the inspection of the rivalcounsel. Thereafter the file was looked into bythe court.

40. To begin with, in this file there is areference to the letter of intent issued byrespondent No.2 dated 19th November 1992 on theapplication of the architect of Smt.Kalavati Desaifrom whom respondent No.5 claims to have purchasedthis property subsequently. He claims to havepurchased it through a registered conveyance dated6th June 1994 as stated in para 25 of his reply tothe motion filed in the City Civil Suit No.812 of1997 (and a copy of which is enclosed with thereply to Notice of Motion No.39 of 2001). He hasreiterated it in para 16 of his reply dated 31stAugust 2001 to Notice of Motion No.262 of 2001.In clause 1 of the recitals of this agreement,there is a reference to the tenants in theproperty. Those particulars are given in aschedule attached thereto. The schedule containsthe list of tenants and the name of the petitionerfigures therein as occupying a tenement on 3rdfloor. In this file, there is a letter dated 29thAugust 1994 which records that the building wastaken up for consideration on priority basis in1976 and estimates were also prepared, but theestimated expenditure was excessive and the workcould not be executed through the board.Initially the tenants had applied for NOC and theNOC was given, but the work could not be executed.Thereafter the building had been demolished andthe occupants were shifted to the transit camp.

41. After the property was taken over byrespondent No.5 as stated above, their architectsR.N.Parekh & Co. (consisting of R.M.Parekh andKamlesh Kothari) wrote to the Chief Officer ofrespondent No.2 by their letter dated 6thSeptember 1994. The letter gives at the top of ita reference to the Housing Boards letterNo.R-NOC/F/553/13686 dated 19th November 1992(addressed to Kalavati Desai as referred toearlier). It accepts the 16 conditions in theletter dated 19th November 1992. The conditionsrelevant for our consideration from the letterdated 19th November 1992 are the following:-

'1) The Developer/Owner/Chief Promoter ofthe proposed Co-operative Housing Societywill have to form such Co-op. Hsg.Society along with minimum 70 per cent ofold occupiers of the existing building,eventually, (before occupation of thereconstructed building).

2) All occupiers of the old cessedbuilding shall be rehoused in the newlyreconstructed building. A suitableownership basis agreement within themeaning of Bombay Rents, Hotel andLodging House Rent Control Act, 1947 ismade in this respect and submitted to theBoard duly executed.

3) Every occupier shall be provided withbuilt up area equivalent to what he wasoccupying in the old cessed building. The minimum carpet area to be allottedshall however be restricted to theminimum i.e. prescribed by D.C. rulesof Bombay Municipal Corporation. Themaximum built-up-area to be allotted toany occupier will be 70 sq.mtr. asprescribed.

4) You will have to submit a list ofresidential and non residential occupiersin the old building showing against eachthe built up area occupied by him. Theplan of old building showing location ofvarious rooms and names of theiroccupants will also have to be submittedduly certified by the Executive Engineerof the concerned Ward of B.H. & A.D.Board. Also you will have to submit aplan of proposed building showing thearea and location of each tenementproposed to be allotted to respectiveoccupiers for approval prior tosubmitting the same to the B.M.C. fortheir approval.

5)(a) The tenements in the constructedbuilding shall have to be allotted by theproposed Co-operative Hsg. Society/Developer/Owner as per the list certifiedby the Board. Prescribed percentage ofthe surplus areas provided in the 3rdSchedule of the M.H. & A.D. Act, 1976shall be worked out and tenements shallbe made available to the Board at cost ofRs.235/- sq.ft. or as decided by theGovt. from time to time to be utilisedfor accommodating the occupants of thosecessed buildings which cannot bereconstructed before occupationcertificate is obtained from BombayMunicipal Corporation. For such surplusarea to be handed over to the B.H. &A.D.; B., the planning shall bepreferably done with built up area ofeach tenement ranging from 250 sq.ft. to300 sq.ft. (Minimum carpet area of eachtenement should be 180.00 sq.ft. Anundertaking to this effect shall be givento the Board.

(b) .....

(c) It shall not be permissible to forcethe non members occupiers in the oldbuilding to purchase the newlyconstructed tenements if non member/occupier insisted for tenements on rentalbasis, same shall be given to him onstandard rent. This issue must bedecided by mutual agreement, betweenproposed Co-operative Housing Society ofoccupier/Developer/Owner and theoccupiers.

6) .....

7) During the period of reconstruction,the responsibility of providing transitcamp accommodation shall lie with theowner/Developer/Co-op. Hsg. Society.

8) .....

9) .....

10) Suit if any, filed in any Court orany litigation in process at present inany Court will have to be withdrawn bythe proposed Co-op. Society/Developer/Owner before N.O.C. is granted.An indemnity bond absolving the Boardfrom the effect of legal proceedingsshall be furnished by the owner/developerproposed Co-op. Society.

11) The beneficiaries of the proposedSociety/developer owner should absolvethe Board of its responsibility providedin the M.H. & A.D. Act, 1976 to theextent covered under Chapter VIII of theM.H. & A.D.A, 1976 by an indemnity bondand if promoter of proposed society/developer/owner/transfers the property tothird person, then during pendency of theapplication for N.O.C., those conditionsshall apply Mutatis mutandis to thirdtransferer.

12) An affidavit from the proposedsociety/developer owner agreeing thathe/it will not approach the B.M.C. forissue of part or full completioncertificate and occupation certificateunless the proposed society/developer/owner has made arrangements toaccommodate all the occupiers in theerstwhile cessed buildings, shall besubmitted alongwith the compliance.

13) .....

14) .....

15) .....

16) ..... '

42. The acceptance letter of the architectsof respondent No.5 dated 6th September 1994 afterreferring to the above letter dated 19th November1992 stated as follows with respect to therelevant clauses.

'Ar.R.M.Parekh R.M.Parekh & Co.

Kamlesh Kothari

Dt. 6.9.94

To

Vice Chairman/Chief Officer,

B.B.R. & R. Board,

Griha Nirmal Bhuvan,

Bandra (East),

Bombay.

Dear Sir,

Sub : Redevelopment of propertybearing c.s.no.1058 of GirgaumDivn. Cess No.D-2000/7,Khetwadi, 9th Lane, in D Ward,Mumbai.

Ref : Your letter vide No.R-NOC/F/553/13686 dated 19.11.92.

With reference to the above and on behalfof our client, we have to state as under:

1. Owner will form Co.op. Hsg. Soc. with70 percent of old occupiers of theexisting bldg.

2. All occupiers of the existing bldg.shall be rehoused in the newlyconstructed bldg. The copies ofAgreement between tenants & owners areenclosed herewith.

3. Every occupier shall be provided withbuilt up area equivalent to what theywere occupying in existing bldg.

4. The list of tenants with their nature ofoccupation, area occupied by themalongwith plan certified by the ExecutiveEngineer D2 Ward is enclosed herewith.

5(a) Noted. Since built up area of theexisting bldg. (which is pulled down byauthority) is more than 2.00 F.S.I. andall existing tenants will be rehoused.

There is only one room surplus.

(b) .....

(c) Noted and will be complied accordingly.

6. .....

7. Noted and will be complied accordingly.

8. .....

9. .....

10. Noted and not applicable. The indemnitybond is enclosed herewith.

11. The indemnity bond is enclosed herewith.

12. An affidavit is enclosed herewith.

13. .....

14. .....

15. .....

16. .....

Hope you will find the same in order foryour issuing the N.O.C. at your earliest.

Yours faithfully

FOR R.M. PAREKH & COMPANY

sd/-

(R.M. PAREKH)

ARCHITECT

Encl: as above.

C.C. Shri Bankim Dalal

1-Utkarsh, 1st floor,

Sikka Nagar, V.P. Road,

Bombay 400 004.'

A list of the tenants was enclosed with thisletter giving therewith the area of each tenementand monthly rent. The name of the petitionerfigures therein as the one occupying Room No.1 onthe 3rd floor. The list is as follows:-

-----------------------------------------------------------------------S.No. As per record of Floor Room Area MonthlyBBR & R Board No. Rent-----------------------------------------------------------------------1. Govind Laxman Gr.Fl. 1,2&3 74 sq.m. Not knownMirgal2. Ramkrishna Sitaram 1st Fl. 1 26 sq.m. Rs.88.32Latke3. Mahadev H. Latke 1st Fl. 2 21 sq.m. Not known4. Krishna Panaji Nanavare 1st Fl. 3 20 sq.m. Not known5. Kantilal Mohanlal Shah 1st Fl. 4 14 sq.m. Not known6. Lalji Devji Gala 2nd Fl. 1 26 sq.m. Rs.31.557. Vrijlal Parmar 2nd Fl. 2 21 sq.m. Rs.27.008. Chandrakant Ghandi 2nd Fl. 3 & 4 30 sq.m. Rs.31.559. Smt.Savita S. Barot 3rd Fl. 3 & 4 19 sq.m. Rs.39.7110. Vithalbhai Parmar 3rd Fl. 2 20 sq.m. Rs.31.5511. Smt.Prabhavati Chheda 3rd Fl. 1 28 sq.m. Rs.36.5012. Smt.Savita S. Barot 4th Fl. Kataria 20 sq.m. Rs.21.55

43. Thereafter amongst the other documents, theagreements entered with the tenants are enclosedwhich include the agreement dated 8th August 1994annexed to the petition as Exhibit-E. This agreementspecifically states in clause (1) that inconsideration of the tenant agreeing to surrendertheir tenancy rights, the landlord agrees to handover on ownership basis a flat of approximately 256sq.ft. on 5th floor of Flat No.10 of the proposedbuilding to be constructed on the said plot of landin the proposed scheme of development on the saidplot of land. Clause 2 states that the tenant onallotment of the said flat would become a member ofthe proposed co-operative society. Clause 3 statesthat the tenants are ready to pay the proportionateconstruction cost of the said building developed bythe landlord. Clause 4 provides that the saidsurrender of tenancy rights would be effective on thedate this agreement is signed and the landlord agreesto hand over possession of the said flat to thetenant as soon as the said building is ready foroccupation.

44. Then the three documents ofindemnity/affidavits referred to in the reply ofrespondent No.2 dated 8th August 1994 are enclosedtherein. In the first indemnity of 8th August 1994,there is a specific reference to the above referredletter of intent No.R-NOC/F/553/13686 dated 19thNovember 1992 requiring fulfillment of variousconditions and the indemnity states that thedeveloper absolves the respondent No.3 from itsresponsibility to the extent covered by Chapter VIIIof the MHAD Act, which may arise as a consequence ofthe said NOC for redevelopment. Another affidavitstates that the construction will be carried on asper the plans submitted to the BMC and the respondentNo.5 will not approach the BMC for issuance of partor full completion certificate and occupationcertificate unless arrangements are made toaccommodate all the occupiers from the old existingbuilding into the proposed new building. The thirdundertaking dated 8th August 1994 refers to ConditionNos.1, 2, 3, 4, 5, 6 and 7 from the letter of intentdated 19th November 1992 and accepts all thoseconditions as binding on him, his legal heirs,assigns and those deriving title through or underhim.

45. Then there is further affidavit of 23rdSeptember 1994 affirmed by respondent No.5 to whichthe final list of tenants is enclosed which is as perthe Repair Board and also as per the owner. The listalso gives the names of the occupants and is signedat the bottom by respondent No.5. The list is asfollows:

LIST OF TENANTS / OCCUPANTS-----------------------------------------------------------------------S.No. As per record of Floor As per the ownerBBR & R Board & Room No.-----------------------------------------------------------------------1. Govind Laxman Gr.Floor Chandibai, Legal HeirMirgal Room as per vacation noticeNos.1,2& 32. Ramkrishna Sitaram 1st Floor Ramkrishna SitaramLatke Room No.1 Latke3. Mahadev H. Latke 1st Floor Mahadev H. LatkeRoom No.24. Krishna Panaji Nanavare 1st Floor Maruti KrishnaRoom No.3 Nanavare, as pervacation notice5. Kantilal Mohanlal Shah 1st Floor Nikhil R. Shah,Room No.4 as per vacationnotice6. Lalji Devji Gala 2nd Floor Tejbai Lalji GalaRoom No.1 Legal Heir as pervacation notice7. Vrijlal Parmar 2nd Floor Vrijlal ParmaRoom No.28. Chandrakant Ghandi 2nd Floor Chandrakant GhandiRoom Nos.3 & 49. Smt.Savita S. Barot 3rd Floor Smt.Savita S. BarotRoom Nos.3 & 410. Vithalbhai Parmar 3rd Floor Vithalbhai ParmarRoom No.211. Smt.Prabhavati Chheda 3rd Floor Smt.Prabhavati ChhedaRoom No.112. Smt.Savita S. Barot 4th Floor Kataria Smt.SavitaKataria.S. Barot ----------------------------------------------------------------------- sd/

Bankim Dalal

46. The respondent No.5 has thereafter made onemore affidavit on the same date and placed it beforethe Housing Board pointing out that Mr.Shah andMr.Latke occupying Room No.4 and Room No.2 on thefirst floor had surrendered their tenancy and thelandlord had given those two rooms to Smt.VinodiniDalal, i.e. the mother of respondent No.5.

47. Then we have on record the final No ObjectionCertificate issued by respondent No.2 on 1st October1994. It is also annexed at Exhibit-E to thepetition. This NOC also specifically refers to theletter of intent dated 19th November 1992 in thereference column. In para 1, it is stated that thesociety of 70% of the occupants has to be formed.Para 3 states that the scheme is to be operated withthe consent of the tenants. Para 5, 9 and 12 of thisNOC are relevant and they read as follows:

'5)The plans of the proposed buildingduly approved by M.C.G.B. with FSI 2.00 orconsumed whichever is more shall be furnishedto this office within three months positivelyfrom the date of issue of this NOC, failingNOC stands cancelled.

