Bombay High Court
Willingdon Sports Club And 2 Others vs Maharashtra Housing And Area ... on 8 December, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:26917-DB 13.WP.1218.2011.DOC
LAXMI
SUBHASH
SONTAKKE IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
LAXMI SUBHASH
ORDINARY ORIGINAL CIVIL JURISDICTION
SONTAKKE
Date: 2025.12.30
17:22:12 +0530
WRIT PETITION NO.1218 OF 2011
1. Willingdon Sports Club, Mumbai,
2. Navin Shah, Chairman,
Willingdon Sports Club,
3. Gopal Vazirani, Trustee of
Willingdon Sports Club Petitioners
versus
1. Maharashtra Housing and Area Development
Authority, Mumbai.
2. The Deputy Chief Officer,
Mumbai Building Repairs & Reconstruction Board,
Mjmbai.
3. Laxmikant Khanvilkar, Mumbai. Respondents
_______
Mr.Naushad Engineer, Senior Advocate, with Mr.Sharad Bansal, Mr.Neerav
Merchant, Mr.Hetal Thakore andMr.Kunal Parekh i/by Thakordas Madgavkar for
Petitioners.
Mr.P.G.Lad with Sayali Apte, Ms.Anjali Maskar for Respondent MHADA.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 8th December 2025
ORAL JUDGMENT (Per : Aarti Sathe, J.) :-
1. This petition under Article 226 of the Constitution of India is filed praying for following substantive reliefs :
"a) That this Hon'ble Court be pleased to issue a writ of Certiorari or writ in the nature of certiorari or any other appropriate writ, order or directions under Article 226 of the Constitution of India calling for the records and papers pertaining to the Petitioner's case and after going through the legality thereof, to quash and set aside the impugned letter/order dated 17-8-2010 bearing No.3393 issued by Respondent NO.2 (the Deputy Chief Officer, Mumbai Building Repairs and Reconstruction Board, Maharashtra State, Mumbai) in Page 1 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC respect of original room No.16 and now tenement Nos.602, 603 and 604 in the newly constructed building `Rosa Mystica';
b) That this Hon'ble Court be pleased to issue Writ of Mandamus or any other appropriate writ, order or direction in the nature of Mandamus under Article 226 of the Constitution of India, ordering and directing Respondent No.2 to allot possession of new tenements No.602, 603 and 604 to the Petitioners in lieu of old Room No.16;
c) For interim injunction against Respondent NO.2 not to allot to Respondent No.3 the said tenements and offer or grant possession of newly constructed tenements No.602,603 and 604 to the Petitioners in lieu of old Room No.16 in the newly constructed building Rosa Mystica;
d) For interim injunction against Respondent No.3 not to take possession of newly constructed tenements No.602, 603, and 604 to the Petitioners in lieu of old Room No.16 in the newly constructed building Rosa Mystica;
e) For ad-interim reliefs in terms of prayer clause (b) above."
2. This petition since the time it has been filed in 2011 at the stage of admission was listed on several occasions. It is being disposed of by consent of both the parties.
3. At the outset, we may observe that in the year 2020 when the proceedings were listed before this Court, in its order dated 14 th January 2020, the Court recorded that the parties were exploring the possibility of a settlement out of Court, however, the settlement talks did not fructify.
