Smt. Prabhawati Tokersi Chheda vs Maharashtra Housing & Area Development ...

----------------------------------------------------------------------- S.No. As per record of Floor Room Area Monthly BBR & R Board No. Rent

-----------------------------------------------------------------------

1. Govind Laxman Gr.Fl. 1,2&3 74 sq.m. Not known Mirgal

2. Ramkrishna Sitaram 1st Fl. 1 26 sq.m. Rs.88.32 Latke

3. Mahadev H. Latke 1st Fl. 2 21 sq.m. Not known

4. Krishna Panaji Nanavare 1st Fl. 3 20 sq.m. Not known

5. Kantilal Mohanlal Shah 1st Fl. 4 14 sq.m. Not known

6. Lalji Devji Gala 2nd Fl. 1 26 sq.m. Rs.31.55

7. Vrijlal Parmar 2nd Fl. 2 21 sq.m. Rs.27.00

8. Chandrakant Ghandi 2nd Fl. 3 & 4 30 sq.m. Rs.31.55

9. Smt.Savita S. Barot 3rd Fl. 3 & 4 19 sq.m. Rs.39.71

10. Vithalbhai Parmar 3rd Fl. 2 20 sq.m. Rs.31.55

11. Smt.Prabhavati Chheda 3rd Fl. 1 28 sq.m. Rs.36.50

12. Smt.Savita S. Barot 4th Fl. Kataria 20 sq.m. Rs.21.55

43. Thereafter amongst the other documents, the agreements entered with the tenants are enclosed which include the agreement dated 8th August 1994 annexed to the petition as Exhibit-E. This agreement specifically states in clause (1) that in consideration of the tenant agreeing to surrender their tenancy rights, the landlord agrees to hand over on ownership basis a flat of approximately 256 sq.ft. on 5th floor of Flat No.10 of the proposed building to be constructed on the said plot of land in the proposed scheme of development on the said plot of land. Clause 2 states that the tenant on allotment of the said flat would become a member of the proposed co-operative society. Clause 3 states that the tenants are ready to pay the proportionate construction cost of the said building developed by the landlord. Clause 4 provides that the said surrender of tenancy rights would be effective on the date this agreement is signed and the landlord agrees to hand over possession of the said flat to the tenant as soon as the said building is ready for occupation.

44. Then the three documents of indemnity/affidavits referred to in the reply of respondent No.2 dated 8th August 1994 are enclosed therein. In the first indemnity of 8th August 1994, there is a specific reference to the above referred letter of intent No.R-NOC/F/553/13686 dated 19th November 1992 requiring fulfillment of various conditions and the indemnity states that the developer absolves the respondent No.3 from its responsibility to the extent covered by Chapter VIII of the MHAD Act, which may arise as a consequence of the said NOC for redevelopment. Another affidavit states that the construction will be carried on as per the plans submitted to the BMC and the respondent No.5 will not approach the BMC for issuance of part or full completion certificate and occupation certificate unless arrangements are made to accommodate all the occupiers from the old existing building into the proposed new building. The third undertaking dated 8th August 1994 refers to Condition Nos.1, 2, 3, 4, 5, 6 and 7 from the letter of intent dated 19th November 1992 and accepts all those conditions as binding on him, his legal heirs, assigns and those deriving title through or under him.

45. Then there is further affidavit of 23rd September 1994 affirmed by respondent No.5 to which the final list of tenants is enclosed which is as per the Repair Board and also as per the owner. The list also gives the names of the occupants and is signed at the bottom by respondent No.5. The list is as follows:

LIST OF TENANTS / OCCUPANTS

----------------------------------------------------------------------- S.No. As per record of Floor As per the owner BBR & R Board & Room No.

-----------------------------------------------------------------------

1. Govind Laxman Gr.Floor Chandibai, Legal Heir Mirgal Room as per vacation notice Nos.1,2& 3

2. Ramkrishna Sitaram 1st Floor Ramkrishna Sitaram Latke Room No.1 Latke

3. Mahadev H. Latke 1st Floor Mahadev H. Latke Room No.2

4. Krishna Panaji Nanavare 1st Floor Maruti Krishna Room No.3 Nanavare, as per vacation notice

5. Kantilal Mohanlal Shah 1st Floor Nikhil R. Shah, Room No.4 as per vacation notice

6. Lalji Devji Gala 2nd Floor Tejbai Lalji Gala Room No.1 Legal Heir as per vacation notice

7. Vrijlal Parmar 2nd Floor Vrijlal Parma Room No.2

8. Chandrakant Ghandi 2nd Floor Chandrakant Ghandi Room Nos.

3 & 4

9. Smt.Savita S. Barot 3rd Floor Smt.Savita S. Barot Room Nos.

3 & 4

10. Vithalbhai Parmar 3rd Floor Vithalbhai Parmar Room No.2

11. Smt.Prabhavati Chheda 3rd Floor Smt.Prabhavati Chheda Room No.1

12. Smt.Savita S. Barot 4th Floor Kataria Smt.Savita Kataria.S. Barot

-----------------------------------------------------------------------

sd/

Bankim Dalal

46. The respondent No.5 has thereafter made one more affidavit on the same date and placed it before the Housing Board pointing out that Mr.Shah and Mr.Latke occupying Room No.4 and Room No.2 on the first floor had surrendered their tenancy and the landlord had given those two rooms to Smt.Vinodini Dalal, i.e. the mother of respondent No.5.

47. Then we have on record the final No Objection Certificate issued by respondent No.2 on 1st October 1994. It is also annexed at Exhibit-E to the petition. This NOC also specifically refers to the letter of intent dated 19th November 1992 in the reference column. In para 1, it is stated that the society of 70% of the occupants has to be formed. Para 3 states that the scheme is to be operated with the consent of the tenants. Para 5, 9 and 12 of this NOC are relevant and they read as follows:

"5)The plans of the proposed building duly approved by M.C.G.B. with FSI 2.00 or consumed whichever is more shall be furnished to this office within three months positively from the date of issue of this NOC, failing NOC stands cancelled.

9)There is no surplus area required to be surrendered to the Board since the FSI consumed in the old building is more than 2.00.

12)The entire responsibility to rehouse all the bonafide tenants/ occupants of old bldg. with their occupied equivalent built-up area shall lie with the applicant.

Further if the claims of those tenants/occupants who are staying in Boards transit camp, but their names are not tallying with the list of tenants/occupants submitted by you, are established in future, then it shall be binding upon the applicant to accommodate them in the newly constructed building."

48. Then we have on record the letter dated 18th November 1996 from the architects of respondent No.5 which refers to the NOC dated 1st October 1994 and states that the above work had been completed as per the approved plan, except installation of the lift, and has complied all required conditions which are as follows:

"1. Society has been Registered. The necessary paper is enclosed.

2. Economy rent for transit camp is paid. Receipt is enclosed.

3. Boards expenditure is paid.

Receipt is enclosed."

A request is therefore made to issue the occupation certificate upto four floors. Amongst other documents, a letter dated 24th January 1996 addressed by the Assistant Registrar of Co-operative Societies to the respondent No.5 is enclosed with this letter. The same is addressed to him in his capacity as the Chief Promoter of the proposed Prabhat Co-operative Housing Society. It states that the said name is reserved for the said society and it is permitted to open a bank account in the Mumbai District Central Co-operative Bank Ltd. To this letter, the application for registration of the housing society is enclosed. The application is signed by respondent No.5 as the Chief Promoter. It encloses therewith the resolution electing the Chief Promoter passed in the meeting of the proposed society on 30th October 1995. It contains below it the following 9 names with their signatures as the promoters who were present in the said meeting.

