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3 According to Shri. Dwarkadas, the learned senior counsel for the petitioner, before consent Decree was passed on 28/01/2011, on 21/01/2011, purported Deed of Assignment of tenancy came to be executed by erstwhile tenants Mr. Nityanand Wagle and Mr. Lalwani assigning their tenancy rights in favour of one Mr. Kashimpuria and Mr. Bhalgat. He then submits that not a single rent receipt is produced on record evidencing the creation of tenancy 8 48.16 PIL.doc in favour of Mr. Wagle & Mr. Lalwani but for two tenancy receipts for the period prior to 2011 viz 01/12/1974 and 01/04/1975 issued by erstwhile owner Mr. Gaekwar. According to him, a complete unnatural transaction was entered into at the behest of respondent no. 9 who with a pre-meditated intention assigned the tenancies based on the terms which are best suited to his convenience so as to re-develop property under DCR 33 (7). Both these tenants Mr. Wagle and Mr. Lalwani sold their rights in favour of respondent no. 9 and by virtue of same, respondent no. 9 by taking undue advantage under Regulation 33(7) has illegally obtained permission to develop the property. He would urge that DCR 33 (7) is applicable to reconstruction/redevelopment to be undertaken by the Co-operative Housing Societies of tenants or Co-operative Housing Societies of Landlords and/or of occupiers of cessed building which falls under category 'A' in the Island city. He submits that the prerequisite for enjoying benefit under DCR 33 (7) can be summarised as :

41 48.16 PIL.doc 31 In addition to above, the aforesaid view is reiterated by the Apex Court in the matter of K. Ram Shenoy [Cited supra], particularly 27, 28 & 29. That being so, the Public Interest Litigation, in our opinion is very much maintainable at the behest of the petitioner.

32 From the record, few of the admitted facts as could be inferred are on 28/1/2011, said property i.e. Villa Nirmala was purchased by respondent no. 9 with structure in view of the terms of the consent Decree passed in Suit No. 70 of 1978. From 2011 to 2014, the developer processed his request for grant of permission for development on the said plot under DCR 33 (7). Respondent MHADA issued NOC on 12/04/2012. Pursuant to the same, in October 2014, respondent no. 9 demolished the property. The property namely 'Villa Nirmala' was constructed prior to 1948 as is apparent from the affidavit of MHADA and the fact that electric bill of 1936 is traced on record. Both Mr. Wagle and Mr. Lalwani, tenants of 42 48.16 PIL.doc erstwhile owner namely Mr. Gaekwar claimed to have assigned their tenancy in favour of Mr. Kashimpuria and Mr. Bhalgat in recent past i.e. in September 2011. It can also be noted from the record that on 03/05/1975 said Nityanand Wagle and Taru Lalwani by Deed of Conveyance became owner of respect part of the property which is divided into North and South flats consisting of Ground + 2 structures. As such, it can be inferred that they became owner of the property. Their status as tenant of Mr. Gaekwar whether ceased to exist or continues in view of ownership, and assignment of tenancy if any, is sought to be concluded in favour of respondent no. 9 based on consent Decree.

33 It is the case of all the respondents that both these alleged tenants namely Mr. Wagle and Mr. Lalwani by Deed of Assignment assigned their tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat who stepped into their shoes as tenants in the property of 'Villa Nirmala'. The aforesaid factual matrix can be inferred from the affidavit of respondent MHADA. Respondent no. 9, pursuant to consent Decree claimed to have acquired rights in the property 'Villa 43 48.16 PIL.doc Nirmala' on 28/01/2011 and has paid cess for 36 years on the said date. As such, it is required to be ascertained whether the purported Assignment dated 21/01/2011 executed by Mr. Wagle and Mr. Lalwani claimed to be tenants has identity in Law particularly when they claimed to have assigned their tenancy in favour of Mr. Bhalgat and Mr. Kashimpuria.

38 Apart from above, the entire scenario as to the Mr. Lalwani and Mr. Wagle who were tenants of Mr. Gaekwar in 1975 becoming owners of the property, thereafter continued to claim that they remained to be tenants in common and assigning their tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat also required to be viewed in the background of satisfaction of ingredients required for DCR 33 (7). Whether such transaction was artificial in nature so to avail the benefit under Regulation 33 (7) for redevelopment is an issue which in our opinion needs to be looked into by respondent- MHADA. The alleged rent receipt of 1974 and 1975 in favour of Mr. Wagle and Mr. Lalwani, in our opinion is also not looked into by the 47 48.16 PIL.doc authority while invoking DCR 33 (7) in favour of respondent no. 9. Vide communication dated 27/01/2011 respondent no. 9 informed respondent-MHADA that the structure 'Villa Nirmala' is a cessed structure, however, the fact remains that there is no material to infer that the Deed of Conveyance dated 03/05/1975 in favour of Mr. Wagle and Mr. Lalwani were brought to the notice of respondent-MHADA. What is noticed from the record of MHADA is an endorsement that on 03/06/1996, no new tenancy was created. However, from the record, it cannot be inferred that all the aforesaid events of 1975, Conveyance in favour of Mr. Wagle and Mr. Lalwani, whether they continued to be tenants in common and after becoming owners whether they have right to assign their tenancy right is not at all gone into. It is also not clear from the record as to whether contents of the telephone bill, passbook of the tenants Mr. Kashimpuria and Mr. Bhalgat of Union Bank of India which account was opened on 06/07/2011, irrevocable Deed of Assignment of tenancy, alleged rent receipts, electric bills in favour of Mr. Kashimpuria and Mr. Bhalgat duly appreciated by MHADA while dealing with invoking of DCR 33 (7) in favour of respondent no. 9.