4. Briefly stated, the facts are :
(i) The first Petitioner is a public trust registered under the Bombay Public Trusts Act, 1950. It has its bye laws and is run and managed by its trustees and General Committee. The Rules and Regulations and bye laws inter alia provides to its members exclusively, various sporting facilities viz. Golf, Page 2 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC Tennis, squash, Billiards, Badminton etc. The father of Respondent No.3 Mr. S.G. Khanwilkar was an employee of the Petitioner No.1 working as the Head Electrician;
(ii) Petitioner No.1 was the sole tenant of the original tenement No.16 in the building Tardeo Mansion, Building No.32-G, which originally belonged to Seth Lalji Dayalji T. Amalgamated Trusts Estate. This tenement was later on renumbered as tenement No.16;
(iii) On 4th December 1974 the Petitioner No.1 permitted Mr.S.G.Khanwilkar to occupy old tenement No.9 (renumbered as tenement No.16) in the Tardeo Mansion, Building No.32-G. In the letter permitting Mr. S.G.Khanwilkar to occupy tenement No.9 (renumbered as tenement No.16), the Petitioner No.1 clearly stated that the occupation of tenement No.9 was only for as long as Mr. S.G.Khanwilkar remains in service and that he may be asked to vacate the same, inter alia, in the event of his retirement and/or termination from service;
(iv) On 21st March 1977, Mr. S.G.Khanwilkar executed an affidavit confirming that he had been permitted to occupy tenement No.9 (renumbered as tenement No.16) by reason of he being an employee of Petitioner No.1. In the said affidavit, he also stated that if him ceases to be in the service of Petitioner no.1 for whatsoever reason, his right of occupation of the tenement No.9 (renumbered as tenement No.16) would cease and consequently he would hand over vacant and peaceful possession of tenement No.9 (renumbered as tenement No.16) to Petitioner No.1;
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(v) The Tardeo Mansion, Building No.32-G partially collapsed in the year 1985 and as a result of the collapse, Mr. S.G.Khanwilkar was permitted to occupy another premises bearing Flat No.612 on the 6 th floor of the building namely Rajani Mahal which was also situated in Tardeo adjoining Tardeo Mansion, Building No.32-G. With regard to these premises allotted to Mr.S.G.Khanwilkar, he executed a similar affidavit/declaration dated 13 th February 1989 confirming that these premises were also made available to him only for the purpose of his residence as long as he was in service of Petitioner No.1;
(vi) On 16th December 1989 the Petitioner No.1 addressed a letter to Mr.S.G.Khanwilkar stating that he was to retire from the service of Petitioner No.1 w.e.f. 1st February 1990. Thereafter, Mr.S.G.Khanwilkar's contract for service was extended by Petitioner no.1 and his employment was ultimately terminated with effect from 1st April 1992;
(vii) Therefore post 1st April 1992, Mr.S.G.Khanwilkar had no right to occupy the premises in Rajani Mahal building, however, he refused to vacate the said premises. Consequently, Petitioner No.1 was constrained to file Suit No.4493 of 1994 before this Court seeking a declaration that Mr.S.G.Khanwilkar is a trespasser;
(viii) Further as stated above, since the building Tardeo Mansion, Building No.32-G had partially collapsed, Respondent No.1 issued acquisition notice No. LAQ/MN & AD/Act/279, dated 5th July 1993. Respondent Nos. 1& 2 post issuing the acquisition notice recovered possession of the entire collapsed building of Tardeo Mansion, Building No.32-G and a new building was Page 4 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC constructed in the place of the old building, known as Rosa Mystica in the year 2007;
(ix) In view of the fact that Petitioner No.1 was a tenant prior to the collapse of the Tardeo Mansion Building No.32-G, Respondent No.2 offered allotment of Room/Gala Nos. 602, 603 and 604 in the newly constructed building Rosa Mystica, but on a joint basis, namely to Petitioner No.1, and Mr.S.G.Khanwilkar. Such allotment was made despite Petitioner No.1 submitting affidavits before Respondent Nos.1 and 2 stating that they were the only tenant in respect of tenement No.9 (renumbered as tenement No.16) in the old Tardeo Mansion, Building No.32-G and that Mr.S.G.Khanwilkar was given the said tenement only till the time he was in service of Petitioner No.1. Petitioner No.1 had also submitted that they were regularly paying rent compensation to Seth Lalji Dayalji T. Amalgamated Trusts Estate and in respect thereof rent receipts are also annexed to the present petition;
(x) In the meantime, Mr.S.G.Khanwilkar expired on 20th July 2006 and Respondent No.3 i.e. his son continues to occupy the flat in Rajani Mahal without paying any amount whatsoever to Petitioner No.1. However, by a communication/ letter dated 17th August 2010 (hereinafter referred to as the 'impugned order') bearing no.3393 issued by Respondent No.2, Room/Gala Nos. 602, 603 and 604 in the newly redeveloped Rosa Mystica building were allotted jointly to Mr.S.G.Khanvilkar and Petitioner No.1. It is this impugned order passed by Respondent No. 2 that the Petitioners assail in the present petition; Page 5 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC
(xi) Further S.C. Suit No. 9088 of 1994(old High Court Suit No.4493 of 1994) filed by the Petitioner was transferred to the City Civil Court and was decreed on 24th August 2022. Respondent No.3 filed an appeal against the judgment and decree dated 24th August 2022 of the City Civil Court before this Court, which is pending. Respondent No.3 has further filed a Suit bearing No. RAD/0201055/2013 before the Small Causes Court, Mumbai seeking a declaration that he was an original tenant of tenement No.9 (renumbered as tenement No. 16), Tardeo Mansion, 2nd Floor, Tardeo..In the above backdrop of the above facts of the case, we proceed to decide the present petition.