9)There is no surplus area requiredto be surrendered to the Board since the FSIconsumed in the old building is more than2.00.

12)The entire responsibility torehouse all the bonafide tenants/ occupantsof old bldg. with their occupied equivalentbuilt-up area shall lie with the applicant.Further if the claims of thosetenants/occupants who are staying in Boardstransit camp, but their names are nottallying with the list of tenants/occupantssubmitted by you, are established in future,then it shall be binding upon the applicantto accommodate them in the newly constructedbuilding.'

48. Then we have on record the letter dated 18thNovember 1996 from the architects of respondent No.5which refers to the NOC dated 1st October 1994 andstates that the above work had been completed as perthe approved plan, except installation of the lift,and has complied all required conditions which are asfollows:

'1. Society has been Registered. Thenecessary paper is enclosed.

2. Economy rent for transit camp ispaid. Receipt is enclosed.

3. Boards expenditure is paid.Receipt is enclosed.'

A request is therefore made to issue the occupationcertificate upto four floors. Amongst otherdocuments, a letter dated 24th January 1996 addressedby the Assistant Registrar of Co-operative Societiesto the respondent No.5 is enclosed with this letter.The same is addressed to him in his capacity as theChief Promoter of the proposed Prabhat Co-operativeHousing Society. It states that the said name isreserved for the said society and it is permitted toopen a bank account in the Mumbai District CentralCo-operative Bank Ltd. To this letter, theapplication for registration of the housing society isenclosed. The application is signed by respondentNo.5 as the Chief Promoter. It encloses therewith theresolution electing the Chief Promoter passed in themeeting of the proposed society on 30th October 1995.It contains below it the following 9 names with theirsignatures as the promoters who were present in thesaid meeting.

Name of the Promoter Signatures

1. Govind Laxman Gavi sd/-

2. Ramkrishna Sitaram Latke sd/-

3. Nikhil R. Shah sd/-

4. Tejbai Lalji Gala sd/-

5. Vrajlal P. Parmar sd/-

6. Chandrakant Gandhi sd/-

7. Prabhavati It. Chheda sd/-

8. Vithaldas Parmar sd/-

9. Savitaben S. Barot sd/-

For our purpose, what is relevant to note is that thename of the petitioner appears at Sr.No.7 in this listand she has signed against her name.

49. Then, as pointed out earlier, in Para 7 ofthe reply of respondent No.2 to the main petition,there is a reference to a police complaint and theletter of the Chief Officer dated 14th December 1999(which should be 4.12.1997) to the Senior PoliceInspector. In fact what we find from the file is thatthere is no such letter of 4th December 1999 but it isa letter dated 4th December 1997 addressed to theSenior Police Inspector concerned. That is inresponse to the complaint made to the police officerof V.P. Road Police Station and the query made byhim. As stated in the affidavit, the said letterstates that pending the inquiry, the ExecutiveEngineer (Building Proposal) of BMC was beingintimated not to grant the Occupation Certificate.What is relevant to note is that this letter refers toinspection carried out at the site prior to theissuance of this letter by the concerned DivisionalExecutive Engineer. In the letter of the DivisionalExecutive Engineer dated 1st September 1997, it isreported to the Resident Executive Engineer asfollows:

'Sir,

P.1)With reference to above it is toinform you that the said newly reconstructedbldg. was visited by the undersignedalongwith concerned Dy.Eng. on 4.9.97 &11.9.97 and observed that all the tenants inthe said bldg. are non occupied at present.

P.2)However as per name Board observedto be displayed at the entrance door oftenants during inspection on 4.9.97 and11.9.97, following names appear.

1) Gr.fl. - No name board displayed.

2) 1st fl.- Shri Peerchand Bhansali

3) 2nd fl.- Smt. Asha P. Jain, and

Shri Prakash S. Jain

4) 3rd fl.- Jamatraj B. Shah, andRamesh J. Shah

5) 4th fl.- P.M. Mehta, andS.P. Mehta

6) 5th fl.- Ramesh P. Bhansali

7) 6th fl.- Peerchand M. Bhansali

During inspection details regardingallotment of tenements in the above bldg.could not be ascertained as no responsibleoccupant or representatives are not availableon the bldg. premises.

Also it may be pointed out that thenames appearing on name plates displayed atthe entrance of respective tenement of theabove reconstructed ldg. do not tally withthe names of original tenants list of abovebldg.'

Thereafter it appears that the Chief Officer has madeinquiries only at the transit camp and it is notedthat most of the tenants are no longer there. Thenthe reply dated 4th December 1997 is sent, but noother approach seems to have been made with respondentNo.5 or to contact the erstwhile tenants.

50. The facts emerging from the above narration:The Bhandari building having become old anddilapidated was required to be pulled down sometimesin 1979 since it became dangerous for occupation.Thereafter respondent Nos.1 to 3 rehabilitated thetenants in the transit camp created for that purpose.The petitioner was undoubtedly a tenant of thebuilding before it was pulled down. That time it wasowned by Smt.Kalavati Desai. Initially respondentNos.1 to 3 wanted to reconstruct the building eitheron their own or through a Co-operative Society of thetenants but those efforts did not materialise. In1992 the landlord of the building Smt.Kalavati Desaiand others gave a proposal to reconstruct the propertyon the terms as required by respondent Nos.1, 2 and 3and, therefore, she was issued a letter of intent on19th November 1992. The letter of intent clearlystated that all the occupants will have to be rehousedinto the newly constructed building. It should becomea Co-operative Society of those tenants, provided ofcourse, 70% of the tenants agree to become membersthereof. The tenants will have to contribute to thecost of construction of the building. If a tenanthowever is not willing to do that, he will not beforced to contribute and he will have to be continuedas a tenant on appropriate terms. In the letter ofintent it was made clear that FSI-2 would be availablefor reconstruction, or more if the consumed FSI wasmore. In the instant case, the consumed FSI was moreand, therefore, to accommodate all the tenants lateron, a plan as submitted by the landlord, was approvedby respondent Nos.1, 2 and 3 by giving their N.O.C.for reconstruction. That was for construction of abuilding of ground plus six floors and a partconstruction on the 7th floor.

51. It so happened that in June 1994 theownership of the property changed the hands andrespondent No.5 purchased it from Smt.Kalavati Desaiand others. The same letter of intent of 1992 wasfollowed up by respondent No.5. He agreed to all theterms as contained in that letter of intentspecifically by writing through his Architects andgave specific undertaking that he will abide by allthose terms and conditions. It is on this footingthat the N.O.C. was given by respondent Nos.1, 2 and3 on 1st October 1994 and later on the I.O.D. byrespondent No.4 for ground plus six floors on 25thJanuary 1999. The terms of the letter of intent andthe N.O.C., as accepted by respondent No.5, are veryclear. The reconstruction was for rehousing thetenants of the old building. If at all any bodysurrendered the tenancy, the landlord was required torevert back to respondent Nos.1, 2 and 3 and informthem and it was for respondent Nos.1, 2 and 3 to putin another needy tenant from their transit camp. Inany case, it is very clear that respondent No.5 couldnot put in any occupant without the permission ofrespondent Nos.1, 2 and 3. He understood this veryclearly as seen from the information given torespondent Nos.1, 2 and 3 in September 1994 thatMr.Shah and Mr.Latke, tenants of the 1st floor, hadsurrendered their tenancy and in their place,Smt.Vinodini Dalal, mother of respondent No.5 wasinducted as a tenant. Inasmuch as no dispute israised by respondent Nos.1 to 3 to this, it can betaken that her tenancy of these two rooms wasaccepted. However, there is nothing to indicate onrecord as to what happened to the other originaltenants whose names continued on the record ofrespondent Nos.1, 2 and 3 until 1995. It is verypertinent to note that in the meeting of the Promoterscalled by respondent No.5 as the Chief Promoter on30th October 1995 to form a Co-operative HousingSociety, the names of as many as 9 tenants figured asattending the first meeting of the proposed Society.On that form their signatures appear including that ofthe petitioner and this form is forwarded torespondents Nos.1 to 3 by the Architect of respondentNo.5 as recently as on 18th November 1996.

52. It is also material to note that when theArchitects of respondent No.5 sought N.O.C. on6.9.1994 they forwarded the agreements dated 8thAugust 1994 entered into with all the tenants. Theyare all stereo-type and the petitioner also enteredinto with one such agreement for a flat of 256 sq.ft.on 5th floor being flat No.10. It is on the strengthof the compliance of various conditions of the letterof intent dated 19.11.1992 that the N.O.C. was soughtby the application dated 6.9.1994. Respondent No.5,therefore, cannot go behind the N.O.C. granted on1.10.1994 which was on the basis of his undertakingthat he will make available flat No.10 on 5th floor of256 sq.ft. to the petitioner. Later-on when thebuilding was ready, the Architects of respondent No.5sought the recommendation for occupation certificateby their letter dated 18th November 1996. Along withthat application, the letter from the AssistantRegistrar of Co-operative Societies grantingpermission to open account and reserving the name ofPrabhat Co-operative Housing Society was alsoforwarded. Along with that letter a form containingthe minutes of the first meeting of the Promoters heldon 30th October 1995 was also forwarded and one of thenine signatories thereto is the petitioner. It is onthis footing that the occupation certificate has beenrecommended and later on granted in part by respondentNo.4-Municipal Corporation. Respondent No.5,therefore, cannot go behind these letters,representations, assurances and the commitments madeby him through these communications.

53. Now, what is material to note is that theoriginal agreement of 8th August 1994 provided paymentof proportionate construction cost of the buildingdeveloped by the landlord. The agreement of 12thJanuary 1995 recorded that respondent No.5 had agreedto give an area of 300 sq.ft. free of cost and forthe additional 200 sq.ft., the actual constructioncost will be paid by the petitioner. It is alsostated in Clause-4 of this agreement that the tenancyof the room will continue till the petitioner is putback in vacant possession of the flat and on that dateit will be converted into ownership. The petitionerclaims to have made payment of Rs.10,000/- each inJanuary 1996 and May 1996. It is true that theassertion of the petitioner in that behalf came forthe first time when she filed Suit No.812 of 1997 inFebruary 1997. However, the respondent No.5 tooknearly two years to file his reply to the Notice ofMotion taken out therein and he filed it in January1999. In that reply, he accepted that such an amountof Rs.20,000/was received but for the first timecontended that although the payment was made by a PayOrder, the petitioner received back the money in cash.Again, it is at that time in January 1999 thatrespondent No.5 for the first time stated that theagreement of 12th January 1995 was entered intobecause of the force and coercion exerted by thehusband of the petitioner. It is also stated for thefirst time that the words 'flat on the 6th floor' wereadded into this agreement by the petitioner and inthat way, the agreement was fabricated.

54. Now, it is material to note that respondentNo.5 had undertaken all throughout that he was boundto rehabilitate all the tenants in the newlyconstructed building. All such written undertakingsare given by him to respondent Nos.1, 2 and 3. Hesought the N.O.C. on that footing. He knew that ifany body surrenders the tenancy he had to informrespondent Nos.1, 2 and 3 and that is how he informedrespondent Nos.1, 2 and 3 through an affidavit made inSeptember 1994 that Mr.Shah and Mr.Latke hadsurrendered their tenancy. There is no suchinformation given with respect to any other tenantsthat they have surrendered their tenancy. As per therecord of the Housing Board and as per the paperssubmitted by respondent No.5 to them as recently as on18th November 1996 he recognised that the petitionerhad a right to come back into the tenement in thenewly constructed building of Society. This isbecause on that date his Architects have made theapplication for the occupation certificate forwardingthe papers of the proposed Society. What is materialto note is that admittedly the payment of Rs.20,000/isreceived in January and May 1996 and that is inpursuance of the agreement of January 1995. If infact no such payment was made and if the agreement wasforced upon respondent No.5, he should have brought tothe notice of respondent Nos.1, 2 and 3 or lodged aPolice Complaint. He submits that he was not givenany copy of the agreement but he does not disputehaving signed and it is his assertion that amount oftwo Pay Orders of Rs.20,000/- was taken back in cash.If that had really happened, it would have beenrecorded some where. As against that, we have thecase of respondent No.5 that some other six tenantsalso surrendered their tenancy. As pointed outearlier, when Mr.Shah and Mr.Latke surrendered theirtenancy, necessary information was given by respondentNo.5 to respondent Nos.1, 2 and 3. There is nothingon record in this behalf regarding surrender of othertenancies. So, we have no source to know as to whathappened to other tenants. It is quite possible thatthey are also in the dark. However, as far as thepetitioner is concerned, she had been consistentlyfollowing her claim to this tenement and when noparticulars are given by respondent No.5 as to whathappened to these other tenants, on the background ofhis undertaking to accommodate all of them given tothe Housing Board, it is not possible to accept thesubmission that the petitioner forced the agreement of12th January 1995 on respondent No.5. It is the caseof the petitioner that her husband is a heart patient.It is no where stated that the petitioner brought anyhirelings or gundas to force such agreement. On theother hand, it is clear that respondent No.5 hasinducted outsiders in place of the other tenancies.It appears to be more probable that he wanted to dothe same thing to the petitioner rather than thepetitioner doing any such wrong thing to respondentNo.5. It is not possible to accept any suchexplanation by respondent No.5 which, on the face ofit, is implausible.

