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2019 Supreme(Bom) 629
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Gupte, J.
Aliasgar Razaali Zaboli – Appellant
Vs.
Chief Officer, Mumbai Building Repair and Reconstruction Board and Others – Respondent
Writ Petition No. 755 of 2018
Decided On : 22-04-2019
Rakesh Agrawal, Adv., Chanchal S Sharma, Adv., P.G. Lad, Adv., Ram U Singh, Adv., G.S. Mehta & Associates, Adv.
The main legal point established in the judgment is the interpretation of the term 'occupier' in the context of Regulation 33(7) of DCR, emphasizing the requirement for actual physical possession and entitlement to occupy the old premises.
Headnote:
Occupier - Property Dispute - Maharashtra Housing and Area Development Act, 1976, Section 91(1), Section 94(5), Regulation 33(7) of Development Control Regulations for Greater Mumbai, 1991 - The court discussed the interpretation of the term 'occupier' in the context of Regulation 33(7) of DCR and its application to the allocation of permanent alternative accommodation. It highlighted the requirement for actual physical possession and entitlement to occupy the old premises, emphasizing that the term 'occupier' should not include a person who was in immediate physical occupation but rather the person originally entitled to occupation of the premises.
Fact of the Case:
The case concerns a property dispute over the right to occupy premises in a building undergoing redevelopment. The petitioner challenged an order that declared the legal heir of the original tenant as a co-occupant of the premises, leading to the allocation of permanent alternative accommodation to all three occupants.
Finding of the Court:
The court found that the respondent had adequate documentary proof to support his occupation of the premises and was entitled to be declared as a co-occupant. It held that the officer determining eligibility of occupants under Regulation 33(7) of DCR is not empowered to decide controversies regarding the permanent giving up of occupancy rights.
Issues: The issues revolved around the interpretation of the term 'occupier' in the context of Regulation 33(7) of DCR and the entitlement to permanent alternative accommodation in a redevelopment scheme.
Ratio Decidendi: The court emphasized the requirement for actual physical possession and entitlement to occupy the old premises, stating that the term 'occupier' should not include a person who was in immediate physical occupation but rather the person originally entitled to occupation of the premises.
Final Decision: The petition was dismissed, clarifying that the order would not prevent the petitioner from agitating his rights against the co-occupant before an appropriate forum.
S.C. Gupte, J.
Heard learned Counsel for the parties.
2. This writ petition challenges an order passed by the Chief Officer, Mumbai Building Repair and Reconstruction Board on 25 January 2018.
3. The controversy in this petition concerns the right of Respondent No.3 herein, who is the legal heir of original tenant/occupant of Room Nos.24, 25 and 26 ("premises"), in a building known as Mohammedi Mansion, situated on the plot of land bearing Final Plot No. 400 of TPS IV, Mahim Division, Junction of Gokhale Road (South) and Baburao Parulekar Marg, Dadar (West), Mumbai-400 028. The property is under development under a scheme under Regulation 33(7) of Development Control Regulations for Greater Mumbai, 1991 ("DCR"). Originally, the premises were occupied by one Razaali Gulamhussain Zaboli (Razaali) as a tenant. Razaali expired on 1 October 1995, leaving his widow Munawar and his three sons, i.e. the Petitioner and Respondent Nos.3 and 4 herein, as legal heirs, who were also in occupation of the premises with him. Razaali's widow Munawar passed away on or about 31 August 2006. Subsequently, by a deed of conveyance dated 27 December 2009, the erstwhile owner of the building sold and transferred the building to one M/s Sugee Developers. At that time, in the deed of conveyance, the premises was shown in the name of Razaali. After this conveyance, Sugee Developers proposed redevelopment of the building under Regulation 33(7) of DCR. It is the case of the Petitioner that he was in actual physical possession of the premises as on the date when the scheme was proposed along with Respondent No.4, whilst, Respondent No.3 had shifted to Hyderabad. Respondent No.1-Chief Officer, by his communication dated 30 March 2011, certified only the name of Respondent No.4 herein as occupant of the premises. This was challenged by the Petitioner herein by filing a writ petition, being Writ Petition No.967 of 2012. By its order dated 11 June 2012, this Court disposed of that writ petition directing Respondent No.2 to consider the representation of the Petitioner. When the matter was remitted to Respondent No.1 for a fresh consideration, by his letter/order dated 26 December 2012, Respondent No.1 held the Petitioner and Respondent No.4 herein to be jointly entitled to the benefit of the scheme. The Petitioner was, accordingly, allotted transit accommodation for himself and Respondent No.4. When the matter came up for allotment of permanent alternative accommodation, the developer proposed to allot permanent alternative accommodation in the names of the Petitioner and Respondent Nos.3 and 4. This was objected to by the Petitioner. At that stage, the Petitioner claims to have learnt about an order dated 3 December 2014 passed by Respondent No.1, which was said to be passed behind the back of the Petitioner, wherein Respondent No.1 had wrongly included the name of Respondent No.3 as a joint occupant along with the Petitioner and Respondent No.4. It is the Petitioner's case that when he accepted the joint occupation of the permanent alternative accommodation, he was not aware of the order dated 3 December 2014 passed by Respondent No.1. The Petitioner, after coming to know of the order challenged the same in another writ petition, being Writ Petition No.2106 of 2017. By an order dated 27 November 2017, this Court allowed the writ petition and quashed and set aside the order dated 3 December 2014 and remitted the matter back to Respondent No.1 for a fresh consideration by conducting a proper hearing. The order of Respondent No.1 impugned in the present petition was passed on remand and after hearing all parties. By the impugned order, Respondent No.1 inter alia held that the original tenant/occupant of the premises was late Razaali, father of the Petitioner and Respondent Nos.3 and 4. Respondent No.1 held that Respondent No.3 had the requisite documentary proof of his occupancy of the premises. Respondent No.1 held that occupancy right of Respondent No.