5. Mr. Naushad Engineer, learned Senior Counsel appearing for the Petitioners had made the following submissions :
a) It is his submission that in the facts of the present case it is clear that Mr.S.G.Khanvilkar was given the old tenement no.9 (renumbered tenement No.16) in Tardeo Mansion, Building No.32-G merely as a part of employment with Petitioner No.1. In fact, when Tardeo Mansion, Building No.32-
G partially collapsed in the year 1985, Mr.S.G.Khanvilkar was shifted to another premises adjacent to the said building namely Rajani Mahal and there also he was allowed to stay till he was in service of Petitioner No. 1. It is Mr.Engineer's submission that in fact Respondent No.3 now along with his family continues to reside in the said tenement even after the death of his father Mr.S.G.Khanwilkar. In fact, even such occupation is not legal, inasmuch as the same was to be returned/handed over back to the Petitioner No.1 after Mr.S.G.Khanwilkar retired, and hence Respondent No.3 is a rank trespasser. It is further his contention that Page 6 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC the impugned order giving joint possession of the newly constructed Room/Gala nos.602, 603 and 604 in Rosa Mystica in lieu of old tenement No.9 ( renumbered as tenement No.16) to the Petitioner No.1 and Mr. S.GKhanwilkar is also grossly illegal and arbitrary inasmuch as even on the said premises Mr.S.G.Khanwilkar and any of his Legal Representative i.e. Respondent No.3, would be construed as rank trespasser as those premises were given to Mr.S.G.Khanwilkar till he remained in service of Petitioner no.1. It is, therefore, his contention that Respondent Nos.1 and 2 have failed to verify the factual position and arbitrarily passed the impugned order. He further submitted that against the Judgment and Decree dated 24 th August 2022 passed by the City Civil Court, Mumbai in S.C. Suit No. 9088 of 1994 (old High Court Suit No. 4493 of 1994) against Respondent No.3, an appeal is filed by Respondent No.3 which is pending in this Court. The said S.C. Suit No. 9088 of 1994 (old High Court Suit No. 4493 of 1994) was filed by the Petitioner and the following decree was passed on 24 thAugust 2022 by the learned City Civil Court where the operative portion of the decree reads as follows:
"1. Suit is decreed with costs.
2. It is hereby declared that possession of defendants in the suit premises is unauthorized.
3. Defendants to put the plaintiff in possession of suit premises specifically described in Exh. 'A' within a period of one month from today.
4. That an inquiry be made as to the amount of mesne profits from the institution of the suit until the suit property is delivered to the plaintiff club.
5. Decree be drawn up accordingly."
(b) Mr.Engineer has further submitted that even under the provisions of Section 2(25) of the Maharashtra Housing and Area Development Page 7 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC Act, 1976 (`MHAD Act'), once a person is a trespasser, he does not fall within the definition of "Occupier", as defined under the MHAD Act. He also placed reliance on the decision of this Court in the case of Ghulamnabi B.Khan Vs. Bombay Housing & Area Development Board & others1.
6. Although Respondent No.3 has been served and an affidavit-in-reply has been filed on his behalf, none appeared on behalf of Respondent No.3. However, an affidavit dated 24th November 2018 has been filed on behalf of Respondent No.3 wherein Respondent No.3 has opposed admission of the present petition. The relevant paragraphs of the aforesaid affidavit opposing the present petition are reproduced below :
"7. I say that, my father i.e. Late Shri Shridhar Govind Khanvilkar was occupying a Room No.9, 32-G, Tulsiwadi, Tardeo Mansion No.2 on 2nd Floor, Tardeo, Mumbai-400 034 and he was a tenant in respect of Room No.9. I say that, the Respondent No.1 subsequently changed the number of Room No.9 and subsequently the new number of the said Room was given as Room No.16 on 2nd Floor.