55. Submissions on behalf of the petitioner :

Ms.Purohit, learned Counsel appearing for thepetitioner, therefore, submitted that under the schemeof the Act, respondent Nos.1, 2 and 3 had taken it onthem to protect the tenants of the dilapidatedbuildings. Respondent No.5 was essentially acting asagent of respondent Nos.1 to 3 under Section 79(2) ofthe MHAD Act and, therefore, a direction ought to beissued to respondent Nos.1, 2, 3 and 5 to place thepetitioner in possession of flat No.10 on the 5thfloor. In her submission, the agreement made in theyear 1994 was supplemented by the agreement of 12thJanuary 1995. The petitioner had made further paymentof Rs.20,000/- for the additional space and ifnecessary, she was prepared to pay further amount aswould be determined by respondent Nos.1, 2 and 3.She, however, cannot be made to suffer any further bybeing kept out of the tenement which is lawfully dueto her. Ms.Purohit relied upon a judgment of theConstitution Bench of the Apex Court in the case ofCalcutta Gas Company (Proprietary) Ltd. State of WestBengal & ors. reported in : AIR1962SC1044 . Inthat matter, the Apex Court held that Article 226confers a very wide power upon the High Court to issuedirections and writs for enforcement of any of therights conferred by Part III of the Constitution orfor any other purpose. The Court held that personsother than those claiming fundamental rights can alsoapproach the High Court seeking the reliefthereunder. Ms.Purohit placed into service the dictaof Fazl Ali, J. in another Constitutional Benchjudgment of the Apex Court in the case of CharanjitLal Chowdhary vs . The Union of India & ors. reportedin : [1950]1SCR869 . In Para-18 thereof, thelearned Judge observed 'Article 14 of the Constitutionlays down an important fundamental right, which shouldbe closely and vigilantly guarded, but, in construingit, we should not adopt a doctrinaire approach whichmight choke all beneficial legislation.' Ms.Purohitalso placed into service the approach recommended byKrishna Iyer, J. in the case of State of Kerala vs.Kumari T.P. Roshana & ors. reported in : [1979]2SCR974 wherein the learned Judge emphasizedthe necessity of adopting an affirmative approach sothat the grievance is redressed.

Arguments on behalf of respondent No.5:

56. Ms.Sidhwa, learned Counsel appearing for therespondent No.5, submitted that the High Court wouldnot ordinarily entertain the writ petition to enforcea contractual right particularly when an efficaciousalternate remedy was available. She submitted thatthe agreement of 1994 and in any case the agreement ofJanuary 1995 were essentially a matter of contractbetween the petitioner and respondent No.5. Accordingto the petitioner, she was a tenant of the propertyand if that was so her remedy was to approach theCourt of Small Causes under the Bombay Rent Act but inany case, having approached the City Civil Court, shehad availed of another remedy. Without waiting for adecision thereon, she withdrew the suit and has comein writ jurisdiction. This should not be permitted.She relied upon the observations of the Apex Court inthe case of State of Himachal Pradesh vs . RajaMahendra Pal & ors. reported in : [1999]2SCR323 in this behalf. The Apex Court held in that matterthat 'the powers conferred upon the High Court underArticle 226 of the Constitution are discretionary innature which can be invoked for the enforcement of anyfundamental right but not for mere contractual rightsarising out of an agreement particularly in view ofthe existence of an efficacious alternative remedy.The constitutional Court should insist upon the partyto avail of the same instead of invoking thatextraordinary writ jurisdiction of the Court'. It ishowever material to note what the Court has addedimmediately thereafter - 'This does not however debarthe Court from granting the appropriate relief to acitizen under peculiar and special factsnotwithstanding the existence of an alternativeefficacious remedy. The existence of the specialcircumstances are required to be noticed before theissuance of the direction by the High Court whileinvoking the jurisdiction under the said Article.'Ms.Wadhwa further relied upon a judgment of the ApexCourt in the case of Durga Prasad vs . Naveen Chandra& ors. reported in : [1996]3SCR209 wherein alsothe same approach was adopted. It is however materialto note that in the facts of that case a civil courthad declined to set aside a decree under Order IX Rule13 of the Code of Civil Procedure and instead offiling a revision a writ petition under Article 226 ofthe Constitution of India was resorted to. She thensubmitted that when the disputed questions of factswere involved and particularly with respect to title,they could not be satisfactorily gone into a writpetition. She relied upon the ratio in the case ofState of Rajasthan vs. Bhawani Singh & ors. reportedin 1993 Sup. (1) S.C.C. 306 and the case of JaiSingh vs . Union of India & ors. reported in : [1977]2SCR137 in this behalf.

57. Objections on behalf of respondent No.7 :Mr.Abhyankar, learned Counsel appearing forrespondent No.7, raised various objections such asdelay in filing of the petition, non-joinder of someof the parties supposed to be necessary parties,abandonment of the claim, questions of facts, resjudicata and non-permissibility of exercise of writjurisdiction for enforcing private contracts.

Mr.Abhyankar submits that under the agreement ofJanuary 1995 possession was to be given by the end ofDecember 1995. Thus the petitioner had a cause ofaction on 1st January 1996 itself. She, however,chose to file a civil suit in the meanwhile inFebruary 1997 and wrote to respondent Nos.1, 2 and 3for the first time on 5th April 1999. The petitionhas been filed thereafter on 21st June 1999.Therefore, according to him, the petition suffers fromdelay and laches. Then again, as far as respondentNo.7 is concerned he was very much joined in the suitfiled in February 1997 but although the writ petitionwas filed in June 1999, respondent No.7 was joinedtherein only when Notice of Motion No.262 of 2001 wastaken out on 27th August 2001. Thus, there is a delayin joining respondent Nos.7 (and 6 also) who would beaffected if the petition is entertained. Mr.Abhyankarrelied upon the observations of the Apex Court inParas 7 to 11 in the case of M/s.Tilokchand Motichand& ors. H.B.Munshi, Commissioner of Sales Tax, Bombay& ant. reported in : [1969]2SCR824 . In Para-10 ofthat judgment the Court observed that when it comes towrit petition utmost expedition is the sine qua nonfor such claims. The party aggrieved must move theCourt at the earliest possible time and explainsatisfactorily all semblance of delay. It is observedin Para-11 of this judgment, which we would say ismaterial for our purpose and which is as follows:-

' Therefore, the question is one ofdiscretion for this Court to follow from caseto case. There is no lower limit and thereis no upper limit. A case may be broughtwithin Limitation Act by reason of someArticle but this Court need not necessarilygive the total time to the litigant to movethis Court under Art.32. Similarly in asuitable case this Court may entertain such apetition even after a lapse of time. It willall depend on what the breach of theFundamental Right and the remedy claimed areand how the delay arose. '

The same judgment is quoted with approval andelaborated in the other judgments relied upon byMr.Abhyankar which are (i) R.S. Deodhar & ors. vs.The State of Maharashtra & ors. reported in : (1974)ILLJ221SC , (another Constitution Benchjudgment wherein the court refused to accept theobjection of delay) (ii) M/s.Dehri Rohtas LightRailway Company Ltd. vs.District Board, Bhojpur &ors.; reported in : [1992]2SCR155 and(iii) N.L.Abhyankar vs. Union of India & ors.reported in 1995(1) Maharashtra Law Journal page 503.

58. Non-joinder of parties :

Mr.Abhyankar submitted that as far respondentNo.7 is concerned, he was joined in Suit No.812 of1997 as defendant No.2. Yet the petitioner did notjoin him as respondent in the present petition untilAugust 2001 when he (along with respondent No.6) wasjoined in Notice of Motion No.262 of 2001 and then inthe writ petition. He submitted that as per theagreement entered into by respondent No.5, flat No.10was allotted to Mr.Kamlesh, son of respondent No.5,and he has not been joined as a respondent. Then hesubmitted that alternatively the petitioner isclaiming any other flat in the building. That beingso, other allottees ought to have been joined asrespondents. He next submitted that since theconcerned flat had been mortgaged to Union Bank byrespondent No.7 and since Meena Metal Impex hadpurchased the property in auction they also ought tohave been joined as respondents. Not joining themwill render the order to be passed infructuous.

59. AbandonmentMr.Abhyankar then submitted that earlier thepetitioner filed Suit No.812 of 1997. She had soughtspecific performance of the agreement of 12th January1995 which was concerning flat No.11 on 6th floor. Inthat suit, she had not pressed for any relief on thebasis of the agreement of August 1994 for flat No.10on the 5th floor which she was claiming now. Thus,she had given up the claim for this flat on the 5thfloor and she could not be permitted to claim it now.Besides, when the petition was admitted, initially shewas satisfied with the order that one flat be keptvacant for her or for that matter with the subsequentorder, that the flat on the 8th floor be reserved forher. All this indicates abandonment of the presentclaim for the flat on the 5th floor. Mr.Abhyankarsubmitted that as contended by Ms.Sidhwa, there weredisputed questions of facts also. He submitted thatexecution of the agreement of 12th January 1995 wasdisputed by respondent No.5. That being so, in writjurisdiction, it should not be enforced. The validityand enforceability of that agreement will have to befirst decided on evidence and until then the writjurisdiction cannot be resorted to. He relied uponthe judgment of the Apex Court in the case of KrishanLal Gupta & ors. vs . Adhishashi Adhikari & ors.reported in : (1998)9SCC587 in this behalfwherein the court held that civil suit instead of writwould be proper remedy.

60. Effect of withdrawal of earlier Suit :Mr.Abhyankar has led great emphasis on thefact that the earlier Suit No.812 of 1997 waswithdrawn unconditionally without even a liberty toinstitute fresh proceedings. In his submission thepresent petition would, therefore, be barred under theprovision of Order 23 Rule 1(4) of the Code of CivilProcedure. He relied upon the judgment of the ApexCourt and particularly the observations in Paras 7 and9 in the case of Sarguja Transport Service vs . StateTransport Appellate Tribunal, Gwalior & ors. reportedin : [1987]1SCR200 . In that judgment, the Apex Courtheld that the principle underlying Order 23 Rule 1 wasfounded on public policy though it was not the same asthe rule of res judicata. He referred to anotherjudgment of the Apex Court in the case of M/s.Upadhyay& Co. vs . State of U.P. & ors. reported in : AIR1999SC509 on Order 23 Rule 1 of C.P.C. In Paras12 and 13 thereof, the Court referred the judgment inSarguja Transport (supra) and recorded that the rulewas meant principally for suits but very often atendency was seen that when the Court was against thepetitioner in writ, the writ petition was withdrawnand then suit was filed. Such practice was deprecatedin that judgment.

61. Non-enforceability of private contracts inwrit:

Mr.Abhyankar lastly submitted that the twoagreements and particularly the second one of January1995 was a private contract between respondent No.5and the petitioner and the writ jurisdiction could notbe allowed to be utilised for enforcement thereof. Inhis submission, respondent No.5 could not beconsidered as an agent of respondent Nos.1, 2 and 3and the suit for specific performance was the onlyproper remedy. He relied upon the judgment of theApex Court in the case of Divisional Forest Officervs. Bishwanath Tea Co.Ltd. reported in : [1981]3SCR662 . In that matter, the Apex Court held thatif there was a statutory provision and the same wasincorporated in a lease or contract which will becomea part of the terms of that lease or contract then itwill lose the statutory character. Enforcement ofsuch a lease would ordinarily be cognizable by theCivil Court. In this behalf, he relied upon thejudgment of the Apex Court in the case of BareillyDevelopment Authority & anr. vs . Ajai Pal Singh &ors.; reported in : [1989]1SCR743 also (althoughthe judgment is regarding right of developmentauthority to alter the terms of allotment of houses).Mr.Abhyankar lastly submitted that respondent Nos.6and 7 were bona fide purchasers of their flats. Theywere equally deceived by respondent No.5 and theyshould not be made to suffer any further having spentthe money to purchase the flats and thereafter also tobuy the property in auction. He, therefore, submittedthat at the most a relief be granted to the petitionerwith respect to the flat on the 7th floor or on the8th floor as and when it is developed but not againstthe flat No.10 on the 5th floor which was in fact soldby respondent No.5 to Kamlesh Bhansali, son ofrespondent No.7.

62. Rights of the tenants of buildings demolishedon account of having become dilapidated:

As far as the rights of the tenants areconcerned, prior to the enactment of the Rent Act, theview taken was that if a building became dilapidatedand collapsed due to the passage of time, the tenancyalso came to an end. The Bombay Rent Act, 1947 made asignificant change in this position. Section 13 ofthis Act provided for the ground on which a landlordmay recover the possession of the premises byobtaining a decree for possession from the concernedCourt. Otherwise the tenant in the areas covered bythe said Act would not be evicted from the tenantedpremises. Section 13(1)(hh) made a provision that thelandlord may recover the possession of the premisesconsisting of not more than two floors where they arereasonably and bonafide required by the landlord forthe purposes of demolishing the building and thedemolition is to be made for erecting a new building.

This section 13(1)(hh) is to be read with sub-sections3A and 3B of the said section. Sub-section 3Aprovided that such a decree for eviction will not bepassed unless the landlord produces the certificategranted by a certain Tribunal under sub-section 3B andgives an undertaking as contained in sub-section 3Awith respect to the area to be provided in the newbuilding and the time frame for the beginning andcompletion of the work. The above referred sections13(1)(hh) and sub-section 3A and 3B read as follows:

'13. When landlord may recover possession.-

(1) Notwithstanding anything contained inthis Act but subject to the provisions ofsection 15 and 15A, a landlord shall beentitled to recover possession of anypremises if the Court is satisfied -

that the premises consist of not morethan two floors and are reasonably and bonafide required by the landlord for theimmediate purpose of demolishing them andsuch demolition is to be made for the purposeof erecting new building on the premisessought to be demolished. Explanation.- For the purpose of this clause,premises shall not be deemed to consist ofmore than two floors by reason that on theterrace of a building there are one or moreof the following structures that is to say,tower-rooms, sitting-out-rooms, ornamentalstructures, architectural features, landings,attics or one or more rooms of whatsoeverdescription (such room or rooms, being in theaggregate of an area of not more thanone-sixth of the total area of the terrace).'