Name of the Promoter Signatures

1. Govind Laxman Gavi sd/-

2. Ramkrishna Sitaram Latke sd/-

3. Nikhil R. Shah sd/-

4. Tejbai Lalji Gala sd/-

5. Vrajlal P. Parmar sd/-

6. Chandrakant Gandhi sd/-

7. Prabhavati It. Chedda sd/-

8. Vithaldas Parmar sd/-

9. Savitaben S. Barot sd/-

For our purpose, what is relevant to note is that the name of the petitioner appears at Sr.No.7 in this list and she has signed against her name.

49. Then, as pointed out earlier, in Para 7 of the reply of respondent No.2 to the main petition, there is a reference to a police complaint and the letter of the Chief Officer dated 14th December 1999 (which should be 4.12.1997) to the Senior Police Inspector. In fact what we find from the file is that there is no such letter of 4th December 1999 but it is a letter dated 4th December 1997 addressed to the Senior Police Inspector concerned. That is in response to the complaint made to the police officer of V.P. Road Police Station and the query made by him. As stated in the affidavit, the said letter states that pending the inquiry, the Executive Engineer (Building Proposal) of BMC was being intimated not to grant the Occupation Certificate. What is relevant to note is that this letter refers to inspection carried out at the site prior to the issuance of this letter by the concerned Divisional Executive Engineer. In the letter of the Divisional Executive Engineer dated 1st September 1997, it is reported to the Resident Executive Engineer as follows:

"Sir,

P.1)With reference to above it is to inform you that the said newly reconstructed bldg. was visited by the undersigned alongwith concerned Dy.Eng. on 4.9.97 & 11.9.97 and observed that all the tenants in the said bldg. are non occupied at present.

P.2)However as per name Board observed to be displayed at the entrance door of tenants during inspection on 4.9.97 and 11.9.97, following names appear.

1) Gr.fl. - No name board displayed.

2) 1st fl.- Shri Peerchand Bhansali

3) 2nd fl.- Smt. Asha P. Jain, and

Shri Prakash S. Jain

4) 3rd fl.- Jamatraj B. Shah, and Ramesh J. Shah

5) 4th fl.- P.M. Mehta, and S.P. Mehta

6) 5th fl.- Ramesh P. Bhansali

7) 6th fl.- Peerchand M. Bhansali

During inspection details regarding allotment of tenements in the above bldg.

could not be ascertained as no responsible occupant or representatives are not available on the bldg. premises.

Also it may be pointed out that the names appearing on name plates displayed at the entrance of respective tenement of the above reconstructed ldg. do not tally with the names of original tenants list of above bldg."

Thereafter it appears that the Chief Officer has made inquiries only at the transit camp and it is noted that most of the tenants are no longer there. Then the reply dated 4th December 1997 is sent, but no other approach seems to have been made with respondent No.5 or to contact the erstwhile tenants.

50. The facts emerging from the above narration:

The Bhandari building having become old and dilapidated was required to be pulled down sometimes in 1979 since it became dangerous for occupation. Thereafter respondent Nos.1 to 3 rehabilitated the tenants in the transit camp created for that purpose. The petitioner was undoubtedly a tenant of the building before it was pulled down. That time it was owned by Smt.Kalavati Desai. Initially respondent Nos.1 to 3 wanted to reconstruct the building either on their own or through a Co-operative Society of the tenants but those efforts did not materialise. In 1992 the landlord of the building Smt.Kalavati Desai and others gave a proposal to reconstruct the property on the terms as required by respondent Nos.1, 2 and 3 and, therefore, she was issued a letter of intent on 19th November 1992. The letter of intent clearly stated that all the occupants will have to be rehoused into the newly constructed building. It should become a Co-operative Society of those tenants, provided of course, 70% of the tenants agree to become members thereof. The tenants will have to contribute to the cost of construction of the building. If a tenant however is not willing to do that, he will not be forced to contribute and he will have to be continued as a tenant on appropriate terms. In the letter of intent it was made clear that FSI-2 would be available for reconstruction, or more if the consumed FSI was more. In the instant case, the consumed FSI was more and, therefore, to accommodate all the tenants later on, a plan as submitted by the landlord, was approved by respondent Nos.1, 2 and 3 by giving their N.O.C. for reconstruction. That was for construction of a building of ground plus six floors and a part construction on the 7th floor.

51. It so happened that in June 1994 the ownership of the property changed the hands and respondent No.5 purchased it from Smt.Kalavati Desai and others. The same letter of intent of 1992 was followed up by respondent No.5. He agreed to all the terms as contained in that letter of intent specifically by writing through his Architects and gave specific undertaking that he will abide by all those terms and conditions. It is on this footing that the N.O.C. was given by respondent Nos.1, 2 and 3 on 1st October 1994 and later on the I.O.D. by respondent No.4 for ground plus six floors on 25th January 1999. The terms of the letter of intent and the N.O.C., as accepted by respondent No.5, are very clear. The reconstruction was for rehousing the tenants of the old building. If at all any body surrendered the tenancy, the landlord was required to revert back to respondent Nos.1, 2 and 3 and inform them and it was for respondent Nos.1, 2 and 3 to put in another needy tenant from their transit camp. In any case, it is very clear that respondent No.5 could not put in any occupant without the permission of respondent Nos.1, 2 and 3. He understood this very clearly as seen from the information given to respondent Nos.1, 2 and 3 in September 1994 that Mr.Shah and Mr.Latke, tenants of the 1st floor, had surrendered their tenancy and in their place, Smt.Vinodini Dalal, mother of respondent No.5 was inducted as a tenant. Inasmuch as no dispute is raised by respondent Nos.1 to 3 to this, it can be taken that her tenancy of these two rooms was accepted. However, there is nothing to indicate on record as to what happened to the other original tenants whose names continued on the record of respondent Nos.1, 2 and 3 until 1995. It is very pertinent to note that in the meeting of the Promoters called by respondent No.5 as the Chief Promoter on 30th October 1995 to form a Co-operative Housing Society, the names of as many as 9 tenants figured as attending the first meeting of the proposed Society. On that form their signatures appear including that of the petitioner and this form is forwarded to respondents Nos.1 to 3 by the Architect of respondent No.5 as recently as on 18th November 1996.

52. It is also material to note that when the Architects of respondent No.5 sought N.O.C. on 6.9.1994 they forwarded the agreements dated 8th August 1994 entered into with all the tenants. They are all stereo-type and the petitioner also entered into with one such agreement for a flat of 256 sq.ft. on 5th floor being flat No.10. It is on the strength of the compliance of various conditions of the letter of intent dated 19.11.1992 that the N.O.C. was sought by the application dated 6.9.1994. Respondent No.5, therefore, cannot go behind the N.O.C. granted on 1.10.1994 which was on the basis of his undertaking that he will make available flat No.10 on 5th floor of 256 sq.ft. to the petitioner. Later-on when the building was ready, the Architects of respondent No.5 sought the recommendation for occupation certificate by their letter dated 18th November 1996. Along with that application, the letter from the Assistant Registrar of Co-operative Societies granting permission to open account and reserving the name of Prabhat Co-operative Housing Society was also forwarded. Along with that letter a form containing the minutes of the first meeting of the Promoters held on 30th October 1995 was also forwarded and one of the nine signataries thereto is the petitioner. It is on this footing that the occupation certificate has been recommended and later on granted in part by respondent No.4-Municipal Corporation. Respondent No.5, therefore, cannot go behind these letters, representations, assurances and the commitments made by him through these communications.