8. I say that, my father was in service of Petitioner No.1 and he was promoted into Managerial Cadre of Petitioner No.1 in the year 1988 as he was most honest and sincere employee of the club. Late Shri Shridhar Govind Khanvilkar on 1-2-1990 had retired from the service of Petitioner No.1 as he had reached the age of superannuation and the Petitioners had cleared all his dues and liabilities. Hereto annexed and marked as Exhibit-A is copy of list of tenants of 32-G, Tulsiwadi, Tardeo Mansion No.2, Tardeo, Mumbai- 400 034 along with the notice of Special Officer Land Acquisition, MHADA, wherein the name of Late Shridhar Govind Khanvilkar and Petitioner No.1 is shown as tenants of the said building in respect of Room No.16.
9. I say that, the MHADA officers and employees have inspected the Room no.16 in order to ascertain the occupation and possession of the room number and at that time also it was found that, late Shri Shridhar Govind Khanvilkar along with his family members were 11998-SCC OnLine-Bom-7 Page 8 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC residing in the said Room No.16. I say that, record of the land acquisition also shows that, my late father Shri Shridhar Govind Khanvilkar along with Petitioner no.1 was in possession of the said premises.
10. I say that, Tardeo Mansion no.2 was in a dilapidated condition and not in position to repairs. The said building was collapsed on 28- 7-1985 and the vacation notice was given only to my father late Shri Shridhar Govind Khanvilkar in respect of Room No.9 i.e. in respect of Room No.16 since the Respondent no.2 had earlier changed the room no.9 as Room no.16. The vacation notice was not given to Petitioner no.1. Hereto annexed and marked as Exhibit-B is the copy of the vacation notice issued by Executive Engineer of MHADA to late Shri Shridhar Govind Khanvilkar.
11. I say that, the MHADA records also show that, the transit accommodation was allotted to my late father. Hereto annexed and marked as Exhibit-C are the copies of the Possession Order dated 28- 7-1985 and Allotment Letter in respect of Temporary Accommodation in Transit Camp dated 1-10-1986 in the name of late Shri Shridhar Govind Khanvilkar.
12. I say that, by this documents it is established that, my late father was the tenant and occupant of Room No.16, 32-G, Tulsiwadi, Tardeo Mansion No.2 on 2nd Floor, Tardeo, Mumbai-400 034 i.e. the premises in dispute. I say that, my late father was depositing the rent with the Bombay Housing and Area Development Board in respect of the original Room No.16. Hereto annexed and marked as Exhibit-D is the copy of the receipt dated 30-9-1986 issued by Bombay Housing and Area Development Board in the name of my late father.
13. I say that, the records of Mumbai Building Repairs and Reconstruction Board shows that, late Shri Shridhar Govind Khanvilkar and the Petitioner no.1 were the occupant of Room No.16 but when the said old building i.e. Tardeo Mansion No.2, Tardeo, Mumbai-400 034 was collapsed, the eviction notice was issued in the name of my late father only because my late father was in actual occupation and possession of the said room.
14. I say that, the Respondent no.1 had filed their reply dated 8-12- 2016 in the above Writ Petition and on internal page no.4 i.e. on page no.136 the Respondent no.1 has specifically admitted that, "as per the procedure of MHADA and particularly under section 91(3) of the MHADA Act, 1976, the occupants those who are dis-housed are entitled to get accommodation in lieu of their old occupation in view Page 9 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC of the collapsed building". Therefore, the order dated 17-8-2010 passed by the MHADA authority is partly correct. Hereto annexed and marked as Exhibit-E is the copy of the order dated 17 th August 2010 passed by MHADA.