'(3A). No decree for eviction shall bepassed on the ground specified in clause (hh)of sub-section (1), unless the landlordproduces at the time of the institution ofthe suit a certificate granted by theTribunal under sub-section (3B) and gives anundertaking,-

(a) that the new building to be erectedby him shall subject to theprovisions of any rules, by-laws orregulations made by a localauthority, contain not less thantwo times the number of residentialtenements, and not less than twotimes the floor area, contained inthe premises sought to bedemolished;

(b) that the work of demolishing thepremises shall be commenced by himnot later than one month, and shallbe completed not later than threemonths, from the date he recoverspossession of the entire premises;and

(c) that the work of erection of thenew building shall be completed byhim not later than fifteen monthsfrom the said date:

Provided that, where the Court is satisfiedthat the work of demolishing the premisescould not be commenced or completed, or thework of erection of the new buildings, couldnot be completed, within the time for reasonsbeyond the control of the landlord, the Courtmay by order for reasons to be recordedextend the periods by such further periods,not exceeding three months at a time, as may,from time to time, be specified by it, sohowever that the extended period shall ineach case not exceed twelve months in theaggregate.

(3B) (a) For the purposes of sub-section (3A), the State Government may from time totime constitute a Tribunal consisting of suchpersons and for such local area as it thinksfit.

(b) The Tribunal constituted under clause (a)may grant a certificate after being satisfiedthat-

(i) the plans and estimates for the newbuilding have been properlyprepared;

(ii)(deleted)

(iii) the necessary funds for the purposeof the erection of the new buildingare available with the landlord;

and

(iv) such other conditions as the StateGovernment may by general orspecial order specify, have beensatisfied.

(c) The proceedings before the Tribunal shallbe in the manner as may be prescribed byrules made by the State Government in thisbehalf.'

63. The above referred section 13(3B) hadinitially a sub-clause (3B)(ii) which came to bedeleted by Bombay Act No.61 of 1953. That sub-clauseread as follows:

(ii)the plans provide that the newbuilding shall include tenements equivalentto the tenements which are proposed to bedemolished. For the purpose of thisparagraph, a tenement shall be deemed to beequivalent if the floor space of the tenementis not greater or less than the floor spaceof the corresponding tenement proposed to bedemolished by more than ten per cent.'

Thus prior to the above deletion, there was a specificresponsibility cast on the landlord to approach theTribunal for the required certificate and the Tribunalhad to see to it that the plans for the new buildingwill include tenements equivalent to tenements whichwere proposed to be demolished. The right to demolishthis ground plus two storey building was furthersubjected to the restrictions under sections 17A, 17Band 17C of the Act, which were introduced by BombayAct No.53 of 1950. Section 17A provided for recoveryof possession for demolishing the building. Section17B gave a right to the tenant to give notice to thelandlord of his intention to occupy the tenement inthe new building and section 17C casts aresponsibility on the landlord to intimate to thetenant the date of completion of the buildingwhereupon the tenant is expected to occupy thetenement within certain time.

64. In view of the deletion of sub-clause (ii) ofsub-section 3B, a question arose as to whether afterthe completion of the building, the tenant wasentitled to the tenements equivalent to the tenementsin the demolished building. In Merwanji v. Anteloreported in 1963 M.L.J. 582 a Division Bench of thisCourt observed in para 9 of the judgment as follows:'9..... If the Court finds that thelandlord is so constructing his building thatthe tenements cannot be suitable to thetenants intended to be evicted, the Courtwould be entitled to hold that therequirements of the landlord are notreasonable and bona fide. This inference isjustified if one considers the whole schemeof the Act which does not show that therights that are given by the Act to thetenants are not intended to be illusory. Itis true that the undertaking to be given isthat the new premises shall not contain 'notless than two times the number of residentialtenements and not less than two times thefloor area'. Yet the intention is clear thatas far as possible the tenants rights shouldnot be prejudiced and that subject to therules of the Municipal Corporation withinwhose area the proposed building is to bebuilt, the floor area of the tenement to beallotted to the tenant should be similar tothe area from which the tenant is beingevicted. This construction is supported bythe provisions of sections 17, 17B and 17C inwhich care is taken to safeguard the tenantin all possible respects. The only object inomitting sub-clause (ii) of sub-section(3B)(a) of section 13 was to make mattersconsistent with modern ideas of residentialflats and not to give the owner of thebuilding a free hand. '

65. Thus the position was this-wise that if thetenanted buildings of ground plus two storeys becamedilapidated and were required to be demolished, thelandlord could do that provided of course the tenantis rehoused in the new building by providing an almostequivalent space. The Bombay Rent Act was repealedand replaced by the Maharashtra Rent Control Act, 1999which came into force from 31st March 2000. Section16(1) of the New Act is corresponding to section13(1)(hh) of the Bombay Rent Act and sections 19, 20and 21 of the new Act are corresponding to theprovisions contained in sections 17A, 17B and 17C ofthe earlier Act. In the new section 16(1), the limitof two storeys has been removed. The new section16(1)(i) reads as follows:

'16. When landlord may recover possession.-

(1) Notwithstanding anything contained inthis Act but subject to the provisions ofsection 25, a landlord shall be entitled torecover possession of any premises if theCourt is satisfied- (i) that the premises are reasonablyand bona fide required by thelandlord for the immediate purposeof demolishing them and suchdemolition is to be made for thepurpose of erecting new building onthe premises sought to bedemolished.'

66. The rights of such tenants for accommodationin the new building under the earlier Act came up forconsideration before a Single Judge of this Court inSundari v. Shaikh Mohamed reported in 1989 M.L.J 66 . In para 20 and 22 of that judgment, the learnedJudge held as follows:

'20. ...... what is significant is thatunder the scheme of the Act, it is not thatthe erstwhile tenancy comes to an end on thelandlord filing a suit under section13(1)(hh). In law no tenancy comes to an endwhen a landlord institutes a suit undersection 13(1)(hh). The scheme of section13(1)(hh) together with the procedurecontemplated in that behalf under section13(3)(A) and section 13(3)(B) of the Act isto enable the landlord to develop theproperty while it is permissible under thelaw, and in such an event to give necessaryfacility and for that purpose to recoverpossession from the tenant concerned, with anassurance that on completion of the newbuilding the tenant shall be rehabilitated asprovided under the law. That is contemplatedunder sections 17A, 17B and 17C of the Act.'

'22. ...... Till such time, the tenantgives notice under section 17B of the Act,his tenancy remains in abeyance. Once suchnotice is given, the same becomes enforceableas and when the new building is completed.In the present case, the landlord has alsogiven an undertaking that they would givepossession of a new tenement to the tenant.In view of this legal position, the landlordsare bound to give the premises back to thetenant on the old terms and conditions asprovided under the statute but with a rightthat the rent shall be at a particular figurewhich the parties agree as proper andreasonable. There is no new tenancy in asituation of this type. It is the statutethat has brought about this relationship, theobject being to sustain and continue theerstwhile lease in respect of the newtenement assigned to him by the landlord.'

67. As noted above, although a provision for theprotection of the tenants of dilapidated buildings wasmade in the Bombay Rent Act, it was restricted to thebuildings having ground plus two storeys only untilthe Maharashtra Rent Control Act, 1999 came into forceon 31st March 2000 and the limit of two storeys wasremoved. In the meanwhile, the problem of largenumber of houses collapsing in Greater Bombay everyyear had necessitated the evacuation of persons andcaused a considerable loss to the lives andproperties. The State Government and the MunicipalCorporation of Greater Bombay were anxiously concernedwith this situation. It was felt necessary to have asuitable legislation for preventing house collapsesand salvaging dilapidated buildings and reconstructingthem wherever necessary and to provide for levy of anadditional cess to meet the expenditure in thisbehalf. The State Government therefore came up withthe Bombay Building Repairs and Reconstruction BoardAct, 1969 which came into force from 31st December1969. The Act provided for levy of a cess in aparticular manner on the tenanted properties in thecity of Bombay and to utilise the said fund forundertaking structural repairs to buildings which werein ruinous condition and which were likely to fall andalso to reconstruct those buildings which wererequired to be demolished. The tenants of thedemolished buildings were to be accommodated in thetransit camps in the meanwhile and subsequently in thebuildings when reconstructed. This Act wassubsequently repealed when Maharashtra Housing andArea Development Act came to be passed in the year1976. Chapter VIII of this Act made a provision forrepairs and reconstruction of dilapidated buildings.Section 76 thereof laid down the duties relating tothe repairs and reconstruction. Section 77B of theAct gives a special power to the Mumbai Board to getthe tenements vacated and to shift the occupants tothe alternative temporary accommodation. The saidsection 77B reads as follows:

'77. The Board, in the exercise of itspowers, performance of its duties anddischarge of its functions under this Chaptermay-

(a).....

(b)cause any building proposed to bestructurally repaired or reconstructed ordemolished to be vacated if so considerednecessary, within a specified period, andtake or cause to be taken such steps and useor cause to be used such force as may bereasonably necessary therefor.

Where any such building or part thereof iscaused to be vacated, the Board shall allotto the occupiers who are dishoused orrequired to vacate their premises temporaryaccommodation in any building maintained bythe Authority at such place and to suchextent as it deems fit; and the relevantprovisions of this Chapter shall mutatismutandis apply to such occupiers.'

68. Section 79 of the Act provides forundertaking the repairs and reconstruction andsub-section (2)(a) provides for handing over such workto any other agency. This section 79 reads asfollows:

'79. (1) The Authority may, on such termsand conditions as it may think fit to impose,entrust to the Board the framing andexecution of schemes for building repairs orfor reconstruction of buildings or forhousing and rehabilitation of dishousedoccupiers, whether provided by this Act ornot, and the Board shall thereupon undertakethe framing and execution of such schemes asif it had been provided for by this Act.

(2) The Board may, on such terms andconditions as may be agreed upon and with theprevious approval of the Authority -

(a) hand over the execution under its ownsupervision of any building repairs scheme,building reconstruction scheme, or dishousedoccupiers housing scheme to a MunicipalCorporation or to a co-operative society orto any other agency recognised for thepurpose by the Board, as it may deemnecessary, and

(b) transfer by sale, exchange or otherwisein any manner whatsoever any new buildingconstructed on any land acquired under thisChapter to any co-operative society, if it isformed by all the occupiers, or to apartmentowners for the purposes of the MaharashtraApartment Ownership Act, 1970 (the apartmentowners being all such occupiers).'

(Underlining supplied)

69. Section 91(5)MAHARASHTRA HOUSING AND AREA DEVELOPMENT ACT, 1976^ of the Act provides that theconstruction is to be carried out as per the NoObjection Certificate to be given by the Board. Thissection 91(5) reads as follows:

'91.(5) Where the whole building collapses oris rendered uninhabitable, and is, therefore,not capable of being repaired and renderedfit for habitation, and the property is notacquired under sub-section (3), then, no planfor erecting any new building on land onwhich such building was standing shall besanctioned by the Mumbai Corporation unless ano objection certificate from the Board hasbeen produced along with such plan forerecting such building.'

(Underlining supplied)

70. Section 94(5) of the Act provides for theright of such tenants/ occupiers to get accommodationin the new building whether or not he acceptstemporary accommodation. This section 94(5) wasreplaced by sub-sections (5) and (6) by MaharashtraAct No.16 of 1998 which came into force on 4th May1998. The old section 94(5) reads as follows:-

'94.(5) Subject to the provisions of thissection, every occupier, whether or not heaccepts temporary accommodation, shall have aright to get such accommodation in the newbuilding or in such other building maintainedby the Authority, and on payment, of suchrent service charges, hire purchaseinstalment or, as the case may be, sale priceand subject to such other terms andconditions,as the Board may determine. Ifany occupier fails to accept and occupy theaccommodation allotted to him within onemonth from the date of allotment, theresponsibility of the Board to provide himwith any accommodation shall also cease.'

The new Sections 94(5) and 94(6) read as follows:-

94(5) Subject to the provisions of thissection, every occupier whether or not heaccepts temporary accommodation, shall have aright to get such accommodation in the newbuilding free of cost. Occupiers of the newbuilding shall be required to form aco-operative housing society under theMaharashtra Co-operative Societies Act, 1960.The ownership of the new building shall thenbe transferred by the Board in the name ofsuch co-operative housing society of theoccupiers.

(6) If any occupier of any new building,after accepting and occupying theaccommodation allotted to him, fails tobecome a member of the co-operative housingsociety formed by the occupiers of suchbuilding within a period of three months fromthe date of allotment or the date specifiedby the Board, the right of such occupier toget such accommodation shall stand forfeitedand the occupier who is occupying the newaccommodation shall be liable for evictionand the responsibility of the Board toprovide him any accommodation shall cease.'

71. The provisions of section 44 of this Actproviding for basis of determination of the amountsfor acquisition of lands in municipal areas came to bechallenged on the touchstone of Articles 14, 19 and 31of the Constitution of India and the Apex Court inState of Maharashtra v. Basantibai reported in : [1986]1SCR707 protected the same on the touchstone ofArticle 31C. Article 31C being a law giving effect tothe policy of the State secured the principles laiddown in Part IV of the Constitution. The Courtobserved in para 14 as follows:

'14..... The High Court erred intaking a very narrow view of the objects ofthe Act and the functions of the Authorityunder it. We are satisfied that the Act isbrought into force to implement the directiveprinciple contained in Art. 39(b) and henceeven if there is any infraction of Art.14 itis cured by Art.31C which is clearlyattracted to the case.'

