Bombay High Court
Apoorva Ulhas Hadkar And Viraj Ulhas ... vs The State Of Maharashtra And 2 Ors on 5 February, 2021
Author: Vinay Joshi
Bench: S.J. Kathawalla, Vinay Joshi
28 wp 3683 of 2018.doc
Kanchan
P. Dhuri IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by Kanchan P.
Dhuri
Date:
2021.02.06
WRIT PETITION NO.3683 OF 2018
20:21:55
+0530
Apoorva Ulhas Hadkar and Anr. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.3686 OF 2018
Vasant Vithal Sabnis ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.30 OF 2019
Amruta Pradeep Bhide ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.35 OF 2019
Vilas Janardan Karnik and Ors. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.45 OF 2019
Devkaben Jagshi Vira ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.46 OF 2019
Suresh Rathunagh Mahadik ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.50 OF 2019
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28 wp 3683 of 2018.doc
Arjun R. Purohit and Anr. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.55 OF 2019
Sanjivali Vijay Patankar ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.58 OF 2019
Krishnaraj B. Shinde and Ors. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.69 OF 2019
Sudhakar Ganpat Keer ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.81 OF 2019
Kishor H. Jadhav ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.92 OF 2019
Suryakant p. Borshe ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
Mr. Sandeep Vasant Bane, for Petitioners.
Mr. Sukanta Karmakar, AGP, for State in WP 3683 of 2018 and 46 of 2019.
Mr. Rajiv Mane, AGP, for State in WP 3686 of 2018 and 45 of 2019.
Mr. Amit Shastri, AGP, for State in WP 30 of 2019 and 81 of 2019.
Mr. Hemant Haryan, AGP, for State in WP 35 of 2019 and 50 of 2019.
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28 wp 3683 of 2018.doc
Mrs. Uma Palsule-Desai, AGP, for State in WP 55 of 2019.
Mr. A.A.Sayed, AGP, for State in WP 58 of 2019.
Mr. Milind More, Addl. Govt. Pleader, for State in WP 69 of 2019.
Mr. Shyamrao Gore, AGP, for State in WP 92 of 2019.
Mr. Prakash Lad with Ms. Priyanka Naik, for MHADA.
Mr. Sanket Mungale, for Respondent No.3.
CORAM: S.J. KATHAWALLA &
VINAY JOSHI, JJ.
DATE: 5th FEBRUARY, 2021 P.C.:
1. The above Writ Petitions are filed by the Petitioners who are some of the eligible tenants/occupants of Shree Swami Samarth Krupa Building No.1, Gokhale Road, Dadar (W), Mumbai - 400 028 standing on plot bearing C.S.No.1646 and 1/1646 of Mahim Division admeasuring 1131.48 sq. yards equivalent to 946.03 sq.mtrs. ( the said property). The said building has 100 tenants/occupants. The landlord of the said building is one Shri Vilas Chandrakant Gaonkar - Respondent No.3, who had agreed to carry out redevelopment of the said property.
2. The landlord developer (Respondent No.3) took possession of the tenanted premises from the 100 tenants sometime in the year 2008 and agreed to pay to them transit rent in lieu of temporary alternate accommodation. The landlord developer not only failed to redevelop the property as promised, but also failed to pay the agreed compensation in lieu of temporary alternate accommodation to the tenants, thereby bringing the 100 tenants, almost on the streets.
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28 wp 3683 of 2018.doc
2. One of the tenants had earlier filed a Writ Petition No.1658 of 2012 and had also taken out a Notice of Motion No.180 of 2016 therein, interalia seeking directions against Respondent No.3 to pay to the Petitioner therein the arrears of rent and for the future rent/compensation payable every month by the Respondent No.3 in lieu of temporary alternate accommodation until the permanent alternate accommodation is handed over to the Petitioner; to direct Respondent No.2 not to grant any further permission to Respondent No.3 till he pays Petitioner the arrears of rent; and to direct Respondent No.2 to cancel the NOC issued to Respondent No.3 until the transit rent is paid to the Petitioner and possession of alternate accommodation is handed over to the Petitioner.
3. The Division Bench of this Court (Coram : S.C.Dharmadhikari, as he then was & B.P.Colabawalla, JJ.) after recording the breaches committed by the landlord developer and the plight of the tenants passed an order dated 21 st October, 2016, paragraph 9 of which reads as under :
"9. In the light of the above, we direct the second respondent to proceed against the third respondent insofar as the recovery of arrears of transit rent/compensation. Let the steps be taken in accordance with law. The second respondent can, for that purpose, seek assistance of the Collector, Mumbai City. The Collector, shall upon a certificate of the arrears provided by the second respondent, proceed to recover the sum thereunder as arrears of land revenue. The Collector to thereafter, complete the process within a period of eight weeks from the ssp 4/9 28 wp 3683 of 2018.doc date of receipt of the certificate from the second respondent."
4. In paragraph 8 of the said order dated 21 st October, 2016, the Division Bench also recorded the statement made by Advocate Utangale appearing on behalf of MHADA, which reads thus :
"8............. As far as the other action is concerned, Mr. Utangale stated on instructions that if all the occupants and tenants get together and request Respondent Nos.1 and 2, these respondents would take appropriate steps namely for acquisition of the property. Thereafter, they would complete the construction at site and rehouse each of the eligible occupants and tenants of the premises. However, Mr. Utangale states that one or two persons making the request would not be feasible. The acquisition proposal cannot be moved unless all indicate their agreement and apply for acquisition of the property/land in terms of the powers conferred in the second respondent."