15. I say that, the property in dispute was acquired by Special Officer Land Acquisition, MHADA and they have given the alternate accommodation in transit camp to my late father and the MHADA also prepared list of occupants of the building 32-G, Tulsiwadi, Tardeo Mansion No.2, Tardeo, Mumbai-400 034 and the concern authority at that time called upon to submit objections and suggestions to the acquisition proposed and why the said land with the exiting building thereon should not be acquired. I say that, after the reconstruction of the building in the place of old Tardeo Mansion No.2 the MHADA authority had given the name of said building as `Rosa Mystica' and the MHADA authority has allotted Room No.602, 603 and 604 in the newly constructed building to Respondent no.3 and Petitioner no.1 jointly. But now the Petitioner no.1 is falsely claiming the said allotted room by giving impression that the said old room was given to my late father as service quarter and after retirement the employee has to vacate the premises and therefore, the Petitioner no.1 is taking objection for allotment to Respondent no.3 i.e. who is the legal heir of late Shri Shridhar Govind Khanvilkar.
16. I say that, my father had expired on 20-7-2006. My father was paying the rent regularly to MHADA. Hereto annexed and marked Exhibit-F are the copies of the receipt dated 17-7-2002 and 15-12- 2011 issued by MHADA in the name of my late father. The said receipts in respect of the transit camp which was allotted to my father by the MHADA authority after giving the vacation notice to my late father only.
17. I say that, the Petitioners have suppressed the fact from this Hon'ble Court that, the Respondent no.3 i.e. myself have filed a RAD Suit No.1055 of 2013 in the Hon'ble Small Causes Court for declaring me as the tenant of Room No.9. Subsequently numbered as Room No.16, 32-G Tulsiwadi, Tardeo Mansion No.2 on 2 nd floor and now the new allotted Room No.602, 603 and 604 which is given as an alternate accommodation. I say that the said suit is still pending in the Hon'ble Small Cause Court Mumbai wherein Petitioner no.1 and 2 in the above writ petition are Defendant no.1 and 2 in the RAD Suit No.1055 of 2013. Hereto annexed and marked as Exhibit-G is the copy of the Plaint of RAD Suit No.1055 of 2013 without documents."
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13.WP.1218.2011.DOC
7. Mr. Lad, learned counsel for Respondent Nos.1 and 2 has submitted that the impugned order has been correctly passed by the MHADA as per the provisions of law qua the tenement in question and the same is allowed jointly in the name of Petitioner No.1 and Mr.S.G.Khanwilkar. The affidavit-in-reply dated 28th December 2016 of one Mr. Savaleram Gangadhar Ghode, Deputy Chief officer of Respondent No.1 has been filed on behalf of Respondent No.1. The relevant paragraphs of the aforesaid affidavit are required to be noted which read thus :
"2. If allot he said documents are perused it will be realized that late Shri S.G.Khanvilkar was the employee of Petitioner trust and he was tenant/occupant on 2nd floor in room no.16 along with the Willingdon Club. The list of the tenant is annexed by the Petitioner Club itself on page 54A. The MHADA Officers and employees have inspected the tenement in order to ascertain the occupation and possession of the tenement, at that time also it is found that said Shri Khanvilkar along with his family members were residing in the said tenement. Record of the land acquisition also shows that late Shri Khanwilkar along with the Willingdon Sports Club was in possession of the said premises and however vacation notice was given to S.G.Khanwilkar for room no.9. The record shows that transit accommodation was given to Shri Khanwilkar. However on page 57 at Exh.E of the petition there is Affidavit of Shridhar G.Khanwilkar the son of late Shri Govind Baban Khanwilkar. Said Affidavit is also availed on record of MHADA. From the said affidavit it shows that said Shri Khanwilkar was in service of Willingdon Sports club and he was occupying the residential premises along with his family member. In paragraph no.4 it is mentioned by said Shri Khanwilkar that he will remove his belongings and after his death or after resignation from service or termination from the service he shall hThis is sought to be argued in the context of the provisions of section 90 read with section 9 of MHADA Act. Section 91 refers to an `Occupier' and makes applicable mutatis mutandis. Section 90 casts a duty on the Board to give temporary accommodation to occupiers in the cases covered by section 90 and/or section 91. In the instant case, therefore, it is sought to be pointed out that the appellant being in occupation of the premises may be with the respondent no.5 still was residing in the premises as a licensee and once he is a licensee he falls within the Page 11 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC definition of an occupier in so far as the MHADA Act is concerned. This submission, therefore, will have to be considered qua the definition of occupier under section 2(25). In a case where one of the person in possession is able to establish that he had been paying or paid to owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable then in such an event will another person residing in the premises with the permission of the person defined as occupier in clause (a) also becomes as occupier for the purpose of MHADA Act. Consequently, would respondents nos.1 to 4 be bound to allot such transit camp accommodation and thereafter premises in the newly constructed building also to such other person. It is sought to be contended that the definition is inclusive. It is, therefore, sought to be contended that it is not impossible to conceive of a situation where in the same premises two persons are in occupation as in the instant case who will be occupier for the purpose of MHADA Act.