(Underlining supplied)

72. Section 185 of the MHAD Act provides formaking regulations for all or any of the matters whichhave to be or may be prescribed by regulations underthe provisions of the Act. The Maharashtra Housingand Area Development (Estate Management, Sale,Transfer and Exchange of Tenements) Regulations, 1981are framed under this power and they applied to theestate management, sale, including transactions in thenature of sale by different tenants transferring andexchanging the premises, not being the premises usedor to be used for office or an undeveloped site andthey apply in relation to the premises of theAuthority in the whole of the State except as providedin Chapter VIII of the Act. Chapter VIII of theseRegulations contains a provision relating to theestate management of the Authority for the purposes ofChapter VIII of the Act. Regulation 34 in thisChapter deals with allotment of accommodation inrepaired or reconstructed premises. Regulation 34(3)reads as follows:

'34(3)As far as possible, the occupiermay be provided with an accommodation in thereconstructed building of floor areaequivalent to the floor area in the oldbuilding occupied by him but in no caseexceeding 68 sq.m. for any occupier of aresidential tenement.'

Regulation 35 provides that no tenement in a buildingconstructed out of the monies to the credit of therepairs fund under Chapter VIII shall be allotted toany person other than persons who are dishoused in thecircumstances provided in that Chapter. Regulation35A provides for regularisation of the transfers bycharging penalty when such transfers are made bydishoused persons to some others without thepermission of the board.

CONCLUSIONS:

73. The above narration of facts and legalposition establishes that the legislative policy underthe old Bombay Rent Act as well as under the newMaharashtra Rent Control Act, 1999 is to protect thetenants of the dilapidated buildings. As far as theisland city of Mumbai is concerned, the Legislaturefelt that the problem of such dilapidated buildingswas acute and therefore earlier it passed an Act knownas Bombay Building Repairs and Reconstruction BoardAct, 1969 and consequently replaced the same by theprovisions of Chapter VIII of the MHAD Act.Respondent No.3 is the Board constituted under theearlier Act and which has continued to function underthe above referred chapter of the latter Act. TheBoard has the power to collect the cess from thetenants of the tenanted buildings in the island cityof Mumbai and that fund is utilised for the repair andreconstruction of these buildings. In the instantcase, we are concerned with the demolition andreconstruction of a dilapidated building and the rightof a tenant to come back into a tenement when thebuilding is reconstructed. As noted above, it iseither the Board or the society formed by theoccupying tenants which takes up this work ofreconstruction or under section 79(2)(a). It can alsobe handed over 'to any other agency recognised for thepurpose by the Board'. As stated in the said section,the respondent No.3 Board may hand over the executionof such a scheme to such other agency, but it has tobe under its own supervision as stated in the saidsection and also under such terms and conditions asmay be agreed upon and with the previous approval ofthe respondent No.1 Authority.

74. In the present case initially an effort wasdone by the Board and then also by the occupants torepair and reconstruct the building, but, as borne outby the record of respondents Nos.1 to 3, since thecosts became excessive, the work was decided to behanded over to other agency under the said section.Now it is again material to note that such aconstruction has to be carried out as per the NOC tobe given by respondent No.3 Board under section 91(5)of the MHAD Act. The said section states that no planfor erecting any new building is to be sanctioned bythe respondent No.4 Municipal Corporation unless NOCfrom respondent No.3 Board is produced along with sucha plan for erecting the building. As pointed outearlier, it is the predecessor in title of respondentNo.5 - Smt. Kalavati Desai, who earlier approachedfor the necessary NOC from respondent No.3 Board. TheLetter of Intent was issued to her on 19th November1992. Subsequently on respondent No.5 purchasing thisproperty from the said Smt.Kalavati Desai, heapproached the Board to proceed on the basis of thesaid Letter of Intent through his architects videtheir letter dated 6th September 1994. This letterclearly refers to the above Letter of Intent dated19th November 1992. The said letter dated 6thSeptember 1994 clearly accepts the 16 conditions inthe Letter of Intent dated 19th November 1992, some ofwhich are reproduced earlier hereinabove.

75. The said letter clearly accepts in para 2that all occupiers of the existing building shall berehoused in the newly constructed building. Itencloses the agreements with the tenants along withthat letter. Thereafter in para 3, it is stated thatevery occupier will be provided with the built-up areaequivalent to what they were occupying in the existingbuilding. Para 4 encloses therewith the names of thetenants and the area occupied by them along with theplan. Condition No.5(c) of the Letter of Intent wasthat it shall not be permissible to force thoseoccupiers of the old building who do not becomemembers of the society to purchase the newlyconstructed tenement and if they insist on a rentalbasis, the same shall be given to them on standardrent. Thereafter it is stated that this issue must bedecided by mutual agreement between the housingsociety of the occupiers / developer and the owner.With respect to this Condition No.5(c), it isspecially stated that it was noted and will becomplied accordingly. Condition No.5(a) required thatthe tenement in the constructed building would beallotted as per the list certified by the Board. Theplanning shall be preferably done with built-up areaof each tenement ranging from 250 to 300 sq.ft.,minimum area being 180 sq.ft. It further providedthat the percentage of the surplus area provided inthe Third Schedule of the MHAD Act will be worked outand such tenements will be made available to the Boardat the cost of Rs.235/- per sq.ft. Now as againstthis condition, the architects of respondent No.5 hadmentioned that since the built-up area of the existingbuilding is more than 2 FSI and all existing tenementswill be rehoused, there is only one room surplus.What is material to note is that as per the chartenclosed with that very letter, except the occupant ofthe ground floor, i.e. one Govind Laxman Mirgal(mentioned as 'Gavi' at another place), none of theother occupants of the three floors or the attic hadmore than 30 sq.m. area. Thus they would have beenentitled to an area of 250 to 300 sq.ft., the minimumbeing 180 sq.ft., and this condition was accepted bythe respondent No.5. He has however stated, aspointed out above, that only one room would be surplusif the building was constructed as per thoseconditions.

75. It is an undisputed fact that the petitionerwas a tenant on the third floor of this building,which came to be demolished in 1979. As pointed outabove, her name figures in the list of tenantsenclosed with the registered conveyance dated 6th June1994 under which the respondent No.5 purchased thisproperty from the predecessor in title Smt.KalavatiDesai. Her name also figures in the list enclosedwith the letter dated 6th September 1994 sent by thearchitects of the respondent No.5 to the respondentNo.3 accepting the redevelopment of the property asper the Letter of Intent dated 19th November 1992 sentby the Board to his predecessor in title. Thereafterher name figures once again in the final list oftenants jointly prepared by respondent No.5 andrespondent No.3 which is enclosed with the affidavitof respondent No.5 dated 23rd September 1994. Notonly that, but her name figures in the list ofpromoter members of the proposed Prabhat CooperativeHousing Society and which list was forwarded by thearchitects of respondent No.5 to the respondent No.3after the building was constructed along with hisletter dated 24th January 1996 seeking an occupationcertificate upto 4th floor. Besides, it is materialto note that the respondent No.5 has given indemnity /affidavits dated 8th August 1994 stating that all theconditions of Letter of Intent dated 19th November1992 will be fulfilled and that unless arrangementsare made to occupy all the occupiers from the oldexisting buildings into the proposed new building, therespondent No.5 will not approach the MunicipalCorporation for occupation certificate. Thepetitioner has also annexed to the petition the noticeissued to her under section 77(b) of the MHAD Act on25th July 1978 to vacate the premises and thecertificate given by respondent No.3 later on in theyear 1983 that she was a tenant of the erstwhilebuilding which was subsequently demolished. Thusthere can be no doubt that the petitioner was a tenant/ occupant of this building until it was demolished.

76. Inasmuch as the building was demolished forreconstruction and rehousing the tenants of thedilapidated building, the petitioner like all othertenants had a equal right to come back to the buildingwhen reconstructed. She was provided with analternative transit accommodation for that and anissue is made that subsequently she was not stayingover there but at some other place. Section 94(5) ofthe MHAD Act, as it existed earlier, and section 94(5)after it amendment in 1998, both make it clear thatevery occupier of such demolished buildings shall havea right to get an accommodation in the new building'whether or not he accepts temporary accommodation'.Besides, transit camp is not something where one isexpected to stay for long nor are these accommodationscreated for a very long stay. It is therefore quitepossible that the occupant may feel dissatisfied withsuch transit accommodation and after waiting for goodtime, may make his own alternative arrangement. Theabove section also therefore makes it very clear thatwhether or not a dishoused person stays in a transitcamp, he shall have the right to get accommodation inthe new building. In the instant case, the respondentNo.5, who took up the responsibility of reconstructionunder the NOC issued by respondent No.3 dated 1stOctober 1994, had entered into a prior agreement withher on 8th August 1994 to provide a flat on ownershipbasis of 256 sq.ft. on 5th floor being Flat No.10 ofthe new building. The petitioner had agreed to paythe proportionate cost and the tenancy was to besurrendered as soon as the possession of the flat washanded over and when it was ready, i.e. when it wasready for occupation. As far as execution of thisagreement is concerned, there is no dispute amongstthe parties. It is a contention of the petitionerthat thereafter she entered into another agreementwith respondent No.5 on 12th January 1995. Thisagreement stated that she was desirous of acquiring anadditional space of 200 sq.ft. and that therespondent No.5 had agreed to give her 300 sq.ft.area free of cost and that she would pay for this 200sq.ft. It is her case that in clause 9 of thisagreement, the flat was mentioned as one on the 6thfloor though number thereof was not mentioned. It isher further case that she made a payment ofRs.20,000/- by two pay orders of Rs.10,000/- each inJanuary and May 1996, yet she was not put inpossession of the flat. The complaints were lodgedwith the area police station. The concerned policestation wrote letters to respondents Nos.1 to 3, butthey were without any effect. She was advised to filea suit initially for specific performance of theagreement of 12th January 1995. It is the case of thepetitioner that although she signed the agreement forthe flat and made the payment, she was not in aposition to attend the matter very regularly. Shefiled the said suit against respondents Nos.5 and 7and took out a notice of motion therein and appliedfor an injunction that the said flat No.11 on the 6thfloor be not parted with or disposed of. Shecorresponded with respondents Nos.1 to 3 in April1999, but that was also without any effect.Thereafter she has filed this writ petition on 21stJune 1999 and prayed for cancellation of the NOC dated1st October 1994 issued by respondent No.3 and theI.O.D. dated 21st January 1995 issued by respondentNo.4. After filing of this writ petition, shewithdrew the suit in the City Civil Court on 24th June1994. The various motions taken out by her in thepresent petition and the orders passed therein arealso mentioned.

77. Dereliction of responsibility by RespondentsNos.1 to 3.From what is narrated above as also from whathas come on record, it is clear that there was acomplete dereliction of responsibility on the part ofrespondents Nos.1 to 3. The entire reconstruction ofthe dilapidated building was under the scheme ofChapter VIII of the MHAD Act. It is only becauserespondents Nos.1 to 3 were not in a position to takeup the construction on their own that it was entrustedto the landlord respondent No.5 under section 79(2)(a)of the said Act as an agency recognised for thispurpose by the Board. However, as stated under thesaid section, it had to be under the supervision ofthe Board and on the terms and conditions agreedbetween the parties. After the respondent No.5 agreedto various conditions in the Letter of Intent dated19th November 1992 that he was issued the NOC on 1stOctober 1994. As shown from the chart enclosedearlier, except for the occupant on the ground floor,none of the tenements was over 30 sq.m., i.e. over300 sq.ft. All of them were promised to beaccommodated in the new building and specificundertakings were given in that behalf. As far as thepetitioner is concerned, an agreement was entered intowith her in the year 1994 for flat No.10 on the 5thfloor and that was passed over to respondents Nos.1 to3. Under Condition No.5(a) of the Letter of Intent,the flats were to be of the size of 250 to 300 sq.ft.It was also provided that if there was any surplus,that was to be made available to the Housing Board tobe utilised for accommodating the occupants of thoseceased buildings which cannot be reconstructed beforeoccupation certificate is obtained from the MunicipalCorporation at the rate of Rs.235/- per sq. ft.However, the respondents Nos.1 to 3 have not explainedin their affidavit at all as to whether they saw to itthat the plans were as per the NOC given in October1994. Similarly when the clearance from respondentsNos.1 to 3 was sought while obtaining the occupationcertificate in November 1996 also, it is not clarifiedas to what scrutiny was carried out by respondentsNos.1 to 3, particularly with respect to theconstruction of the building and reoccupation of theformer allottees. In fact, what is most disturbing isthat after the complaints from the concerned policestation on 30th July 1997 and 19th August 1997, theDivisional Executive Engineer visited the site andreported to the higher authorities that he did notfind the names of any of the old tenants who wereexpected to be rehoused in the newly constructedbuilding. In his letter dated 1st September 1997, hepointed out that the names of some others includingBhansalis appeared on different flats. He reported atthat time that all the tenements in the said buildingwere not occupied. This was on the basis ofinspection done on 4th September 1997 and 11thSeptember 1997. Surely that was an occasion for therespondents Nos.1 to 3 to wake up. They had aresponsibility to the ousted occupants. It wasexpected of them to move into the matter immediatelyand call upon respondent No.5 to explain as to whathad happened to the persons who were expected to berehoused, for whom all the documents were entered intoand whose names also figured as the members of theproposed housing society as forwarded by his architectas recently as in November 1996 to seek clearance foroccupation certificate upto 4th floor. It is mostshocking, to say the least, that respondent Nos.3 madeonly a perfunctory inquiry and informed the police on4-12-1997 that the concerned Municipal Engineer isasked not to grant further occupation certificate tothe newly constructed building until intimation. Itis relevant to note that in the meanwhile theoccupation certificate for the first four floors hadalready been issued by respondent No.4 as per theearlier request of respondent No.5 to respondentsNos.1 to 3. Surely, the respondents Nos.1 to 3 couldhave moved into the matter immediately if there wasany genuine intention to take steps. When it wasreported by their Divisional Engineer that buildingwas not occupied though the name plates of some thirdpersons appeared, surely they could have filed suitand taken an injunction as also sought appointment ofreceiver inasmuch as the entire occupation was inbreach of what was agreed with respondents Nos.1 to 3.It is obvious that respondents Nos.1 to 3 did not wantto do anything of the kind. They should have done thechecking at the time of giving clearance for theoccupation certificate and, in any case, when thereport of the Division Engineer was available, theyought to have taken protective steps. There is acomplete failure on their part in discharging theresponsibility.