5. The landlord/developer has sold the entire saleable area to third parties including the bank from whom he has admittedly received a loan of Rupees Twenty Crores. He has also received substantial amounts from other third parties to whom the saleable area has been sold.
6. By the above Writ Petitions, the Petitioners who are the tenants of the very same building, and who have also handed over possession of their respective premises to the Respondent No.3 since the last several years, upon the promise made by ssp 5/9 28 wp 3683 of 2018.doc Respondent No.3 to redevelop the property and handover new flats on ownership basis to them and in the interregnum to pay to them monthly compensation in lieu of temporary alternate accommodation, filed the above Writ Petitions seeking the following reliefs :
"(a) Writ of Certiorari may be issued against Respondent Nos.1 and 2 and direct and recover from the Respondent No.3 the amount of Rs.18,82,272/- as balance transit rent, brokerage and shifting charges for the period from April 2015 to March 2019 as per statement Exhibit "D" and handover to Petitioner.
(b) Writ of Certiorari may be issued against Respondent Nos.1 and 2 that this Hon'ble Court may be pleased to direct Respondent Nos.1 and 2 to ensure and direct Respondent No.3 to provide Rs.42413 X 12 = Rs.5,08,956/- and Rs.42,413/- one month rent as brokerage and Rs.42,413/- one month rent as shifting charges.
The total amount of Rs.5,93,782/- for the period April 2019 to March 2020 to Petitioner receivable from Respondent No.3.
(c) That this Hon'ble Court may be please to order and direct Respondent Nos.1 and 2 to acquire plot of land C.S. No.1646 & 1/1646 of Mahim Division admeasuring 1131.48 sq.yards equivalent to 946.03 sq.mtrs. situated at Ranade Road, Gokhale Road Junction, Dadar (West), Mumbai - 400 028, for Rehabilitation of old tenants of building "Shree Swami Samartha Building Nos.1 and 2".
(d) That this Hon'ble Court may be please to order and direct Respondent Nos.1 and 2 to complete the remaining construction ssp 6/9 28 wp 3683 of 2018.doc work of Rehabilitation Building which is constructed for rehabilitation of old tenant like Petitioner and handover to Petitioner within stipulated time period fixed by this Hon'ble Court;"
7. The Advocate for the Respondent No.3 on instructions from the son of Respondent No.3 who is present in Court submits that the landlord/developer is not having any funds to either pay the tenants the arrears of rent or to redevelop the property. He states that Arbitration proceedings have been initiated against the bank which has not provided the agreed finance to him and in any event the prayers in the Writ Petition are covered by the order of the Division Bench dated 21 st October, 2016 pursuant to which his properties have been attached. Admittedly, the landlord/developer has filed a Review Petition seeking review of the said order dated 21st October, 2016 but he has neither moved the Court for hearing of the same nor has he obtained a stay of the order dated 21st October, 2016, in the review petition.
8. We have considered the above facts in the matter and the submissions made before us.
9. According to the Respondent No.3, prayer clause (a) of the present Writ Petition is covered by the above order dated 21 st October, 2016. The Collector was to act on the order and recover the arrears of transit rent/compensation from the Respondent No.3. It appears that the Collector has not taken any effective steps to ssp 7/9 28 wp 3683 of 2018.doc comply with the said order, which would assist the tenants to receive the arrears of rent and ensure a roof over their heads. The Collector, Mumbai City is therefore, directed to forthwith comply with the order passed by this Court as far back as on 21 st October, 2016, and submit his report to this Court with regard to the steps taken by him pursuant to the order dated 21 st October, 2016. In any event the Collector is directed hereinabove to submit his report to this Court, qua the steps taken by him pursuant to the order dated 21 st October, 2016, passed by the Division Bench of this Court in Writ Petition No. 1658 of 2012.
10. As far as prayer clause (b) is concerned, the Advocate appearing for Respondent No.3 on instructions from the son of Respondent No.3, who is present in Court, has reiterated his above submissions. He has stated that the Collector has attached all the properties of Respondent No.3 and it is the Collector who will have to make payments upon realizing the sale consideration of the attached properties. It is pertinent to note that Respondent No.3 who has received an amount of Rs.20 Crores from the bank and also the substantial amounts from purchasers of the saleable area has submitted that he is unable to pay even a sum of Rs.5,93,782/- to the tenants who are almost brought on the streets by him.
11. As far as prayer clauses (c) and (d) are concerned, the Advocate appearing for MHADA states that the MHADA has as far back as on 4 th August, 2017 already forwarded a proposal to the State Government to acquire the said property, to which ssp 8/9 28 wp 3683 of 2018.doc the State Government has till date not responded. Though copies of the above Writ Petition are served on the State as far back as on 13 th November, 2018 and despite two years having passed thereafter, even today the State Government has not bothered to file its Affidavit in Reply to the above Writ Petitions. Again, not a single officer is present before the Court to give instructions in the matter, to the learned AGP. In view thereof, except for the AGP stating that she has no instructions in the matter, she is unable to make any submissions in the matter. The State Government is therefore, directed to file its Affidavit by 9th February, 2021 informing this Court as to what steps have been taken upon receiving the proposal from MHADA on 4th August, 2017.
12. Stand over to 9th February, 2021 along with Writ Petition No.1658 of 2012, first on board.
( VINAY JOSHI, J. ) ( S.J.KATHAWALLA, J.)
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