12. At the first instance the argument seems to have merit in as much as all that is contemplated under the definition is that a person in possession must fall as an occupier in either of the categories asset out under (a) to (e) of definition of an occupier. However, considering each of five categories what emerges is what the definition contemplates is a `person' who will be an occupier. In so far as the authorities under the Act are concerned, they are bound to look at the person who falls in the definition of occupier. Inter se rights between an occupier who is a tenant and another person residing with such tenant would not make such a person as an occupier in so far as authorities under the MHADA Act are concerned. That would be a dispute between the occupier and the person in occupation with the occupier. In the instant case D.W.3 who is a landlord has accepted the respondent no.5 as a tenant. Once he accepts respondent no.5 as a tenant respondent no.5 satisfies the definition of occupier. Therefore, in so far s the authorities under the Maharashtra Housing and Area Development Authority sic Act are concerned, occupier in the instant case would be the person who was paying rent. Once one of the categories is included it is impossible to conceive of a situation that thereafter any other categories as set out in the said definition can also be joint occupant along with the occupier. The legislature has contemplated as to who is an occupier. The definition itself gives some indication that ultimately what the Act has considered is an `occupier'. Once I told that there is an occupier in respect of the said premises the mere fact that another is residing with the said occupier would not make the said other also occupier for the purpose of sub- section (25) of section 2 of the MHADA Act." (emphasis applied)and over the peaceful possession of the vacant possession of the said flat to the Club. He further states that he shall not sublet the premises. In Page 12 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC last paragraph he further say that he is occupying the flat being the employee of club and he has no right title and interest in the said flat. The said affidavit dated 13-2-1989 late Shri S.G.Khanwilkar is annexed to the petition. There is also affidavit cum indemnity bond annexed to the petition by the Petitioner. The said indemnity bond is executed on behalf of Willingdon Sports Club through the Secretary of the said club. In which it is mentioned that Willingdon Club is occupant of the old premises being a lawful tenant.
3. From the basis of the said document it is established that both the petitioner as well as late Shri S.G.Khanwilkar were the occupant of the premises in dispute. Even from the record of Mumbai Building Repair & Reconstruction Board shows that late Shri S.G.Khanwilkar and the Petitioner were the occupants of the room no.16 adms727.14 sq.ft jointly. And said Shri Khanwilkar appears to be supervisor over the Willingdon Club and he was not giving a rent for the said premises. Further in the notification dated 5-7-1993 under the Land Acquisition Act the name of the Willingdon Club and S.G.Khanwilkar is shown. It appears that when the said old building was collapsed the eviction notice was issued in the name of Shri S.G.Khanwilkar because at the time of collapse of the said building said Shri S.G.Khanwilkar was in occupation and possession of the said tenement and therefore as per the procedure of MHADA and particularly u/s.91(3) of the MHADA Act 1976 the occupants those who are dishoused are entitled to get accommodation in lieu of their old occupation in view of collapsed building.
4. I therefore say that the MHADA authorities rightly passed the order dated 17-8-2010 the said order is annexed on page 126 at Exh.W of the petition. From the perusal of the said order it shows that Gala no.602, 603 and 604 are being proposed for allotment in favour of joint allotment in favour of Shri S.G.Khanwilkar and Willingdon Sports Club. Pursuant to the said letter dated 17-8-2010 the petitioner as well as Shridhar Khanwilkar was directed to approach jointly to take the possession of the flat. I therefore say that the MHADA authorities have to act as per the provision of law and hand over the possession of the tenement to the person who was the occupant t the time of vacating the premises. Accordingly we have rightly given a letter jointly to both the parties in the name of Willingdon Club and S.G.Khanwilkar."