78. The above narration also establishes that thePetitioner did enter into the necessary agreement withRespondent No.5 on 8th of August 1994 wherein sheagreed to pay proportionate costs of construction andRespondent No.5 agreed to hand over possession of flatNo.10 on the 5th floor admeasuring 256 sq.ft to her onownership basis. It is also established thatsubsequently another agreement was also entered intobetween two of them on 12th January 1995 whereinRespondent No.5 agreed to give a flat of 500 sq.ft.built up area, 300 sq.ft. out of this, was to be freeof costs and for 200 sq.ft. she had to payproportionately. The execution of such a document isnot disputed. But what is claimed by Respondent No.5is that the flat number and the floor were kept blankin Clause No.9 and that the Petitioner has inserted6th floor over there. Now, in this behalf, it isrelevant to note that Respondent No.5 accepts that hereceived two Pay Orders of Rs.10,000/- each from thePetitioner in January and May 1996. But it is hiscase that the said amount was taken back in cash andthat the Petitioner was insisting on Rs.50,000/- or sofor surrendering the tenancy and because of thethreats given by her that this document was enteredinto. Now, what is important to note is that thePetitioner made the assertion of having executed thisagreement in January 1995 in Suit No.812 of 1997 filedin February 1997 and also in Notice of Motion No.1544of 1997 taken out therein on 21st March 1997. It isvery interesting to note that as far as RespondentNo.5 is concerned, who was Defendant No.1 in thatSuit, filed his affidavit-in-reply on 14th of January1999 i.e. nearly two years after the above assertionwas made. It is no where pointed out as to whetherany complaint was made to Police when such a documentwas entered into under duress way back in the year1995. It is also not pointed out that as to whetherany complaint was lodged once again when the moneypaid by Pay Order in January and May 1996 wasallegedly taken back. Respondent No.5 is allegingthat the Petitioner was asking for money to the tuneof Rs.50,000/- and more for surrendering her tenancyand it is he who told her that, that could not be doneunder the law. Now, what is interesting to note isthat when two of the erstwhile tenants viz. Mr.Shahand Mr.Latke occupying room Nos.4 and 2 on the 1stfloor, surrendered their tenancies. Respondent No.5wrote to Respondent Nos.1, 2 and 3 informing them thatthey had surrendered their tenancy and that he hadbrought in his mother Vinodini Dalal as the tenant intheir place. In fact, he has made an affidavit tothat effect on 23rd September 1994 and handed it overto the Housing Board. Thus, Respondent No.5 knows asto what is to be done when anybody wants to surrenderhis tenancy. In any case, there is nothing on recordto show or any intimation to Respondent Nos.1, 2 and 3that any of the other tenants surrendered theirtenancies. There is no explanation regarding theother erstwhile tenants nor has Respondence No.5placed any document showing surrender of tenancy byother tenants to him. As far as the Petitioner isconcerned, she had undoubtedly not surrendering hertenancy. That being so, she was entitled to theaccommodation under the earlier agreement of 1994.Similar agreements are entered into with all othererstwhile tenants by Respondent No.5 and they are onthe File of Respondent Nos.1, 2 and 3.

79. As far as the various tenements in thebuilding are concerned, it is not disputed that noneof the original tenants has been brought back thereinand totally new comers are now occupying the tenementsand six of them are with the Bhansali family. Thereis no dispute about these facts between RespondentNo.5 and Respondent No.7 either. It is also notdisputed by them that Bhansalis have been inductedinto these flats by Respondent No.5 after takingadditional consideration for the same and afterentering into the agreements with them. Similarly thePetitioner has claimed that an agreement was enteredinto with her by Respondent No.5 for additional spaceof 200 sq.ft. and for which she paid Rs.20,000/-. Inthe facts, as stated above, there is no reason todisbelieve her version of the transaction. Hence, ifthe other agreements are held to have any legalvalidity for claiming any accommodation, then thisagreement of 1995 for 200 sq.ft. will also have equalvalidity.

80. A cross suit between Respondent No.5 andRespondent No.7 in the City Civil Court at Mumbai i.e.Suit No.5920 of 1999 and the allegations made by themagainst each other have brought about much of thetruth in the assertions made by the Petitioner. Asnarrated earlier, this suit was filed on 17th February1998 by Respondent No.5 against Respondent No.7regarding his alleged encroachment on the 7th floorand to restrain him from the same. In Para-10 of thisPlaint, it was contended by Respondent No.5 that onthe 7th floor he had made the commitment to give aflat to one Mr.Gada. A Commissioner was appointed andhe reiterated that the work on the 7th floor wasincomplete at that point of time. Respondent No.7 hasstated with respect to this suit in the present WritPetition that he was not concerned with the 7th floorand, therefore, he did not contest that suit. Thatsuit was ultimately decreed on 24th January 2001. Inthe meanwhile, Respondent No.5 had given anundertaking to that Court to maintain the status quoas per the report of the Commissioner. Thus, he wasduty bound to not to construct anything beyond 6thfloor during the pendency of that suit.

81. In this connection, it is stated byRespondent No.5 that he had given possession of thesaid six flats to Respondent No.7 only for carryingout carpentry work and that the legal possession hadnot been passed over but Respondent No.7 continued toencroach and trespass on to those flats. He isclaiming an amount of Rs.15 Lacs from Respondent No.7as a part of the remaining unpaid consideration. Asagainst that, Respondent No.7 in his reply dated19.9.2001 to Notice of Motion No.262 of 2001 in thisWrit Petition claimed that Respondent No.5 informedhim that some six persons had surrendered theirtenancy rights and he had, therefore, agreed to givetenancy in respect of those rooms. Not only this buthe informed Respondent No.7 that he will accommodatethe incoming parties in place of these tenants andwill get necessary corrections done in the tenant listwhich was with Respondent No.1. It is claimed that onthis representation Respondent No.7 paid large amountsin cash to Respondent No.5 and thereafter when thebuilding was almost ready, executed six agreements ofsale with six persons of his family. Thus, it is thecase of Respondent No.7 that he made the payment forall these six flats and initially the names of his sixfamily members were entered into as tenants byRespondent No.5 and later on, these agreements wereexecuted. As far as room No.10 on the 5th floor isconcerned, the agreement is said to have been enteredinto by Kamlesh, son of Respondent No.7. Theseagreements are supposed to have been entered into inAugust 1996. Now, what is important to note is thatas per the directions given by this Court, anaffidavit was filed by Respondent No.5 on 23rd July2001. In this affidavit, he mentioned that flat No.10on the 5th floor was in the name of Peerchand Bhansalii.e. Respondent No.7 and not Kamlesh Bhansali asclaimed by Respondent No.7. Thus, there is acontradiction between the two. But, in any case, itis also relevant that there is no denial of the aboveassertion of Respondent No.7 that on receipt of hugecash, six tenancies were created in favour ofBhansalis in place of earlier tenants who hadallegedly surrendered their tenancies and subsequentlyflats were allotted to them in lieu thereof. Again,it is relevant to note here that Respondent No.7 isclaiming that flat No.10 was allotted to his sonKamlesh on the footing that the earlier tenant hadsurrendered her tenancy rights. He has, however, notcared to inquire or to take inspection of or to findout as to whether there was any such document given bythe Petitioner that she was surrendering her tenancyin the erstwhile tenement No.10. Respondent No.5 wasvery much aware that he was to inform to the HousingBoard any time when any such tenancy is surrendered.This is what he did at the time of surrender oftenancy by Mr.Shah and Mr.Latke. This is also becausethere is a valuable right given to the Housing Boardunder the Agreement to purchase these tenements at therate of Rs.235/sq.ft so that the persons in transitcamps from other demolished buildings could beaccommodated. It is obvious that he hasintentionally not discloed these agreements torespondents Nos.1 to 3. On the other hand, herepresented to them through his architects in November1996 that a society of old tenants was being formedand they were being rehabilitated.

82. It is material to note that on 22nd November1999 when the petition reached for admission aDivision Bench directed that one tenement be keptvacant for the Petitioner. That injunction has beenrunning thereafter. Again in July 2000, on therepresentation of Respondent No.5, a Division Benchdirected that one flat on the 8th floor be keptreserved for the Petitioner. Now, as narrated above,Respondent No.5 had given an undertaking in City CivilCourt Suit No.825 of 1998 that he will not proceedwith further construction from 7th floor onwards andthat the suit was decreed only on 24th January 2001.Similarly in another Suit No.5920 of 1999 filed byRespondent No.5 against Respondent No.4, an injunctionwas granted against Respondent No.4 not to proceedwith the notice under Section 354-A of the BMC Act todemolish the work on the 7th floor. That was also onthe basis of an undertaking that he will not carry onany construction in the suit premises. Thatundertaking was given on 28th September 1999 and thesuit is still pending. Respondent No.5 was expectedto disclose these facts to this Court. These weresuits against Respondent No.7 and Respondent No.4.The Petitioner could not be aware of them. Theinformation about both these proceedings have comebefore the Court only in view of the reply filed byRespondent No.7. Respondent No.4 also did not care toplace the information about the suit against thembefore this Court. It has, however, been stated ontheir behalf that the plans which are approved forthis building are only for six upper floors plus partof the 7th floor. If Respondent No.5 had only shownregards for the orders passed by the Court from timeto time, he could have accommodated the Petitioner onthe partly permissible construction on the 7th floorsince the undertaking not to construct on the 7thfloor was running until the decree in Suit No.525 of1999 passed on 24th January 2001. Respondent No.5,however, thought that he can continue with hisimpunity and he had already entered into an agreementwith one Mr.Gada with respect to the 7th floor underthe Deed of Confirmation of 14th January 2001 duringthe pendency of the present proceedings. Execution ofthis Deed of Confirmation is clearly in breach of theorder passed by this Court on 22nd of November 1999.It also shows that he had no regards for the fair playor the orders of the Court or for truth.

83. It has also come on record that whereasRespondent No.4 was contending that permission toconstruct was only upto 6th floor and a part on 7thfloor, Respondent No.5 and his Architect KamleshKothari were insisting that the permission granted wasalso for the 8th floor. He, however, refused toproduce NOC given by the BMC for the inspection of theMunicipal officers alleging that the original NOC,when produced to the Municipal Officers, will bedestroyed or tampered with. This is the level towhich Respondent No.5 and his Architect Mr.KamleshKothari have gone. However, what is again interestingto observe is that the authorities of the MunicipalCorporation have not taken any steps whatsoever to getthe injunction passed against them vacated, nor havethey taken any steps so far against the ArchitectKamlesh Kothari.

84. As to non-joinder of parties :

Mr.Abhyankar, learned Counsel appearing forRespondent No.7, has contended that Kamlesh Bhansali,son of Respondent No.7 ought to have been joined as aRespondent in the present petition since according tohis agreement flat No.10 on 5th floor was purchased byKamlesh Bhansali from Respondent No.5. As againstthat, Ms.Purohit, learned Counsel appearing for thePetitioner, pointed out that as per the list oftenants/occupants submitted by Respondent No.5, it isPeerchand Bhansali i.e. Respondent No.7 who was inpossession of this flat No.10 on the 5th floor.

Mr.Abhyankar had further submitted that this and otherflats of the Bhansalis were mortgaged to Indian Bankand also that subsequently the property had beenauctioned and purchased by Meena Impex Company.Inasmuch as the Petitioner had submitted that she hadan interest in one flat and any other flat will do, inhis submission, the other occupants ought to have beenalso joined. Now, as pointed out above, RespondentNo.7-Peerchand Bhansali, in his own affidavit, hadstated that he paid huge amounts in cash and got thetenancy created in the names of his family members.It is also his case that accordingly the agreementswere entered into later on. Thus, in his ownsubmission, flat No.10 is in the name of Kamlesh onlyin view of the internal adjustment amongst theBhansali family members. Respondent No.7 has notpointed out in any manner that this Kamlesh Bhansalihad purchased this flat No.10 from his own funds. Inour view, in view of the affidavit of Respondent No.7himself joining of Kamlesh Bhansali is not at allnecessary. That apart, his case is that the Bhansalishave purchased particular six flats in view of thesurrender of tenancies by erstwhile tenants. Neitherhe nor Respondent No.5 have shown any documents ofsurrender of tenancy by the Petitioner since that isthe foundation of their claim to oust the Petitioner.Once that foundation is disturbed, they have nofurther case to fall back. Whether the Bhansalis hadany internal arrangement from amongst their familymembers is totally irrelevant for the Petitioner.Similarly, a charge or mortgage created by Bhansalison the flats will not bind the Petitioner and hence,the Indian Bank is not necessary as a partyRespondent. The Petitioner is claiming a particularflat viz. flat No.10 by virtue of the agreement andhence, not joining other tenants cannot be fatal toher case. Similarly it is not necessary for her tojoin Meena Impex as the party Respondent. This isbecause she was never put into possession of the flatand she cannot be said to be in default of anycontribution, cost or payment of property tax toRespondent No.4. She cannot be made to suffer for thedefaults either of Respondent No.5 or of RespondentNo.6 and 7. In our view, none of these parties arenecessary to be joined.

