Tenancy claims must be backed by credible evidence of occupancy prior to specified dates; mere reliance on rent receipts without prior proof does not establish tenancy rights.

JUDGMENT :

KAMAL KHATA, J.

1. By this Petition under Article 226 of the Constitution of India, the Petitioner seeks to quash the impugned Order dated 26^th April 2019, passed by the Additional Chief Secretary of Housing Department in Second Appeal, and to restore the earlier Order dated 9^th November 2015 passed by the Vice President and CEO of MHADA.

2. The Petitioner is the owner and developer of property bearing F.P. No.400, TPS IV, Mahim Division situated at Gokhale Road - South, Dadar - West, Mumbai 400 028 which includes an old cessed building formerly known as ‘Mohammadi Mansion’ (now Sugee Sadan) purchased on 27^th December 2009. The building was fully tenanted at the time of purchase.

3. The controversy pertains to Room No.16-B an enclosed space under a staircase on the ground floor admeasuring 3.39 square metres (36.50 square feet). The issue is whether the Respondent No. 6 is entitled to tenancy rights for this space.

4. The Order under challenge directs MBRRB to recognize Respondent No. 6 as a tenant of Room No. 16-B based on:

i. Rent receipts issued in the name of Razaali Zaboli (Jan–Feb 1999) and in the name of Munnawar Bloor (Jan 2008, Sept 2010, Oct 2010);

ii. MCGM inspection extract for 1995–96 showing Room 16-B as residential with rent of ₹16.50;

iii. BMC assessment of Room 16-B prior to 1995.

5. Besides these documents, the Order also relies upon the list of occupants in Annexure -B to the registered Deed of Conveyance dated 27^th December 2009, executed between the original landlords, Ms. Sherbanoo Mahomed Oomer and the proprietor of M/s. Sugee Developers, wherein the name of Respondent No.6’s mother is shown as occupant of Room number 16-B.

6. The impugned Order sets aside the two concurrent findings of (i) the Vice President and CEO of MHADA dated 9th November 2015, dismissing the Respondent No. 6’s Appeal, and (ii) the Chief Officer, MBRRB rejecting Respondent No.6’s representation seeking eligibility of residential accommodation of Room No. 16-B.

7. Mr. Miskita, challenges the impugned Order on four grounds:

(I) The Government Resolution dated 16^th August 2010.

(II) The documents in support of the claim of tenancy.

(III) The FSI benefit.

(IV) Full OC granted for Sugee Sadan by the BMC on 15^th March 2017.

(I) THE GOVERNMENT RESOLUTION DATED 16TH AUGUST 2010

8. Mr. Aditya Miskita, learned counsel for the Petitioner, submits that the subject property was developed under Regulation 33(7) of the DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI , 1991 (DCR). He contends that the impugned Order has been passed in flagrant violation of the Government Resolution dated 16th August 2010 (GR), which prescribes the parameters and datum line for certification, without considering that the entire building constructed by the Petitioner had received full Occupation Certificate on 15th April 2017 and was handed over to the Society formed on 23^rd August 2017 – nearly two years prior to the passing of the impugned