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13.WP.1218.2011.DOC
8. Today an additional affidavit dated 8 th December 2025 of the Chief Executive Officer and Secretary of the Petitioner No.1 is placed on record along with photographs wherein it has been submitted that the Rooms/Galas Nos. 602, 603 and 604 at Rosa Mystica are vacant and unoccupied, and not in the Petitioner No. 1's possession. In the said affidavit, it has also been submitted that Respondent No.3 is also not in possession of the said Rooms/Galas and same lie vacant and unoccupied. Similarly, Respondent No.1 through learned counsel Mr. Lad also has placed on record an inspection report dated 8 th December 2025 taken at 1.30 p.m on 8th December 2025, reporting that Rooms/Galas Nos. 602, 603 and 604 in Rosa Mystica are locked and not occupied.
9. We have heard learned counsel for the parties. We have also perused the impugned order and the record from which we are of the opinion that the impugned order has not taken into consideration the indisputed facts of the case and the legal position in respect of allotment made to Mr.S.G.Khanwilkar of old tenement No.9 (renumbered as tenement No.16) in lieu of which Room/Gala Nos. 602, 603 and 604 of Rosa Mystica building have been jointly allotted to the Petitioner No.1 and Mr.S.G.Khanwilkar. It is also an indisputed position that old tenement No.9 (renumbered as tenement No.16) in the Tardeo Mansion, Building No.32-G was handed over to Mr.S.G.Khanvilkar by Petitioner No.1 only till the time he was in service of Petitioner No.1. It is also clear from the affidavits dated 21st March 1977 filed by Mr.S.G.Khanwilkar that he also intended to occupy the said tenement No.9 only till he continued in service of Petitioner No.1. It is further seen from the record that rent in respect of tenement No.9 (renumbered as Page 14 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC tenement No. 16) has always been paid by Petitioner No.1 and never paid by Mr.S.G.Khanwilkar or by his legal representative Respondent No.3.
10. In view of the above facts, it will be relevant to reproduce the provisions of Section 2(25) of MHAD Act, which defines "Occupier" :
"2(25) Occupier' includes :
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using his land or building;
(c) a rent-free tenant of any land or building;
(d) a licensee in occupation of any land or building; and
(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building."
11. Therefore, from a perusal of the said definition it is clear that to be an occupier, a person has to be paying or is liable to pay to the owner, the rent or any portion of the rent of the land or the building in respect of which such rent is paid or payable. In the facts of the present case, the Respondent No.3 does not fit into any of the categories as envisaged under Section 2(25) of MHAD Act. In fact, he is a rank trespasser, inasmuch as he was to hand over vacant and peaceful possession of the tenement granted to his late father Mr.S.G.Khanwilkar on termination of his service. Such position gets fortified from the decision of this Court in Ghulamnabi B. Khan (supra) wherein it has been held that a person in possession must fall within the definition of `Occupier' as contemplated under Section 2(25) of MHAD Act. Once a person is not an occupier as defined in the said section, then, Page 15 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC no right can be conferred upon him and in the present case a trespasser would under no circumstances fall within the aforesaid definition. The relevant observations of this Court in the aforesaid decision are reproduced below :
"11. This is sought to be argued in the context of the provisions of section 90 read with section 9 of MHADA Act. Section 91 refers to an `Occupier' and makes applicable mutatis mutandis. Section 90 casts a duty on the Board to give temporary accommodation to occupiers in the cases covered by section 90 and/or section 91. In the instant case, therefore, it is sought to be pointed out that the appellant being in occupation of the premises may be with the respondent no.5 still was residing in the premises as a licensee and once he is a licensee he falls within the definition of an occupier in so far as the MHADA Act is concerned. This submission, therefore, will have to be considered qua the definition of occupier under section 2(25). In a case where one of the person in possession is able to establish that he had been paying or paid to owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable then in such an event will another person residing in the premises with the permission of the person defined as occupier in clause (a) also becomes as occupier for the purpose of MHADA Act. Consequently, would respondents nos.1 to 4 be bound to allot such transit camp accommodation and thereafter premises in the newly constructed building also to such other person. It is sought to be contended that the definition is inclusive. It is, therefore, sought to be contended that it is not impossible to conceive of a situation where in the same premises two persons are in occupation as in the instant case who will be occupier for the purpose of MHADA Act.