85. As to alternative remedy :

85.It was submitted by Miss Sidhwa, learnedCounsel appearing for Respondent No.5, andMr.Abhyankar for Respondent No.7, that the agreementof August 1994 and the one of January 1995 wereessentially a matter of contract between thePetitioner and Respondent No.5. The Petitioner was atenant of the property and if that was so, her remedywas to approach the Court of Small Causes under theBombay Rent Act. It was submitted that, in any case,the Petitioner had availed of another remedy byapproaching the City Civil Court and withoutexhausting that she had filed the present WritPetition. Miss Sidhwa had relied upon the judgment ofthe Apex Court in the case of State of HimachalPradesh vs. Raja Mahendra Pal (supra) in this behalf.But it is material to note that this very judgmentlays down that although powers under Article 226 ofthe Constitution are not to be invoked forenforceability of mere contractual rights when thereis an alternative remedy, the said judgment makes itclear that this proposition does not debar the Courtfrom granting the appropriate relief to a citizenunder peculiar and special facts notwithstandingexistence of an alternative efficacious remedy. Ithas also been held by the Apex Court time and againthat the rule of exhaustion of an alternative remedyis a matter of discretion for the Court and not a ruleof exclusive. We cannot therefore reject thispetition on such a ground.

86. On delay and laches :

It was submitted by Mr.Abhyankar, learnedCounsel for Respondent No.7, that the petitiondeserves to be dismissed also on the ground of delayand laches. He had submitted that under the agreementof January 1995, possession was to be handed over inDecember 1995 and, therefore, the Petitioner had acause of action in January 1996. Now, what ismaterial to note is that in November 1996, theArchitects of Respondent No.5 have informed RespondentNo.3 that the building was ready and had soughtclearance for occupation certificate. Along with thatletter, they had enclosed the Minutes of the firstmeeting of the members of the proposed Co-operativeHousing Society held on 30th October 1995. ThePetitioner expected an intimation from RespondentNos.1, 2 and 3, but nothing was forthcoming. In fact,in January and May of 1996, she made the payment ofRs.20,000/- for an additional 200 sq.ft. area by PayOrder. Ultimately when she learnt that RespondentNo.7 had been permitted to enter and occupy the flaton the 6th floor, which was to be allotted to her byvirtue of the agreement of January 1995 that she filedthe suit for specific performance in February 1997.In 1997 there were complaints to the Police and sincethe suit was likely to take a long time she addressedletters to Respondent Nos.1, 2 and 3 to takeappropriate steps in April and May 1999. Since noeffective steps were taken by Respondent Nos.1, 2 and3, she filed the present petition on 21st of June 1999to seek cancellation of the NOC dated 1.10.1994 issuedto Respondent No.5 and to seek the possession of thetenement in the newly constructed building, to whichshe was entitled. It has come on record that thehusband of the Petitioner is a heart patient and it isas per the legal advice received from time to timethat she took the steps. In fact, it was theresponsibility of Respondent Nos.1, 2 and 3 tosafeguard the interest of the erstwhile tenants. Theyhave practically taken no steps whatsoever in thisbehalf and the Petitioner was constrained to move oneauthority after another. Mr.Abhyankar had relied upona judgment of the Apex Court in the case ofTrilokchand vs. H.B. Munshi (supra) and particularlyPara-11 thereof which has been quoted earlier. Theparagraph makes it amply clear that when it comes todelay it is a question of discretion of the Court fromcase to case and as to how the delay arose. In thefacts of the present case, as narrated above, wecannot take a view that this petition suffers on theground of delay or laches.

87. Effect of withdrawal of earlier Suit andplea of abandonment :

It was submitted on behalf of RespondentNos.5 and 7 that the earlier Suit No.812 of 1997 waswithdrawn unconditionally without seeking liberty toinstitute fresh proceedings. It was, therefore,submitted that the present petition would be barred onthe basis of principles analogous to Order XXIII Rule1(4) of the Code of Civil Procedure. Mr.Abhyankar hadrelied upon the observations of the Apex Court in thecase of Sarbuja Transport (supra) wherein the Courthad observed that the principle underlying Order XXIIIRule 1 was founded on public policy, though it was notthe same as rule of res judicata. In that matter, theCourt had deprecated the practice of withdrawing writpetitions and then filing of suits. It was submittedthat, in the present case, it was the other way round.

88. It was submitted that initially thePetitioner had filed Suit No.812 of 1997 forenforcement and specific performance of the agreementof August 1995. Then the Petitioner had pressed foran order in this writ petition that one flat be keptvacant. Thereafter an order was passed that a flat onthe 8th floor be kept vacant and now, she wasinsisting on enforcement of the agreement of 1994.

This shifting and change of stand was not permissible.Now, what is material to note is that whereas theprayer in the earlier suit was for specificperformance of agreement of August 1995 entered intowith Respondent No.5, in the present writ petition,the prayer is to cancel the No Objection Certificatedated 1.10.1994 due to the breaches thereof committedby Respondent No.5. It is also prayed that the I.O.D.dated 25.1.1995 issued by Respondent No.4 becancelled. The Petitioner has, of course, prayed inprayer clause (b) that she be allotted a flat in thenewly constructed building. Besides, when this writpetition was filed on 21st June 1999, specificstatement was made therein in Para-16 that thePetitioner was ready and willing to withdraw the saidsuit pending in the City Civil Court and the suit wasaccordingly withdrawn on 24th June 1999. It is not asituation where one proceeding is withdrawnunconditionally and then another proceeding isinstituted. During the pendency of the first suit,the writ petition was filed, and after disclosing tothis Court about the pendency of the suit, the samewas withdrawn. It is true that there is no specificrecording in the order passed by the City Civil Courtthat the suit was being withdrawn with a liberty toproceed with the writ petition which was filed in themeanwhile. However, what one has to bare in mind isthe rationale behind the principle namely that oneshould not resort to forum shopping and further thatwhile withdrawing one proceeding and institutinganother one subsequently, it must be with thepermission of the Court. In the instant case, in thewrit petition, a statement has been made that the suitwill be withdrawn. That statement is made on oath tothe Court and it is worded in the form of anundertaking. In our view, this kind of a situationcannot be said to be hit by the provisions of OrderXXIII Rule 1(4) of the C.P.C.

89. Besides, it is also material to note that theprovision of Order XXI Rule 1(4) precludes institutionof a fresh suit in respect of the subject matter ofthe withdrawn suit. In the case of Ajit Chopra vs.Sadhu Ram reported in : AIR2000SC212 , theApex Court was concerned with somewhat similarsituation in the context of Section 47 of the CivilProcedure Code before its amendment in 1976. Thesection lays down that questions arising between theparties to the suit have to be determined by a Courtexecuting the decree and not by a separate suit. Inthat matter, a judgment and decree was passed in aprevious suit on the basis of lease under the RentControl Act, by which it was held that the Respondentwas a tenant and he was required to vacate thepremises by a particular date. The Apex Court heldthat such a judgment and decree would not bar a freshsuit for recovery of possession from the tenant on thebasis of title to the property. The Court observed :

'It is true that the Appellant could have executed thedecree passed in the said suit. .... Still there isno bar under the Rent Act or under the Code of CivilProcedure for filing a suit for recovery of possessionfrom the tenant, who had failed to deliver thepossession on the basis of the decree passed againsthim.'

In the present matter also whereas the earliersuit was filed for the specific performance of theagreement of sale, this writ petition has been filedon the basis of the breaches of the No ObjectionCertificate issued to Respondent No.5, which is awider relief. In our view, having first made thedisclosure of pendency of the suit to this Court, whenthe same is withdrawn, proceeding with the writpetition cannot be faulted.

90. As to Non-enforceability of private contractin writ :

Mr.Abhyankar had submitted that the twoagreements and particularly the second one of January1995 was a private contract between Respondent No.5and the Petitioner and the writ petition could not beallowed for enforcement thereof. He had relied upon ajudgment of the Apex Court in the case of DivisionalForest Officer vs. Bishwanath Tea Company (supra)inthis behalf. In that matter, the Appellant had soughtto recover full royalty for the timber sold or removedfor usage unconnected with exploitation of the grantof the lease. The Respondent had claimed the right toremove the timber without any such obligation on thebasis of a term of the lease. That term was a merereproduction of a provision of Assam Land and Revenueand Local Rates Regulations. A writ filed by theRespondent was entertained by the Assam and NagalandHigh Court. The Apex Court allowed the appeal andheld that a statutory provision, if incorporated in alease or contract, will lose its statutory characterand writ would not lie but a suit will have to befiled for enforcing the term of the contract. In thepresent case, we are not faced with a similarsituation. The Petitioner is not merely seeking aspecific performance of the contract. In the instantcase, it is a complete statutory scheme for theprotection of the tenants of the dilapidated buildingsand there is a control and supervision of RespondentNos.1, 2 and 3 throughout over the execution of thescheme. The building is to be reconstructed on theterms and conditions contained in the No ObjectionCertificate. After the building is ready also aclearance is to be obtained from Respondent No.3 forreceiving the occupation certificate from theMunicipal Corporation. It is only after beingsatisfied that all the tenants of the erstwhilebuilding are being housed in the building that thisoccupation certificate is to be issued. Thus, thereis a control and supervision of Respondent No.3 allthroughout. That is clearly provided in Section 79(1)and 79(2)(a) of the MHAD Act. As these provisions laydown, it is only on terms and conditions as theauthority may deem fit that the execution of thescheme can be handed over to any such other agency butthat is also 'under its own supervision' as Section 79(2)(a) provides. Thus, the agreement of 1994 is apart of this statutory scheme and is nothing but astatutory contract. If there is any breach on thepart of an agent appointed under the said section tocarry out his obligations and also on the part ofRespondent Nos.1, 2 and 3, a writ petition cancertainly lie. In the case of Common Cause, aRegistered Society vs. Union of India reported in : [1999]3SCR1279 , the Apex Courtobserved as follows:-

' 43. ....... Initially the SupremeCourt was of the opinion that whilethe decision making process foraward of contract would be amenableto judicial review under Art.226 or32 of the Constitution, a breach ofa contractual obligation arisingout of a contract already executedwould not be so enforceable undersuch jurisdiction and the remedy insuch cases would lie by way of acivil suit for damages. (SeeRadhakrishna Agarwal v. State ofBihar : [1977]3SCR249 . Butthe Court changed its opinion insubsequent decisions and held thateven arbitrary and unreasonabledecisions of the Governmentauthorities while acting inpursuance of contract would also beamendable to writ jurisdiction.This principle was laid down inGujarat State Financial Corporationv. Lotus Hotels Pvt.Ltd. : AIR1983SC848 . ThisCourt even went to the extent ofsaying that the terms of contractcannot be altered in the garb ofthe duty to act fairly. (SeeAssistant Excise Commissioner v.Issac Peter : [1994]2SCR67 . '

In the present case, we are concerned with the failureof the agent of the state in acting in accordance withthe statutory contract, and hence necessary directionsare sought. The writ jurisdiction will certainly beavailable for this purpose on the same basis.

91. It was also submitted on behalf of RespondentNos.5 and 7 that there are disputed questions offacts, particularly with respect to the title and theycould not be satisfactorily gone into in the writpetition. Reliance was placed in this behalf on thejudgment of the Apex Court in the case of State ofRajasthan vs. Bhavani Sing (supra). As narratedearlier, in the present case, the facts are veryclear. The Petitioner was a tenant of a dilapidatedbuilding. That building was pulled down by RespondentNos.1, 2 and 3 in the year 1979. Thereafter the workof reconstruction was handed over to Respondent No.5under Section 79(2)(a) of the Act. That was on theterms and conditions which provided that the newlyconstructed tenements will be of a size between 250and 300 sq.ft. and all tenants will be re-housedtherein. Respondent No.5 gave various undertakings tocomply with the terms and conditions and thereaftertook over the construction. It was also provided inthe letter of intent that if there was any excessspace available Respondent No.3 had the right topurchase the same at the rate of Rs.235/- per sq.ftfor housing the other dis-housed people. ThePetitioner entered into the necessary agreement inAugust 1994. She had, therefore, undoubtedly theright to go back into the reconstructed tenement. Shewas also joined as a promoter/member in the proposedCo-operative Housing Society and those papers wereforwarded by Respondent No.5 to Respondent No.3 inNovember 1996. Thereafter on obtaining the clearancefrom Respondent No.3, the part occupation certificatewas obtained from Respondent No.4. In the meanwhileand later on, agreements have been entered into withpersons like Respondent No.7. No document ofrelinquishment of tenancy signed by the Petitioner hascome forward. In fact, she has been agitating forgoing into this reconstructed building. Subsequent toentering into the above agreement, another agreementfor additional space of 200 sq.ft. had been enteredinto in January 1995. The tenement earmarked for thePetitioner i.e. flat No.10 on the 5th floor has beenhanded over to Respondent No.7 and he accepts that hehas taken it on the footing that the previous tenanthas surrendered his tenancy. This is the entire basisof his occupation. He did not make any enquiry withRespondent Nos.1, 2 and 3 with respect torelinquishment of any such tenancy. Thus, in ourview, there are no disputed questions of facts andcertainly a writ court can look into the grievancescanvassed by the Petitioner.