53. Now, what is material to note is that the original agreement of 8th August 1994 provided payment of proportionate construction cost of the building developed by the landlord. The agreement of 12th January 1995 recorded that respondent No.5 had agreed to give an area of 300 sq.ft. free of cost and for the additional 200 sq.ft., the actual construction cost will be paid by the petitioner. It is also stated in Clause-4 of this agreement that the tenancy of the room will continue till the petitioner is put back in vacant possession of the flat and on that date it will be converted into ownership. The petitioner claims to have made payment of Rs.10,000/- each in January 1996 and May 1996. It is true that the assertion of the petitioner in that behalf came for the first time when she filed Suit No.812 of 1997 in February 1997. However, the respondent No.5 took nearly two years to file his reply to the Notice of Motion taken out therein and he filed it in January 1999. In that reply, he accepted that such an amount of Rs.20,000/was received but for the first time contended that although the payment was made by a Pay Order, the petitioner received back the money in cash. Again, it is at that time in January 1999 that respondent No.5 for the first time stated that the agreement of 12th January 1995 was entered into because of the force and coercion exerted by the husband of the petitioner. It is also stated for the first time that the words "flat on the 6th floor" were added into this agreement by the petitioner and in that way, the agreement was fabricated.

54. Now, it is material to note that respondent No.5 had undertaken all throughout that he was bound to rehabilitate all the tenants in the newly constructed building. All such written undertakings are given by him to respondent Nos.1, 2 and 3. He sought the N.O.C. on that footing. He knew that if any body surrenders the tenancy he had to inform respondent Nos.1, 2 and 3 and that is how he informed respondent Nos.1, 2 and 3 through an affidavit made in September 1994 that Mr.Shah and Mr.Latke had surrendered their tenancy. There is no such information given with respect to any other tenants that they have surrendered their tenancy. As per the record of the Housing Board and as per the papers submitted by respondent No.5 to them as recently as on 18th November 1996 he recognised that the petitioner had a right to come back into the tenement in the newly constructed building of Society. This is because on that date his Architects have made the application for the occupation certificate forwarding the papers of the proposed Society. What is material to note is that admittedly the payment of Rs.20,000/is received in January and May 1996 and that is in pursuance of the agreement of January 1995. If in fact no such payment was made and if the agreement was forced upon respondent No.5, he should have brought to the notice of respondent Nos.1, 2 and 3 or lodged a Police Complaint. He submits that he was not given any copy of the agreement but he does not dispute having signed and it is his assertion that amount of two Pay Orders of Rs.20,000/- was taken back in cash. If that had really happened, it would have been recorded some where. As against that, we have the case of respondent No.5 that some other six tenants also surrendered their tenancy. As pointed out earlier, when Mr.Shah and Mr.Latke surrendered their tenancy, necessary information was given by respondent No.5 to respondent Nos.1, 2 and 3. There is nothing on record in this behalf regarding surrender of other tenancies. So, we have no source to know as to what happened to other tenants. It is quite possible that they are also in the dark. However, as far as the petitioner is concerned, she had been consistently following her claim to this tenement and when no particulars are given by respondent No.5 as to what happened to these other tenants, on the background of his undertaking to accommodate all of them given to the Housing Board, it is not possible to accept the submission that the petitioner forced the agreement of 12th January 1995 on respondent No.5. It is the case of the petitioner that her husband is a heart patient. It is no where stated that the petitioner brought any hirelings or gundas to force such agreement. On the other hand, it is clear that respondent No.5 has inducted outsiders in place of the other tenancies. It appears to be more probable that he wanted to do the same thing to the petitioner rather than the petitioner doing any such wrong thing to respondent No.5. It is not possible to accept any such explanation by respondent No.5 which, on the face of it, is implausible.

55. Submissions on behalf of the petitioner :

Ms.Purohit, learned Counsel appearing for the petitioner, therefore, submitted that under the scheme of the Act, respondent Nos.1, 2 and 3 had taken it on them to protect the tenants of the dilapidated buildings. Respondent No.5 was essentially acting as agent of respondent Nos.1 to 3 under Section 79(2) of the MHAD Act and, therefore, a direction ought to be issued to respondent Nos.1, 2, 3 and 5 to place the petitioner in possession of flat No.10 on the 5th floor. In her submission, the agreement made in the year 1994 was supplemented by the agreement of 12th January 1995. The petitioner had made further payment of Rs.20,000/- for the additional space and if necessary, she was prepared to pay further amount as would be determined by respondent Nos.1, 2 and 3. She, however, cannot be made to suffer any further by being kept out of the tenement which is lawfully due to her. Ms.Purohit relied upon a judgment of the Constitution Bench of the Apex Court in the case of Calcutta Gas Company (Proprietary) Ltd. State of West Bengal & ors. . In that matter, the Apex Court held that Article 226 confers a very wide power upon the High Court to issue directions and writs for enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. The Court held that persons other than those claiming fundamental rights can also approach the High Court seeking the relief thereunder. Ms.Purohit placed into service the dicta of Fazl Ali, J. in another Constitutional Bench judgment of the Apex Court in the case of Charanjit Lal Chowdhary vs. The Union of India & ors. . In Para-18 thereof, the learned Judge observed "Article 14 of the Constitution lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all beneficial legislation." Ms.Purohit also placed into service the approach recommended by Krishna Iyer, J. in the case of State of Kerala vs. Kumari T.P. Roshana & ors. wherein the learned Judge emphasized the necessity of adopting an affirmative approach so that the grievance is redressed.

Arguments on behalf of respondent No.5:

56. Ms.Sidhwa, learned Counsel appearing for the respondent No.5, submitted that the High Court would not ordinarily entertain the writ petition to enforce a contractual right particularly when an efficacious alternate remedy was available. She submitted that the agreement of 1994 and in any case the agreement of January 1995 were essentially a matter of contract between the petitioner and respondent No.5. According to the petitioner, she was a tenant of the property and if that was so her remedy was to approach the Court of Small Causes under the Bombay Rent Act but in any case, having approached the City Civil Court, she had availed of another remedy. Without waiting for a decision thereon, she withdrew the suit and has come in writ jurisdiction. This should not be permitted. She relied upon the observations of the Apex Court in the case of State of Himachal Pradesh vs. Raja Mahendra Pal & ors. this behalf. The Apex Court held in that matter that "the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the encorcement of any fundamental right but not for mere contractual rights arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking that extraordinary writ jurisdiction of the Court". It is however material to note what the Court has added immediately thereafter - "This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of the special circumstances are required to be noticed before the issuance of the direction by the High Court while invoking the jurisdiction under the said Article." Ms.Wadhwa further relied upon a judgment of the Apex Court in the case of Durga Prasad vs. Naveen Chandra & ors. wherein also the same approach was adopted. It is however material to note that in the facts of that case a civil court had declined to set aside a decree under Order IX Rule 13 of the Code of Civil Procedure and instead of filing a revision a writ petition under Article 226 of the Constitution of India was resorted to. She then submitted that when the disputed questions of facts were involved and particularly with respect to title, they could not be satisfactorily gone into a writ petition. She relied upon the ratio in the case of State of Rajasthan vs. Bhawani Singh & ors. reported in 1993 Supp. (1) S.C.C. 306 and the case of Jai Singh vs. Union of India & ors. in this behalf.

