In a situation of acute housing shortage, it is just and convenient to appoint a Receiver in respect of a flat that is lying vacant, especially when the plaintiff has made out a prima facie case for his claim to the flat and it is a case of criminal waste for the flat to remain vacant.

Headnote:
RECEIVERSHIP - APPOINTMENT OF RECEIVER - ORDER 40 RULE 1 CPC - HOUSING SHORTAGE - FLAT LYING VACANT - PRIMA FACIE CASE - JUST AND CONVENIENT - WASTE - SECTION 151 CPC - INHERENT POWER OF THE COURT - JURISDICTION OF CIVIL COURT - SECTION 177 OF THE MAHARASHTRA HOUSING AND AREA DEVELOPMENT ACT, 1976 - SUIT FOR DECLARATION OF TITLE TO FLAT - INTERIM INJUNCTION - APPOINTMENT OF RECEIVER - CONDITIONS - UNDERTAKING BY PLAINTIFF.
Fact of the Case:

The plaintiff, an occupant of a dilapidated building acquired by the Maharashtra Housing and Area Development Authority (MHADA) under section 41 of the Maharashtra Housing and Area Development Act, 1976, filed a suit for declaration of title to a flat in the newly constructed building erected in place of the dilapidated building. During the pendency of the suit, the plaintiff filed a notice of motion for injunction restraining MHADA from allotting the flat to any other person. The trial court granted an ad interim injunction and subsequently made the injunction absolute on 20-11-1981. The plaintiff then filed another notice of motion for appointment of a Receiver in respect of the flat and for appointing himself as the Receiver's Agent so that he could occupy the flat. The trial court dismissed the notice of motion.
Finding of the Court:

The High Court allowed the appeal and appointed a Receiver in respect of the flat. The court held that it was just and convenient to appoint a Receiver in the circumstances of the case, considering the acute housing shortage and the fact that the flat was lying vacant for a long time. The court also held that the plaintiff had made out a prima facie case for his claim to the flat and that it was a case of criminal waste for the flat to remain vacant. The court further held that the trial court had jurisdiction to entertain the suit and that the provisions of section 177 of the Maharashtra Housing and Area Development Act, 1976, did not bar the appointment of a Receiver.
Issues: 1. Whether it was just and convenient to appoint a Receiver in respect of the flat? 2. Whether the plaintiff had made out a prima facie case for his claim to the flat? 3. Whether it was a case of criminal waste for the flat to remain vacant? 4. Whether the trial court had jurisdiction to entertain the suit? 5. Whether the provisions of section 177 of the Maharashtra Housing and Area Development Act, 1976, barred the appointment of a Receiver?
Ratio Decidendi: 1. The court held that it was just and convenient to appoint a Receiver in the circumstances of the case, considering the acute housing shortage and the fact that the flat was lying vacant for a long time. The court observed that the institution of the Court is not meant only for the purpose of doing justice merely in accordance with the grammar of law, without delving into the spirit of it, not worrying, in the process of such administration of justice, whether justice smothered itself to death. Timers are changing, the courts must keep abreast of the timers; at least must make attempts to be abreast of the times; and these small orders are the matters which give opportunity to the Court to have a second thought at the old notions. 2. The court held that the plaintiff had made out a prima facie case for his claim to the flat, considering the fact that he was an occupant of the dilapidated building which was acquired by MHADA and that he was entitled to alternative accommodation in the newly constructed building. 3. The court held that it was a case of criminal waste for the flat to remain vacant, considering the acute housing shortage and the fact that the plaintiff had made out a prima facie case for his claim to the flat. 4. The court held that the trial court had jurisdiction to entertain the suit, as the plaintiff had made out a prima facie case for his claim to the flat and the provisions of section 177 of the Maharashtra Housing and Area Development Act, 1976, did not bar the appointment of a Receiver. 5. The court held that the provisions of section 177 of the Maharashtra Housing and Area Development Act, 1976, did not bar the appointment of a Receiver, as the Receiver was not being appointed to decide the title to the flat but only to take possession of the flat and to manage it until the suit was decided.
Final Decision: The High Court allowed the appeal and appointed a Receiver in respect of the flat. The court also directed the plaintiff to file an affidavit giving an undertaking that he would hand over the possession of the flat to the Receiver in case it turned out that he was not entitled to the relief claimed in the suit.