12. At the first instance the argument seems to have merit in as much as all that is contemplated under the definition is that a person in possession must fall as an occupier in either of the categories asset out under (a) to (e) of definition of an occupier. However, considering each of five categories what emerges is what the definition contemplates is a `person' who will be an occupier. In so far as the authorities under the Act are concerned, they are bound to look at the person who falls in the definition of occupier. Inter se rights between an occupier who is a tenant and another person residing with such tenant would not make such a person as an occupier in so far as authorities under the MHADA Act are concerned. That would be a dispute between the occupier and the person in occupation with the occupier. In the instant case D.W.3 who is a landlord has accepted the respondent no.5 as a tenant. Once he accepts respondent no.5 as a tenant respondent no.5 satisfies the definition of occupier. Therefore, Page 16 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC in so far s the authorities under the Maharashtra Housing and Area Development Authority sic Act are concerned, occupier in the instant case would be the person who was paying rent. Once one of the categories is included it is impossible to conceive of a situation that thereafter any other categories as set out in the said definition can also be joint occupant along with the occupier. The legislature has contemplated as to who is an occupier. The definition itself gives some indication that ultimately what the Act has considered is an `occupier'. Once I told that there is an occupier in respect of the said premises the mere fact that another is residing with the said occupier would not make the said other also occupier for the purpose of sub- section (25) of section 2 of the MHADA Act." (emphasis applied)
12. We are, therefore, in agreement with the submissions as advanced by Mr. Engineer that once the Respondent No.3 was a rank trespasser, then the question of him claiming possession in respect of Rooms/Gala Nos. 602, 603 and 604 in Rosa Mystica building in lieu of old tenement No.9 (renumbered as tenement No. 16) would not arise, as the original tenement was given to his late father Mr. S.G. Khanwilkar only till he was in the service of Petitioner No.1. His service came to an end in the year 1992. Further even as of today the Respondent No.3, who is the legal heir of Mr.S.G. Khanwilkar continues to reside in the other alternate accommodation in Rajani Mahal (not in the redeveloped premises) that too without paying any amount whatsoever to Petitioner No.1. It is also seen from the additional affidavit tendered today in Court of the Chief Executive Officer and the Secretary of Petitioner No.1 as well as report submitted by learned counsel Mr. Lad on behalf of MHADA that Rooms/Galas Nos.602, 603 and 604 are vacant and locked. However, considering that the First Appeal No. 1072 of 2022 against the order of the City Civil Court dated 24 th August 2022 passed in S.C. Suit No. 9088 of 1994 (old High Court Suit No. 4493 of 1994) is pending adjudication in this Court, the rights of Petitioner No.1 and Respondent No.3 are still subject to Page 17 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::
13.WP.1218.2011.DOC challenge. Further Suit No. RAD/0201055/2013 filed by Respondent No.3 in the Small Causes Court, Mumbai is also pending adjudication. However, considering the aforesaid position and the facts of the case, we deem it appropriate to pass following order :
ORDER
(i) The impugned letter/order dated 17th August 2010 passed by Respondent No.2 is quashed and set aside;
(ii) Respondent No.1 is directed to issue a fresh allotment letter and hand over the possession of Rooms/Gala Nos.602, 603 and 604 of building Rosa Mystica in favour of Petitioner No.1, in lieu of old tenement no.9 (renumbered as tenement No.16) within a period of four weeks from the date this order is made available to the Respondent No. 1;
(iii) Such orders granting possession of Rooms/Gala Nos. 602, 603 and 604 to Petitioner No.1 by Respondent No.1, shall be subject to the final outcome in First Appeal No. 1072 of 2022 filed by Respondent No.3 in this Court against the order dated 24th August 2022 passed by learned City Civil Court in S.C. Suit No. 9088 of 1994 ( High Court Suit No. 4493 of 1994) and also subject to the final outcome in Suit No. RAD/0201055 /2013 filed by Respondent No. 3 in the Small Causes Court, Mumbai ;
(iv) The petition is accordingly allowed in the aforesaid terms. No order as to costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.) Page 18 of 18 Manish Thatte ::: Uploaded on - 30/12/2025 ::: Downloaded on - 02/01/2026 20:44:08 :::