57. Objections on behalf of respondent No.7 :

Mr.Abhyankar, learned Counsel appearing for respondent No.7, raised various objections such as delay in filing of the petition, non-joinder of some of the parties supposed to be nencessary parties, abandonment of the claim, questions of facts, res judicata and non-permisibility of exercise of writ jurisdiction for enforcing private contracts.

Mr.Abhyankar submits that under the agreement of January 1995 possession was to be given by the end of December 1995. Thus the petitioner had a cause of action on 1st January 1996 itself. She, however, chose to file a civil suit in the meanwhile in February 1997 and wrote to respondent Nos.1, 2 and 3 for the first time on 5th April 1999. The petition has been filed thereafter on 21st June 1999. Therefore, according to him, the petition suffers from delay and laches. Then again, as far as respondent No.7 is concerned he was very much joined in the suit filed in February 1997 but although the writ petition was filed in June 1999, respondent No.7 was joined therein only when Notice of Motion No.262 of 2001 was taken out on 27th August 2001. Thus, there is a delay in joining respondent Nos.7 (and 6 also) who would be affected if the petition is entertained. Mr.Abhyankar relied upon the observations of the Apex Court in Paras 7 to 11 in the case of M/s.Tilokchand Motichand & ors. H.B.Munshi, Commissioner of Sales Tax, Bombay & ant. . In Para-10 of that judgment the Court observed that when it comes to writ petition utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. It is observed in Para-11 of this judgment, which we would say is material for our purpose and which is as follows:-

" Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Art.32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose. "

The same judgment is quoted with approval and elaborated in the other judgments relied upon by Mr.Abhyankar which are (i) R.S. Deodhar & ors. vs. The State of Maharashtra & ors. , (another Constitution Bench judgment wherein the court refused to accept the objection of delay) (ii) M/s.Dehri Rohtas Light Railway Company Ltd. vs.District Board, Bhojpur & ors. and

(iii) N.L.Abhyankar vs. Union of India & ors. reported in 1995(1) Maharashtra Law Journal page 503.

58. Non-joinder of parties :

Mr.Abhyankar submitted that as far respondent No.7 is concerned, he was joined in Suit No.812 of 1997 as defendant No.2. Yet the petitioner did not join him as respondent in the present petition until August 2001 when he (along with respondent No.6) was joined in Notice of Motion No.262 of 2001 and then in the writ petition. He submitted that as per the agreement entered into by respondent No.5, flat No.10 was allotted to Mr.Kamlesh, son of respondent No.5, and he has not been joined as a respondent. Then he submitted that alternatively the petitioner is claiming any other flat in the building. That being so, other allottees ought to have been joined as respondents. He next submitted that since the concerned flat had been mortgaged to Union Bank by respondent No.7 and since Meena Metal Impex had purchased the property in auction they also ought to have been joined as respondents. Not joining them will render the order to be passed infructuous.

59. Abandonment Mr.Abhyankar then submitted that earlier the petitioner filed Suit No.812 of 1997. She had sought specific performance of the agreement of 12th January 1995 which was concerning flat No.11 on 6th floor. In that suit, she had not pressed for any relief on the basis of the agreement of August 1994 for flat No.10 on the 5th floor which she was claiming now. Thus, she had given up the claim for this flat on the 5th floor and she could not be permitted to claim it now. Besides, when the petition was admitted, initially she was satisfied with the order that one flat be kept vacant for her or for that matter withthe subsequent order, that the flat on the 8th floor be reserved for her. All this indicates abandonment of the present claim for the flat on the 5th floor. Mr.Abhyankar submitted that as contended by Ms.Sidhwa, there were disputed questions of facts also. He submitted that execution of the agreement of 12th January 1995 was disputed by respondent No.5. That being so, in writ jurisdiction, it should not be enforced. The validity and enforceability of that agreement will have to be first decided on evidence and until then the writ jurisdiction cannot be resorted to. He relied upon the judgment of the Apex Court in the case of Krishan Lal Gupta & ors. vs. Adhishashi Adhikari & ors. in this behalf wherein the court held that civil suit instead of writ would be proper remedy.

60. Effect of withdrawal of earlier Suit :

Mr.Abhyankar has led great emphasis on the fact that the earlier Suit No.812 of 1997 was withdrawn unconditionally without even a liberty to institute fresh proceedings. In his submission the present petition would, therefore, be barred under the provision of Order 23 Rule 1(4) of the Code of Civil Procedure. He relied upon the judgment of the Apex Court and particularly the observations in Paras 7 and 9 in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior & ors. . In that judgment, the Apex Court held that the principle underlying Order 23 Rule 1 was founded on public policy though it was not the same as the rule of res judicata. He referred to another judgment of the Apex Court in the case of M/s.Upadhyay & Co. vs. State of U.P. & ors. on Order 23 Rule 1 of C.P.C. In Paras 12 and 13 thereof, the Court referred the judgment in Sarguja Transport (supra) and recorded that the rule was meant principally for suits but very often a tendency was seen that when the Court was against the petitioner in writ, the writ petition was withdrawn and then suit was filed. Such practice was deprecated in that judgment.

61. Non-enforceability of private contracts in writ:

Mr.Abhyankar lastly submitted that the two agreements and particularly the second one of January 1995 was a private contract between respondent No.5 and the petitioner and the writ jurisdiction could not be allowed to be utilised for enforcement thereof. In his submission, respondent No.5 could not be considered as an agent of respondent Nos.1, 2 and 3 and the suit for specific performance was the only proper remedy. He relied upon the judgment of the Apex Court in the case of Divisional Forest Officer vs. Bishwanath Tea Co.Ltd. . In that matter, the Apex Court held that if there was a statutory provision and the same was incorporated in a lease or contract which will become a part of the terms of that lease or contract then it will lose the statutory character. Enforcement of such a lease would ordinarily be cognizable by the Civil Court. In this behalf, he relied upon the judgment of the Apex Court in the case of Bareilly Development Authority & anr. vs. Ajai Pal Singh & ors. also (although the judgment is regarding right of development authority to alter the terms of allotment of houses). Mr.Abhyankar lastly submitted that respondent Nos.6 and 7 were bona fide purchasers of their flats. They were equally deceived by respondent No.5 and they should not be made to suffer any further having spent the money to purchase the flats and thereafter also to buy the property in auction. He, therefore, submitted that at the most a relief be granted to the petitioner with respect to the flat on the 7th floor or on the 8th floor as and when it is developed but not against the flat No.10 on the 5th floor which was in fact sold by respondent No.5 to Kamlesh Bhansali, son of respondent No.7.

62. Rights of the tenants of buildings demolished on account of having become dilapidated:

As far as the rights of the tenants are concerned, prior to the enactment of the Rent Act, the view taken was that if a building became dilapidated and collapsed due to the passage of time, the tenancy also came to an end. The Bombay Rent Act, 1947 made a significant change in this position. Section 13 of this Act provided for the ground on which a landlord may recover the possession of the premises by obtaining a decree for possession from the concerned Court. Otherwise the tenant in the areas covered by the said Act would not be evicted from the tenanted premises. Section 13(1)(hh) made a provision that the landlord may recover the possession of the premises consisting of not more than two floors where they are reasonably and bonafide required by the landlord for the purposes of demolishing the building and the demolition is to be made for erecting a new building.

