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2013 Supreme(Bom) 1503
HIGH COURT OF JUDICATURE AT BOMBAY
ROSHAN DALVI, J.
Dattatraya Shankar Karade
Versus
Maharashtra Housing & Area Development Authority & Others
Appeal from Order (St) No. 19239 of 2013
Decided On : 07-08-2013
For the Appellant:S.M. Khaire, Advocate.
For the Respondents:R1, S.P. Thorat, R2, J.P. Patel, Advocates.
Headnote:Maharashtra Housing & Area Development Act, 1976 - Section 94 - Claim for permanent alternate accommodation.
Person, claiming permanent alternate accommodation, must show that he was an occupier of old structure which was vacated. - Consequently the plaintiff must show that he was an occupier of the old structure which was vacated in lieu of which permanent alternative accommodation would be constructed and given by MHADA in the new building free of cost to him.
Maharashtra Housing & Area Development Act, 1976 - Section 94 - CPC, 1908, Order XXXIX, Rule 1 - Grant of Temporary injunction. -
Since balance of convenience is not in favour of plaintiff hence injunction cannot be granted in favour of plaintiff for allotting permanent alternate accommodation to defendants. - It is seen that the correspondence entered into by the plaintiff with MHADA in December 1998 and January, 1999 as also the Society’s letter shown by the counsel on behalf of MHADA of 2003 are evidence to show and suggest that the plaintiff’s occupation in the old tenanted premises was accepted.
However the plaintiff has not produced any separate independent evidence to substantiate his claim of occupation with his mother and along with his family in the suit premises from the inception until the issue of the vacation notice. It is not known why the mother would have wanted to have his name deleted from the ration card.
It is also not known why and how another ration card was issued in the same premises. The plaintiff has only shown the Court a copy of the ration card. That is indeed an old yellowed copy. It is a genuine secondary evidence.
However the evidence of occupation by the plaintiff until the date of the vacation notice would have to be specifically seen.
It is only then that the plaintiff can contend that though he was entitled to obtain transit accommodation along with his sister. he did not obtain it on account of inconvenience an d took up other accommodation in the vicinity. This claim, stated by counsel on behalf of the plaintiff, would have to be shown by the plaintiff. If the plaintiff shows that he was an occupier on the date of the vacation notice, he would be entitled to be put in possession of the new building constructed by MHADA as every occupier would have a right to get such accommodation free of cost under Section 94(5) of MHADA. If not, the plaintiff would only be entitled to a share in the suit premises as an heir of the occupier, his mother.
Of course, the plaintiff claims only a joint entitlement with the other heirs, his sister and brother defendant Nos. 2 and 3. Such a claim can be made upon claiming partition of the property. It would be in the discretion of the Court to grant the plaintiff such share. That share cannot be specifically claimed only by way of handing over possession in the permanent alternative accommodation, given that the plaintiff lives separately with his family consisting of his wife and daughters at least since the vacation notice was issued. Hence balance of convenience cannot be stated to be in favour of the plaintiff. In this case the balance of convenience by MHADA and other needy persons who would be dishoused from the dilapidated building and who would be given transit accommodation cannot be lost sight of.
Maharashtra Housing & Area Development Act, 1976 - Sections 94(1) and 94(2) - Allotment of Transit accommodation.
Allotment of temporary or transit accommodation is required to be given upon humanitarian ground by MHADA. - Temporary/transit accommodation is required to be given upon humanitarian grounds by MHADA as it deems fit under Section 94(1) & (2) of MHADA, which run thus :
"94. Temporary and alternative accommodation to affected occupiers where property is acquired. - (1) Where the Board requires the occupiers of any building to vacate their premises to enable it to construct a new building on the land acquired under this Chapter, the Board shall allot temporary accommodation to such occupiers in any building maintained by it for such purpose, at such places and to such extent as it deems fit. The accommodation, may not be in the same locality or of the same floor area as the premises vacated by the occupier.
(2) If the occupier fails to accept and occupy the accommodation allotted to him within one month from the date of allotment, the responsibility of the Board to provide him with any temporary accommodation shall cease’’.
Consequently a temporary alternate accommodation though a statutory right, being temporary in nature is given only as is convenient and feasible to MHADA. It, therefore, does not require any statutory conditions, obligations or eligibility criteria. Grant or obtaining and availing of temporary accommodation would not entitle the persons who have availed of that facility to be alone entitled to claim permanent accommodation to the exclusion of all other eligible claimants.
Rule. Made returnable forthwith.
1. This appeal relates to the alternate accommodation required by the appellant/plaintiff as well as his sister and brother of the premises constructed by MHADA. The appellant sued MHADA, his sister and brother in respect of the permanent accommodation which had to be given by MHADA. The original premises stood in the name of the grandfather of these siblings. After his death their mother became the tenant. The mother has been issued vacation notice as the occupant. The mother shifted in the transit accommodation along with the sister and brother of the plaintiff. The plaintiff did not shift in the transit accommodation due to inconvenience. The plaintiff has claimed a share in the tenanted premises essentially as the heir of his mother.
2. The relationship between the parties is admitted. The fact that the original accommodation was tenanted to the grandfather is admitted. The fact that the mother became a tenant thereafter is admitted. The fact that she was given vacation notice is also admitted.
3. It is the contention of the plaintiff that when the permanent and alternative accommodation was ready and was allotted on 5th may, 1987 all the heirs of the tenants/occupants, their mother would be entitled to permanent alternative accommodation. It is the contention of the sister defendant No.2/respondent No.2 of the plaintiff (who is the only contesting defendant/respondent) that she would be entitled to permanent alternative accommodation with her brother defendant No.3/respondent No.3 to the exclusion of the plaintiff because the plaintiff did not live in the original premises when it was tenanted as also in the temporary/transit accommodation.
4. Temporary/transit accommodation is required to be given upon humanitarian grounds by MHADA as it deems fit under Section 94(1) & (2) of MHADA, which run thus:
“94. Temporary and alternative accommodation to affected occupiers where property is acquired. –
(1) Where the Board requires the occupiers of any building to vacate their premises to enable it to construct a new building on the land acquired under this Chapter, the Board shall allot temporary accommodation to such occupiers in any building maintained by it for such purpose, at such places and to such extent as it deems fit. The accommodation may not be in the same locality or of the same floor area as the premises vacated by the occupier.
(2) If the occupier fails to accept and occupy the accommodation allotted to him within one month from the date of allotment, the responsibility of the Board to provide him with any temporary accommodation shall cease”.
5. Consequently a temporary alternate accommodation though a statutory right, being temporary in nature is given only as is convenient and feasible to MHADA. It, therefore, does not require any statutory conditions, obligations or eligibility criteria. Grant or obtaining and availing of temporary accommodation would not entitle the persons who have availed of that facility to be alone entitled to claim permanent accommodation to the exclusion of all other eligible claimants.
6. The right of claiming permanent alternate accommodation is distinct and separate. The eligibility criteria for claiming permanent alternate accommodation would be seen under Section 94(5) of MHADA which run thus:
“94. Temporary and alternative accommodation to affected occupiers where property is acquired. –
(5) Subject to the provisions of this section, every occupier, whether or not he accepts temporary accommodation, shall have right to get such accommodation in the new building free of cost. Occupiers of the new building shall be required to form a cooperative housing society under the Maharashtra Cooperative Housing Societies Act, 1960. The ownership of the new building shall then be transferred by the Board in the name of such cooperative housing society of the occupiers”.
7. Consequently the plaintiff must show that he was an occupier of the ol