92. The above narration shows that a beneficialstatutory scheme has been misused by an unscrupulouslandlord either with connivance or with theunderstanding of the public officers concerned.Respondent Nos.1, 2 and 3 have completely failed todischarge their responsibility of supervision. Theywere expected to see to it that the construction ofeach tenement was as per the letter of intent namelyof 250 to 300 sq.ft. per tenement. What appears isthat larger tenements of 450 sq.ft. or so have beenconstructed. If they were to supervise properly theywould have got some surplus space which could havebeen utilised for tenants of other dilapidatedbuildings. In any case, it was their responsibilityto see to it that the erstwhile tenants are put backinto the building when it is ready. No proper enquiryseems to have been made in this behalf when theapplication for occupation certificate was tenderedafter the building became ready in November 1996.Pursuant to the Police complaints also it was reportedby the Division Executive Engineer that the names ofsome other persons were seen on those flats thoughapparently nobody was occupying them. The officers ofRespondent No.3 could have moved into the matterappropriately even by filing a suit, if necessary, yetthey did nothing of the sort. Obviously higherofficers of respondent No.3 and particularly the ChiefOfficer of respondent No.3 who wrote the letter dated4th December 1997 to the police have connived at allthis.

93. The officers of Respondent No.4 are equallyresponsible in this dereliction of duty. They havetaken no steps to get the injunction vacated whengranted by the City Civil Court nor have they takenany action when flats were amalgamated including thosefrom different floors. It is difficult to accept thatthese actions on the part of the officers ofRespondent Nos.1, 2, 3 and 4 are very innocentactions. Scanty affidavits were filed on behalf ofRespondent Nos.3 and 4 leaving everything to be doneby the Court. Fortunately, for the Petitioner, theFile containing relevant papers was relied upon byrespondent No.3 and offered for inspection whichdisclosed deception played by Respondent No.5 almostamounting to fraud. And fraud avoids even judicialacts 'ecclesiastical or temporal' as observed by ChiefJustice Edward Coke of England three centuries ago andas quoted by the Apex Court in S.P. ChengallvarayaNaidu v. Jagannath : AIR1994SC853 . In the presentcase, we are concerned with the acts of an agent ofthe State with whom the officers of the concernedpublic authorities have obviously connived. Not asingle occupant of the erstwhile dilapidated buildingwas rehoused when the building was reconstructed.This was on the background of agreements, solemnundertakings and letters from the landlord that allthe erstwhile occupants shall be and were beingrehoused. There was a report of the DivisionalExecutive Engineer on record that none of theerstwhile occupants were being rehoused and yet noeffective steps were taken by respondent No.3. Thoughthe respondent No.3 owed a duty to rehouse the oldtenants, the respondent No.3 moved into the matteronly after the police complaint. Inspite of thereport of the Divisional Engineer no effective stepswere taken to contact the erstwhile tenants exceptinquiry at the transit camp. It is quite possiblethat after long 18 years, the erstwhile tenants hadgot tired and moved out to some better places. Butrecently in November 1996 the landlord had submittedpapers with signatures of old tenants to form thesociety in new building. No inquiry seems to havebeen made with him, nor any assistance sought frompolice with whom the complaint was lodged. Therespondent No.3 had every power to buy these tenementsat the rate of Rs.235/- per sq.ft. for the benefitand at the cost dishoused persons of other buildingsand languishing in the transit camp. In fact that wasexpected of respondent No.3 under the Scheme. Thethen Chief Officer of respondent No.3 did nothing ofthe sort but for the sake of record only wrote to thepolice that he was asking B.M.C. not to grant furtheroccupation certificate which hardly meant anything. Alady of senior age seeking repossession of hertenement was made to move from authority to authorityand court to court. The landlord kept on floutingundertakings given to courts thinking clearly thatnothing will happen to him. And the officers ofrespondent Nos.1 to 4 remained at ease as silentspectators. On the top of it, this Court is beingtold by respondents Nos.5 to 7 not to act. Thepetitioner has alleged collusion between respondentNo.5 and 7 though they seem to have subsequentlyparted company. No assistance whatsoever is renderedby the public officers concerned in this matter. Wemake it clear that this does not mean any reflectionon the lawyers appearing in the present matter, but onthe officers instructing them. However, we cannot butobserve that the entire conduct of all the respondentsis disgusting to say the least. The dilapidatedbuilding was demolished as far back as in 1979. Theoccupants were sent to the transit camp. Nearly 17years thereafter the building is reconstructed in1996. None of the erstwhile tenants are rehoused andone, who is keen on going back, is rendered noassistance by the public officers. This is all in thename of a welfare scheme.

93. In the circumstances, we will have to allowthis petition. Prayer clauses (a) and (b) of thispetition seek cancellation of the NOC dated 1.10.1994and the IOD dated 25.10.1995 and a direction to complywith the terms and conditions coupled with a prayer toallot a newly constructed premises to the petitioner.Now, the building is already constructed and cancelligthe N.O.C. or I.O.D. is not desirable. However,appropriate remedial measures and directions can bepassed. As held by us, the Petitioner had a rightfulclaim to a tenement of 250 sq.ft. under the agreementof 8th August 1994 which can be enforced through thiswrit petition. As far as the agreement of 12thJanuary 1995 is concerned, it is for an additionalspace of 200 sq.ft. Such an additional space is notpermissible under the scheme, but that is notpermissible to any of the occupants. Respondent No.5has taken the amount of Rs.20,000/- from thePetitioner for this additional space. Subject to thedirections which we are passing hereinafter thePetitioner will have to be put in possession of flatNo.10 on the 5th floor even though it is in excess of250 sq.ft. and may be of around 450 sq.ft. Theofficers of Respondent Nos.3 and 4 will have toinspect the building and find out as to whether theflats have been constructed of the size of 250 to 300sq.ft. as under the letter of intent and NOC. In theevent they are flats of excess size, they will have todecide as to whether it is possible to split theexcess space and to make other flats of 250 to 300sq.ft. by joining the additional space of twoadjoining flats. They will also have to find out asto what happened to the other old tenants, whether anyintimation was sent to them either by officers ofRespondent No.3 or by Respondent No.5 and as towhether they have relinquished their tenancy. In theevent they have so relinquished, the 3rd Respondentwill have a right to take over such additional spacefrom Respondent No.5 and whoever are the occupants atthe rate of Rs.235/- sq.ft. as provided in theagreement or presently prevalent rate for sucharrangements by filing the necessary suit for thatpurpose. Since Respondent Nos.1, 2 and 3 areAuthorities and Board under the overall supervision ofthe State Government, we are of the view that theHousing Secretary of State of Maharashtra ought tohold an enquiry and find out as to why the then ChiefOfficer of Respondent No.3 did not take necessaryaction even at that stage as pointed out above whenthe Divisional Executive Engineer had reported afterthe Police complaints that name-plates of none of theoriginal tenants were seen on the premises and thatthe premises appeared not to have been occupied atthat time. The Chief Officer of Respondent No.3, whoreplied to the inquiry from the Police Department byhis letter dated 4.12.1997 along with the concernedofficers, if held responsible for dereliction of dutymust face the consequences.

94. The Municipal Commissioner of Greater Mumbaimust also thereafter hold an inquiry as to how noappropriate action has been taken in this matter todefend the suit properly and as to how theamalgamation of some of the flats on different floorshas been permitted or no action taken in that behalf.If he forms an opinion that what has been done isillegal, he must as well take action against those whoare responsible and also with respect to the premiseson the site. The Municipal Commissioner must alsoexamine as to what action can be taken against theArchitect Kamlesh Kothari if he is of the opinion thatthis Architect Kothari has fabricated the plans forproceeding with the construction on the 7th and 8thfloors.

95. We are of the view that Respondent No.5 didnot place full facts before the Court, particularlywith respect to the other suits when an order waspassed to keep one tenement vacant on the 8th floor.Prima facie his action appears deliberate and he mustas well face the consequences.

96. In the circumstances, we pass the followingorder:-

ORDER

(a)Respondent No.3 will take steps to find outas to whether the tenements constructed are in excessof 300 sq.ft., and if so, whether they can be splitand the excess space can be purchased by RespondentNo.3 at the rate of Rs.235/- sq.ft. (as per theletter of intent) or at the presently prevalent rateof Repair Board for such arrangements or whether theconstruction ought to be left as it is for validreasons and in that case on what terms andconsequences for respondent No.5 and othersresponsible for this situation.

(b)Respondent No.3 will examine the position andtake necessary steps including that of filing of asuit against Respondent No.5 and against all illegaloccupants to recover possession of the concernedpremises at the aforesaid rate with a view to allotthem to the tenants of the dilapidated buildingsstaying in transit camp. In that event it will beopen for the present occupants like respondent No.7 torecover the amounts paid by them (in excess) fromRespondent No.5, in accordance with law. In the eventthe respondent No.3 decides that such a course is notdesirable, he must record the reasons for the same andin that case ought to consider as to what action couldbe taken against respondent No.5 and othersresponsible for this situation.

(c)We direct the Secretary (Housing) State ofMaharashtra to look into the question of derelictionof duty on the part of the then Chief Officer ofRespondent No.3 (and all other concerned officers) whowrote the letter dated 4.12.1997 to the concernedPolice Authorities and for their failure to takeproper action either to rehouse the erstwhile tenantsof this building or to house the tenants of the otherdilapidated buildings by taking over the premises atthe rate of Rs.235/per sq.ft. and/or offering them atthat rate to such other tenants in transit camp. Hemust also consider issuance of appropriate guidelinesso that such incidents do not recur.

(d)We direct the Municipal Commissioner ofRespondent No.4 to examine as to whether there was anyinaction on the part of his officers at the stage ofapproval of the plans and in defending the suitNo.5920 of 1999 filed against the BMC and in gettingthe injunction vacated, and to take appropriate stepsagainst the persons concerned. We direct theMunicipal Commissioner to consider taking appropriateaction against the Architect, who according to theBMC, fabricated the plans of the building forproceeding with the construction of 7th and 8thfloors. We further direct him to find out as to howthe amalgamation of the flats on different floors waspermitted and to take action against the officers andthe occupants as well as respondent No.5 for thatpurpose.

(e)We direct the Receiver, High Court, Bombay,appointed vide our order dated 19th September 2001 totake possession of flat No.10, 5th floor (if necessarywith police help), and to place the petitioner inpossession thereof. In the event Respondent No.3decides to recover the space in excess of 250 sq.ft.,the Petitioner will also be entitled to recover theamount due to her from Respondent No.5. It will beopen for respondent No.7 (and 6) or his son Kamlesh torecover the amounts paid by them to respondent No.5 bytaking appropriate steps in accordance with law.

(f)We direct the Prothonotary and Senior Master,High Court, Bombay, to forward a copy of this judgmentto the Advocate General, State of Maharashtra, toexamine and to take steps as to whether anyappropriate action for breach of orders, misleadingthe Court and for perjury could be initiated againstRespondent No.5 for purposefully not disclosing thefacts and misleading the Court to pass differentorders from time to time.

(g)A copy of this judgment to be forwarded tothe Secretary (Housing), the present Chief Officer ofRespondent No.3 and to the Municipal Commissionerforthwith.

(h)The Secretary (Housing), the Chief Officer ofRespondent No.3, and the Municipal Commissioner tofile a report in this Court with respect to theactions taken on or before 30th of June 2002. Thelearned Advocate General is also requested to take hisdecision by that date.

97. The Petition is allowed accordingly withcosts. The order passed on the writ petition takescare of the prayers in the motions. Therefore, noseparate order is necessary on the two notices ofmotion which are pending along with this writpetition. The same are accordingly disposed of withno order as to costs.

98. After the matter reached before this Bench inSeptember 2001, the matter was heard on a number ofdates. The counsel for all the parties made detailedsubmissions and the hearing was concluded on 9thNovember 2001. There have been a number of hearingssince 1999 before the earlier Benches and even beforethis Bench. The petitioner was required to take outthree notices of motion apart from rejoining to anumber of affidavits in reply. It meant a substantialexpenditure on litigation. All this litigation wasforced on the petitioner due to the fraud played bythe respondent No.5 with the assistance or purposiveinaction of the officers of respondent No.3.Respondents Nos.4 and 7 have also contributed to thisagony. Even on a conservative basis, the petitionerought to be awarded cost of Rs.40,000/-. We directrespondent No.5 to pay Rs.20,000/- of it, respondentNo.3 Rs.10,000/- and respondents Nos.4 and 7Rs.5,000/- each.

99. Petition and the motions stand disposed of.However, the Prothonotary & Senior Master is directedto place this matter on the board of the concernedBench on 8th July 2002 to report compliance withrespect to the direction contained in paragraph 96(h)above.

100. The counsel for all the parties apply forauthenticated copy of this order. Authenticated copyof this order be made available to the parties.

101. Prothonotary & Senior Master and the Receiverto act forthwith on the authenticated copy of thisorder.

H.L. Gokhale, J.

V.K. Tahilramani, J.

102. After the judgment and order was delivered,Mr.Joshi, learned counsel appearing for respondentsNos.6 and 7 applied for stay thereof. Ms.Purohitopposed this request. As noted in our order, thepetitioner was required to move from court to courtand from authority to authority for getting theaccommodation, to which she was lawfully entitled longback. If the matter is to be carried to the SupremeCourt, it will mean further waiting and will also needfurther expenditure. We therefore asked Mr.Joshi asto whether he was prepared to deposit Rs.25,000/whichshould be the minimum expenditure on a conservativebasis for the petitioner to defend the mattereffectively in the Supreme Court. Mr.Joshi statedthat he is not in a position to make such statement.In the circumstances, the request for stay isrejected.