This section 13(1)(hh) is to be read with sub-sections 3A and 3B of the said section. Sub-section 3A provided that such a decree for eviction will not be passed unless the landlord produces the certificate granted by a certain Tribunal under sub-section 3B and gives an undertaking as contained in sub-section 3A with respect to the area to be provided in the new building and the time frame for the beginning and completion of the work. The above referred sections 13(1)(hh) and sub-section 3A and 3B read as follows:

"13. When landlord may recover possession.-

(1) Notwithstanding anything contained in this Act but subject to the provisions of section 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied -

that the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished.

Explanation.- For the purpose of this clause, premises shall not be deemed to consist of more than two floors by reason that on the terrace of a building there are one or more of the following structures that is to say, tower-rooms, sitting-out-rooms, ornamental structures, architectural features, landings, attics or one or more rooms of whatsoever description (such room or rooms, being in the aggregate of an area of not more than one-sixth of the total area of the terrace)."

"(3A). No decree for eviction shall be passed on the ground specified in clause (hh) of sub-section (1), unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3B) and gives an undertaking,-

(a) that the new building to be erected by him shall subject to the provisions of any rules, by-laws or regulations made by a local authority, contain not less than two times the number of residential tenements, and not less than two times the floor area, contained in the premises sought to be demolished;

(b) that the work of demolishing the premises shall be commenced by him not later than one month, and shall be completed not later than three months, from the date he recovers possession of the entire premises;

and

(c) that the work of erection of the new building shall be completed by him not later than fifteen months from the said date:

Provided that, where the Court is satisfied that the work of demolishing the premises could not be commenced or completed, or the work of erection of the new buildings, could not be completed, within the time for reasons beyond the control of the landlord, the Court may by order for reasons to be recorded extend the periods by such further periods, not exceeding three months at a time, as may, from time to time, be specified by it, so however that the extended period shall in each case not exceed twelve months in the aggregate.

(3B) (a) For the purposes of sub-section (3A), the State Government may from time to time constitute a Tribunal consisting of such persons and for such local area as it thinks fit.

(b) The Tribunal constituted under clause (a) may grant a certificate after being satisfied that-

(i) the plans and estimates for the new building have been properly prepared;

(ii)(deleted)

(iii) the necessary funds for the purpose of the erection of the new building are available with the landlord;

and

(iv) such other conditions as the State Government may by general or special order specify, have been satisfied.

(c) The proceedings before the Tribunal shall be in the manner as may be prescribed by rules made by the State Government in this behalf."

63. The above referred section 13(3B) had initially a sub-clause (3B)(ii) which came to be deleted by Bombay Act No.61 of 1953. That sub-clause read as follows:

(ii)the plans provide that the new building shall include tenements equivalent to the tenements which are proposed to be demolished. For the purpose of this paragraph, a tenement shall be deemed to be equivalent if the floor space of the tenement is not greater or less than the floor space of the corresponding tenement proposed to be demolished by more than ten per cent."

Thus prior to the above deletion, there was a specific responsibility cast on the landlord to approach the Tribunal for the required certificate and the Tribunal had to see to it that the plans for the new building will include tenements equivalent to tenements which were proposed to be demolished. The right to demolish this ground plus two storey building was further subjected to the restrictions under sections 17A, 17B and 17C of the Act, which were introduced by Bombay Act No.53 of 1950. Section 17A provided for recovery of possession for demolishing the building. Section 17B gave a right to the tenant to give notice to the landlord of his intention to occupy the tenement in the new building and section 17C casts a responsibility on the landlord to intimate to the tenant the date of completion of the building whereupon the tenant is expected to occupy the tenement within certain time.

64. In view of the deletion of sub-clause (ii) of sub-section 3B, a question arose as to whether after the completion of the building, the tenant was entitled to the tenements equivalent to the tenements in the demolished building. In Merwanji v. Antelo reported in 1963 M.L.J. 582, a Division Bench of this Court observed in para 9 of the judgment as follows:

"9..... If the Court finds that the landlord is so constructing his building that the tenements cannot be suitable to the tenants intended to be evicted, the Court would be entitled to hold that the requirements of the landlord are not reasonable and bona fide. This inference is justified if one considers the whole scheme of the Act which does not show that the rights that are given by the Act to the tenants are not intended to be illusory. It is true that the undertaking to be given is that the new premises shall not contain "not less than two times the number of residential tenements and not less than two times the floor area". Yet the intention is clear that as far as possible the tenants rights should not be prejudiced and that subject to the rules of the Municipal Corporation within whose area the proposed building is to be built, the floor area of the tenement to be allotted to the tenant should be similar to the area from which the tenant is being evicted. This construction is supported by the provisions of sections 17, 17B and 17C in which care is taken to safeguard the tenant in all possible respects. The only object in omitting sub-clause (ii) of sub-section (3B)(a) of section 13 was to make matters consistent with modern ideas of residential flats and not to give the owner of the building a free hand. "

65. Thus the position was this-wise that if the tenanted buildings of ground plus two storeys became dilapidated and were required to be demolished, the landlord could do that provided of course the tenant is rehoused in the new building by providing an almost equivalent space. The Bombay Rent Act was repealed and replaced by the Maharashtra Rent Control Act, 1999 which came into force from 31st March 2000. Section 16(1) of the New Act is corresponding to section 13(1)(hh) of the Bombay Rent Act and sections 19, 20 and 21 of the new Act are corresponding to the provisions contained in sections 17A, 17B and 17C of the earlier Act. In the new section 16(1), the limit of two storeys has been removed. The new section 16(1)(i) reads as follows:

"16. When landlord may recover possession.-

(1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(i) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished."

66. The rights of such tenants for accommodation in the new building under the earlier Act came up for consideration before a Single Judge of this Court in Sundari v. Shaikh Mohamed reported in 1989 M.L.J.

66. In para 20 and 22 of that judgment, the learned Judge held as follows:

"20. ...... what is significant is that under the scheme of the Act, it is not that the erstwhile tenancy comes to an end on the landlord filing a suit under section 13(1)(hh). In law no tenancy comes to an end when a landlord institutes a suit under section 13(1)(hh). The scheme of section 13(1)(hh) together with the procedure contemplated in that behalf under section 13(3)(A) and section 13(3)(B) of the Act is to enable the landlord to develop the property while it is permissible under the law, and in such an event to give necessary facility and for that purpose to recover possession from the tenant concerned, with an assurance that on completion of the new building the tenant shall be rehabilitated as provided under the law. That is contemplated under sections 17A, 17B and 17C of the Act."

"22. ...... Till such time, the tenant gives notice under section 17B of the Act, his tenancy remains in abeyance. Once such notice is given, the same becomes enforceable as and when the new building is completed. In the present case, the landlord has also given an undertaking that they would give possession of a new tenement to the tenant. In view of this legal position, the landlords are bound to give the premises back to the tenant on the old terms and conditions as provided under the statute but with a right that the rent shall be at a particular figure which the parties agree as proper and reasonable. There is no new tenancy in a situation of this type. It is the statute that has brought about this relationship, the object being to sustain and continue the erstwhile lease in respect of the new tenement assigned to him by the landlord."