JUDGMENT - SHARAD MANOHAR, J.:---This appeal from order has got to be allowed just for the asking. The simple facts are that there was a building at Grant Road which was in a dilapidated condition. It was acquired by the Maharashtra Housing and Area Development Authority (hereunder referred to as the "Authority") under section 41 of the Maharashtra Housing and Area Development Act, 1976 (hereinafter the "Act"). The occupants of the old building were entitled, as a matter of right to have the allotment of a suitable flat in the building to be newly constructed in the place of the old dilapidated building. As a matter of fact, under section 94 of the Act, an alternative accommodation is required to be given to the occupants even when the building is to be demolished and while the new building is under construction. But it is really speaking, not necessary to go into all those facts and provisions at this stage. It is enough here to state that admittedly, without the Authoritys active efforts the building itself decided to co-operate with the Authority and it crumbled down. The occupants had to fend for themselves for some roof over their head. The present petitioner who was the plaintiff in the trial Court was one of the occupants of the building. His grievance is that he has not been given alternative accommodation. But, really speaking, even that grievance is somewhat irrelevant at this stage. Point is that admittedly the building has been re-constructed by the Authority and according to the plaintiff, he being one of the occupants of the erstwhile building, he is entitled to allotment of one of the flats in the newly constructed building. For reasons to which I need make to reference, the Housing Board had other views and would not comply with the demand made by the petitioner in that behalf, with the result that ultimately the petitioner had to file a suit in the City Civil Court for declaration that he was entitled to allotment of Flat No. 6 in the said newly constructed building, particularly mentioned in the plaint in the suit. Pending the hearing of the suit, he took out a notice of motion for injunction restraining the Authority from allotting said Flat No. 6 to any other person. Ad interim injunction was granted by the Court. It is the case of the plaintiff that no reply was filed by the Authority to the said notice of motion. Whatever that may be, the fact remains that the said notice of motion was made absolute by the trial Court on 20-11-1981.

2. The above facts are relevant for appreciating the following position, viz., that :---

a) said Flat No. 6 is lying vacant from the date quite some time before 20-11-81 till this date;

b) the plaintiff has made out a prima facie case for succeeding in the suit and for getting allotment of the said flat;

The further position is crystal clear that notwithstanding the housing situation in the city of Bombay where millions of people are painfully smarting under the maddening impossibility of having some veritable roof over their heads and when amongst teeming millions there is person such as the plaintiff clamouring for the flat with at least an established prima facie claim to the same, the flat is allowed by the Authority to remain vacant for years together. At least from 20-11-1981 till this date, the flat is remaining vacant; nobody occupies it and nobody wants to worry about it.

In these circumstances the petitioner-plaintiff took out another notice of motion for appointment of Receiver in respect of the flat and for appointing himself as the Receivers Agent so that he could go into the occupation of the said flat. The petitioners contention is so simple that it has got to be accepted by any Court without the slightest hesitation and without a second thought. His contention is that he is without roof over his head. There is a flat lying vacant vis-a-vis which he has got at least a prima facie case. The flat is as vacant as anybody would want it to be. There is thus an unnecessa

Click Here to Read the rest of this document

Judicial Analysis

1982 Supreme(Bom) 251

IN THE HIGH COURT OF BOMBAYSharad Manohar, J.Syed Khuwaja Syed Ahmed.... Appellant.VersusMaharashtra Housing and Area Development Authority... Respondent. Appeal From Order No. 999 of 1981, decided on 20-9-82.Advocate appeared :K.H. Keswani, for appellant.Smt. C.D. Shenoy, A.G.P., for respondent.

In a situation of acute housing shortage, it is just and convenient to appoint a Receiver in respect of a flat that is lying vacant, especially when the plaintiff has made out a prima facie case for his claim to the flat and it is a case of criminal waste for the flat to remain vacant.

Judicial Analysis