67. As noted above, although a provision for the protection of the tenants of dilapidated buildings was made in the Bombay Rent Act, it was restricted to the buildings having ground plus two storeys only until the Maharashtra Rent Control Act, 1999 came into force on 31st March 2000 and the limit of two storeys was removed. In the meanwhile, the problem of large number of houses collapsing in Greater Bombay every year had necessitated the evacuation of persons and caused a considerable loss to the lives and properties. The State Government and the Municipal Corporation of Greater Bombay were anxiously concerned with this situation. It was felt necessary to have a suitable legislation for preventing house collapses and salvaging dilapidated buildings and reconstructing them wherever necessary and to provide for levy of an additional cess to meet the expenditure in this behalf. The State Government therefore came up with the Bombay Building Repairs and Reconstruction Board Act, 1969 which came into force from 31st December 1969. The Act provided for levy of a cess in a particular manner on the tenanted properties in the city of Bombay and to utilise the said fund for undertaking structural repairs to buildings which were in ruinous condition and which were likely to fall and also to reconstruct those buildings which were required to be demolished. The tenants of the demolished buildings were to be accommodated in the transit camps in the meanwhile and subsequently in the buildings when reconstructed. This Act was subsequently repealed when Maharashtra Housing and Area Development Act came to be passed in the year 1976. Chapter VIII of this Act made a provision for repairs and reconstruction of dilapidated buildings. Section 76 thereof laid down the duties relating to the repairs and reconstruction. Section 77B of the Act gives a special power to the Mumbai Board to get the tenements vacated and to shift the occupants to the alternative temporary accommodation. The said section 77B reads as follows:

"77. The Board, in the exercise of its powers, performance of its duties and discharge of its functions under this Chapter may-

(a).....

(b)cause any building proposed to be structurally repaired or reconstructed or demolished to be vacated if so considered necessary, within a specified period, and take or cause to be taken such steps and use or cause to be used such force as may be reasonably necessary therefor.

Where any such building or part thereof is caused to be vacated, the Board shall allot to the occupiers who are dishoused or required to vacate their premises temporary accommodation in any building maintained by the Authority at such place and to such extent as it deems fit; and the relevant provisions of this Chapter shall mutatis mutandis apply to such occupiers."

68. Section 79 of the Act provides for undertaking the repairs and reconstruction and sub-section (2)(a) provides for handing over such work to any other agency. This section 79 reads as follows:

"79. (1) The Authority may, on such terms and conditions as it may think fit to impose, entrust to the Board the framing and execution of schemes for building repairs or for reconstruction of buildings or for housing and rehabilitation of dishoused occupiers, whether provided by this Act or not, and the Board shall thereupon undertake the framing and execution of such schemes as if it had been provided for by this Act.

(2) The Board may, on such terms and conditions as may be agreed upon and with the previous approval of the Authority -

(a) hand over the execution under its own supervision of any building repairs scheme, building reconstruction scheme, or dishoused occupiers housing scheme to a Municipal Corporation or to a co-operative society or to any other agency recognised for the purpose by the Board, as it may deem necessary, and

(b) transfer by sale, exchange or otherwise in any manner whatsoever any new building constructed on any land acquired under this Chapter to any co-operative society, if it is formed by all the occupiers, or to apartment owners for the purposes of the Maharashtra Apartment Ownership Act, 1970 (the apartment owners being all such occupiers)."

(Underlining supplied)

69. Section 91(5)MAHARASHTRA HOUSING AND AREA DEVELOPMENT ACT, 1976~^ of the Act provides that the construction is to be carried out as per the No Objection Certificate to be given by the Board. This section 91(5) reads as follows:

"91.(5) Where the whole building collapses or is rendered uninhabitable, and is, therefore, not capable of being repaired and rendered fit for habitation, and the property is not acquired under sub-section (3), then, no plan for erecting any new building on land on which such building was standing shall be sanctioned by the Mumbai Corporation unless a no objection certificate from the Board has been produced along with such plan for erecting such building."

(Underlining supplied)

70. Section 94(5) of the Act provides for the right of such tenants/ occupiers to get accommodation in the new building whether or not he accepts temporary accommodation. This section 94(5) was replaced by sub-sections (5) and (6) by Maharashtra Act No.16 of 1998 which came into force on 4th May 1998. The old section 94(5) reads as follows:-

"94.(5) Subject to the provisions of this section, every occupier, whether or not he accepts temporary accommodation, shall have a right to get such accommodation in the new building or in such other building maintained by the Authority, and on payment, of such rent service charges, hire purchase instalment or, as the case may be, sale price and subject to such other terms and conditions,as the Board may determine. If any 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 accommodation shall also cease."

The new Sections 94(5) and 94(6) read as follows:-

94(5) Subject to the provisions of this section, every occupier whether or not he accepts temporary accommodation, shall have a right to get such accommodation in the new building free of cost. Occupiers of the new building shall be required to form a co-operative housing society under the Maharashtra Co-operative Societies Act, 1960. The ownership of the new building shall then be transferred by the Board in the name of such co-operative housing society of the occupiers.

(6) If any occupier of any new building, after accepting and occupying the accommodation allotted to him, fails to become a member of the co-operative housing society formed by the occupiers of such building within a period of three months from the date of allotment or the date specified by the Board, the right of such occupier to get such accommodation shall stand forfeited and the occupier who is occupying the new accommodation shall be liable for eviction and the responsibility of the Board to provide him any accommodation shall cease."

71. The provisions of section 44 of this Act providing for basis of determination of the amounts for acquisition of lands in municipal areas came to be challenged on the touchstone of Articles 14, 19 and 31 of the Constitution of India and the Apex Court in State of Maharashtra v. Basantibai protected the same on the touchstone of Article 31C. Article 31C being a law giving effect to the policy of the State secured the principles laid down in Part IV of the Constitution. The Court observed in para 14 as follows:

"14..... The High Court erred in taking a very narrow view of the objects of the Act and the functions of the Authority under it. We are satisfied that the Act is brought into force to implement the directive principle contained in Art. 39(b) and hence even if there is any infraction of Art.14 it is cured by Art.31C which is clearly attracted to the case."

(Underlining supplied)

72. Section 185 of the MHAD Act provides for making regulations for all or any of the matters which have to be or may be prescribed by regulations under the provisions of the Act. The Maharashtra Housing and Area Development (Estate Management, Sale, Transfer and Exchange of Tenements) Regulations, 1981 are framed under this power and they applied to the estate management, sale, including transactions in the nature of sale by different tenants transferring and exchanging the premises, not being the premises used or to be used for office or an undeveloped site and they apply in relation to the premises of the Authority in the whole of the State except as provided in Chapter VIII of the Act. Chapter VIII of these Regulations contains a provision relating to the estate management of the Authority for the purposes of Chapter VIII of the Act. Regulation 34 in this Chapter deals with allotment of accommodation in repaired or reconstructed premises. Regulation 34(3) reads as follows:

"34(3)As far as possible, the occupier may be provided with an accommodation in the reconstructed building of floor area equivalent to the floor area in the old building occupied by him but in no case exceeding 68 sq.m. for any occupier of a residential tenement."

Regulation 35 provides that no tenement in a building constructed out of the monies to the credit of the repairs fund under Chapter VIII shall be allotted to any person other than persons who are dishoused in the circumstances provided in that Chapter. Regulation 35A provides for regularisation of the transfers by charging penalty when such transfers are made by dishoused persons to some others without the permission of the board.

CONCLUSIONS:

73. The above narration of facts and legal position establishes that the legislative policy under the old Bombay Rent Act as well as under the new Maharashtra Rent Control Act, 1999 is to protect the tenants of the dilapidated buildings. As far as the island city of Mumbai is concerned, the Legislature felt that the problem of such dilapidated buildings was acute and therefore earlier it passed an Act known as Bombay Building Repairs and Reconstruction Board Act, 1969 and consequently replaced the same by the provisions of Chapter VIII of the MHAD Act. Respondent No.3 is the Board constituted under the earlier Act and which has continued to function under the above referred chapter of the latter Act. The Board has the power to collect the cess from the tenants of the tenanted buildings in the island city of Mumbai and that fund is utilised for the repair and reconstruction of these buildings. In the instant case, we are concerned with the demolition and reconstruction of a dilapidated building and the right of a tenant to come back into a tenement when the building is reconstructed. As noted above, it is either the Board or the society formed by the occupying tenants which takes up this work of reconstruction or under section 79(2)(a). It can also be handed over "to any other agency recognised for the purpose by the Board". As stated in the said section, the respondent No.3 Board may hand over the execution of such a scheme to such other agency, but it has to be under its own supervision as stated in the said section and also under such terms and conditions as may be agreed upon and with the previous approval of the respondent No.1 Authority.

74. In the present case initially an effort was done by the Board and then also by the occupants to repair and reconstruct the building, but, as borne out by the record of respondents Nos.1 to 3, since the costs became excessive, the work was decided to be handed over to other agency under the said section. Now it is again material to note that such a construction has to be carried out as per the NOC to be given by respondent No.3 Board under section 91(5) of the MHAD Act. The said section states that no plan for erecting any new building is to be sanctioned by the respondent No.4 Municipal Corporation unless NOC from respondent No.3 Board is produced along with such a plan for erecting the building. As pointed out earlier, it is the predecessor in title of respondent No.5 - Smt. Kalavati Desai, who earlier approached for the necessary NOC from respondent No.3 Board. The Letter of Intent was issued to her on 19th November 1992. Subsequently on respondent No.5 purchasing this property from the said Smt.Kalavati Desai, he approached the Board to proceed on the basis of the said Letter of Intent through his architects vide their letter dated 6th September 1994. This letter clearly refers to the above Letter of Intent dated 19th November 1992. The said letter dated 6th September 1994 clearly accepts the 16 conditions in the Letter of Intent dated 19th November 1992, some of which are reproduced earlier hereinabove.

75. The said letter clearly accepts in para 2 that all occupiers of the existing building shall be rehoused in the newly constructed building. It encloses the agreements with the tenants along with that letter. Thereafter in para 3, it is stated that every occupier will be provided with the built-up area equivalent to what they were occupying in the existing building. Para 4 encloses therewith the names of the tenants and the area occupied by them along with the plan. Condition No.5(c) of the Letter of Intent was that it shall not be permissible to force those occupiers of the old building who do not become members of the society to purchase the newly constructed tenement and if they insist on a rental basis, the same shall be given to them on standard rent. Thereafter it is stated that this issue must be decided by mutual agreement between the housing society of the occupiers / developer and the owner. With respect to this Condition No.5(c), it is specially stated that it was noted and will be complied accordingly. Condition No.5(a) required that the tenement in the constructed building would be allotted as per the list certified by the Board. The planning shall be preferably done with built-up area of each tenement ranging from 250 to 300 sq.ft., minimum area being 180 sq.ft. It further provided that the percentage of the surplus area provided in the Third Schedule of the MHAD Act will be worked out and such tenements will be made available to the Board at the cost of Rs.235/- per sq.ft. Now as against this condition, the architects of respondent No.5 had mentioned that since the built-up area of the existing building is more than 2 FSI and all existing tenements will be rehoused, there is only one room surplus. What is material to note is that as per the chart enclosed with that very letter, except the occupant of the ground floor, i.e. one Govind Laxman Mirgal (mentioned as "Gavi" at another place), none of the other occupants of the three floors or the attic had more than 30 sq.m. area. Thus they would have been entitled to an area of 250 to 300 sq.ft., the minimum being 180 sq.ft., and this condition was accepted by the respondent No.5. He has however stated, as pointed out above, that only one room would be surplus if the building was constructed as per those conditions.

75. It is an undisputed fact that the petitioner was a tenant on the third floor of this building, which came to be demolished in 1979. As pointed out above, her name figures in the list of tenants enclosed with the registered conveyance dated 6th June 1994 under which the respondent No.5 purchased this property from the predecessor in title Smt.Kalavati Desai. Her name also figures in the list enclosed with the letter dated 6th September 1994 sent by the architects of the respondent No.5 to the respondent No.3 accepting the redevelopment of the property as per the Letter of Intent dated 19th November 1992 sent by the Board to his predecessor in title. Thereafter her name figures once again in the final list of tenants jointly prepared by respondent No.5 and respondent No.3 which is enclosed with the affidavit of respondent No.5 dated 23rd September 1994. Not only that, but her name figures in the list of promoter members of the proposed Prabhat Cooperative Housing Society and which list was forwarded by the architects of respondent No.5 to the respondent No.3 after the building was constructed along with his letter dated 24th January 1996 seeking an occupation certificate upto 4th floor. Besides, it is material to note that the respondent No.5 has given indemnity / affidavits dated 8th August 1994 stating that all the conditions of Letter of Intent dated 19th November 1992 will be fulfilled and that unless arrangements are made to occupy all the occupiers from the old existing buildings into the proposed new building, the respondent No.5 will not approach the Municipal Corporation for occupation certificate. The petitioner has also annexed to the petition the notice issued to her under section 77(b) of the MHAD Act on 25th July 1978 to vacate the premises and the certificate given by respondent No.3 later on in the year 1983 that she was a tenant of the erstwhile building which was subsequently demolished. Thus there can be no doubt that the petitioner was a tenant / occupant of this building until it was demolished.

76. Inasmuch as the building was demolished for reconstruction and rehousing the tenants of the dilapidated building, the petitioner like all other tenants had a equal right to come back to the building when reconstructed. She was provided with an alternative transit accommodation for that and an issue is made that subsequently she was not staying over there but at some other place. Section 94(5) of the MHAD Act, as it existed earlier, and section 94(5) after it amendment in 1998, both make it clear that every occupier of such demolished buildings shall have a right to get an accommodation in the new building "whether or not he accepts temporary accommodation". Besides, transit camp is not something where one is expected to stay for long nor are these accommodations created for a very long stay. It is therefore quite possible that the occupant may feel dissatisfied with such transit accommodation and after waiting for good time, may make his own alternative arrangement. The above section also therefore makes it very clear that whether or not a dishoused person stays in a transit camp, he shall have the right to get accommodation in the new building. In the instant case, the respondent No.5, who took up the responsibility of reconstruction under the NOC issued by respondent No.3 dated 1st October 1994, had entered into a prior agreement with her on 8th August 1994 to provide a flat on ownership basis of 256 sq.ft. on 5th floor being Flat No.10 of the new building. The petitioner had agreed to pay the proportionate cost and the tenancy was to be surrendered as soon as the possession of the flat was handed over and when it was ready, i.e. when it was ready for occupation. As far as execution of this agreement is concerned, there is no dispute amongst the parties. It is a contention of the petitioner that thereafter she entered into another agreement with respondent No.5 on 12th January 1995. This agreement stated that she was desirous of acquiring an additional space of 200 sq.ft. and that the respondent No.5 had agreed to give her 300 sq.ft. area free of cost and that she would pay for this 200 sq.ft. It is her case that in clause 9 of this agreement, the flat was mentioned as one on the 6th floor though number thereof was not mentioned. It is her further case that she made a payment of Rs.20,000/- by two pay orders of Rs.10,000/- each in January and May 1996, yet she was not put in possession of the flat. The complaints were lodged with the area police station. The concerned police station wrote letters to respondents Nos.1 to 3, but they were without any effect. She was advised to file a suit initially for specific performance of the agreement of 12th January 1995. It is the case of the petitioner that although she signed the agreement for the flat and made the payment, she was not in a position to attend the matter very regularly. She filed the said suit against respondents Nos.5 and 7 and took out a notice of motion therein and applied for an injunction that the said flat No.11 on the 6th floor be not parted with or disposed of. She corresponded with respondents Nos.1 to 3 in April 1999, but that was also without any effect. Thereafter she has filed this writ petition on 21st June 1999 and prayed for cancellation of the NOC dated 1st October 1994 issued by respondent No.3 and the I.O.D. dated 21st January 1995 issued by respondent No.4. After filing of this writ petition, she withdrew the suit in the City Civil Court on 24th June 1994. The various motions taken out by her in the present petition and the orders passed therein are also mentioned.

77. Dereliction of responsibility by Respondents Nos.1 to 3.

From what is narrated above as also from what has come on record, it is clear that there was a complete dereliction of responsibility on the part of respondents Nos.1 to 3. The entire reconstruction of the dilapidated building was under the scheme of Chapter VIII of the MHAD Act. It is only because respondents Nos.1 to 3 were not in a position to take up the construction on their own that it was entrusted to the landlord respondent No.5 under section 79(2)(a) of the said Act as an agency recognised for this purpose by the Board. However, as stated under the said section, it had to be under the supervision of the Board and on the terms and conditions agreed between the parties. After the respondent No.5 agreed to various conditions in the Letter of Intent dated 19th November 1992 that he was issued the NOC on 1st October 1994. As shown from the chart enclosed earlier, except for the occupant on the ground floor, none of the tenements was over 30 sq.m., i.e. over 300 sq.ft. All of them were promised to be accommodated in the new building and specific undertakings were given in that behalf. As far as the petitioner is concerned, an agreement was entered into with her in the year 1994 for flat No.10 on the 5th floor and that was passed over to respondents Nos.1 to

3. Under Condition No.5(a) of the Letter of Intent, the flats were to be of the size of 250 to 300 sq.ft. It was also provided that if there was any surplus, that was to be made available to the Housing Board to be utilised for accommodating the occupants of those cessed buildings which cannot be reconstructed before occupation certificate is obtained from the Municipal Corporation at the rate of Rs.235/- per sq. ft. However, the respondents Nos.1 to 3 have not explained in their affidavit at all as to whether they saw to it that the plans were as per the NOC given in October 1994. Similarly when the clearance from respondents Nos.1 to 3 was sought while obtaining the occupation certificate in November 1996 also, it is not clarified as to what scrutiny was carried out by respondents Nos.1 to 3, particularly with respect to the construction of the building and reoccupation of the former allottees. In fact, what is most disturbing is that after the complaints from the concerned police station on 30th July 1997 and 19th August 1997, the Divisional Executive Engineer visited the site and reported to the higher authorities that he did not find the names of any of the old tenants who were expected to be rehoused in the newly constructed building. In his letter dated 1st September 1997, he pointed out that the names of some others including Bhansalis appeared on different flats. He reported at that time that all the tenements in the said building were not occupied. This was on the basis of inspection done on 4th September 1997 and 11th September 1997. Surely that was an occasion for the respondents Nos.1 to 3 to wake up. They had a responsibility to the ousted occupants. It was expected of them to move into the matter immediately and call upon respondent No.5 to explain as to what had happened to the persons who were expected to be rehoused, for whom all the documents were entered into and whose names also figured as the members of the proposed housing society as forwarded by his architect as recently as in November 1996 to seek clearance for occupation certificate upto 4th floor. It is most shocking, to say the least, that respondent Nos.3 made only a perfunctory inquiry and informed the police on 4-12-1997 that the concerned Municipal Engineer is asked not to grant further occupation certificate to the newly constructed building until intimation. It is relevant to note that in the meanwhile the occupation certificate for the first four floors had already been issued by respondent No.4 as per the earlier request of respondent No.5 to respondents Nos.1 to 3. Surely, the respondents Nos.1 to 3 could have moved into the matter immediately if there was any genuine intention to take steps. When it was reported by their Divisional Engineer that building was not occupied though the name plates of some third persons appeared, surely they could have filed suit and taken an injunction as also sought appointment of receiver inasmuch as the entire occupation was in breach of what was agreed with respondents Nos.1 to 3. It is obvious that respondents Nos.1 to 3 did not want to do anything of the kind. They should have done the checking at the time of giving clearance for the occupation certificate and, in any case, when the report of the Division Engineer was available, they ought to have taken protective steps. There is a complete failure on their part in discharging the responsibility.

78. The above narration also establishes that the Petitioner did enter into the necessary agreement with Respondent No.5 on 8th of August 1994 wherein she agreed to pay proportionate costs of construction and Respondent No.5 agreed to hand over possession of flat No.10 on the 5th floor admeasuring 256 sq.ft to her on ownership basis. It is also established that subsequently another agreement was also entered into between two of them on 12th January 1995 wherein Respondent No.5 agreed to give a flat of 500 sq.ft. built up area, 300 sq.ft. out of this, was to be free of costs and for 200 sq.ft. she had to pay proportionately. The execution of such a document is not disputed. But what is claimed by Respondent No.5 is that the flat number and the floor were kept blank in Clause No.9 and that the Petitioner has inserted 6th floor over there. Now, in this behalf, it is relevant to note that Respondent No.5 accepts that he received two Pay Orders of Rs.10,000/- each from the Petitioner in January and May 1996. But it is his case that the said amount was taken back in cash and that the Petitioner was insisting on Rs.50,000/- or so for surrendering the tenancy and because of the threats given by her that this document was entered into. Now, what is important to note is that the Petitioner made the assertion of having executed this agreement in January 1995 in Suit No.812 of 1997 filed in February 1997 and also in Notice of Motion No.1544 of 1997 taken out therein on 21st March 1997. It is very interesting to note that as far as Respondent No.5 is concerned, who was Defendant No.1 in that Suit, filed his affidavit-in-reply on 14th of January 1999 i.e. nearly two years after the above assertion was made. It is no where pointed out as to whether any complaint was made to Police when such a document was entered into under duress way back in the year 1995. It is also not pointed out that as to whether any complaint was lodged once again when the money paid by Pay Order in January and May 1996 was allegedly taken back. Respondent No.5 is alleging that the Petitioner was asking for money to the tune of Rs.50,000/- and more for surrendering her tenancy and it is he who told her that, that could not be done under the law. Now, what is interesting to note is that when two of the erstwhile tenants viz. Mr.Shah and Mr.Latke occupying room Nos.4 and 2 on the 1st floor, surrendered their tenancies. Respondent No.5 wrote to Respondent Nos.1, 2 and 3 informing them that they had surrendered their tenancy and that he had brought in his mother Vinodini Dalal as the tenant in their place. In fact, he has made an affidavit to that effect on 23rd September 1994 and handed it over to the Housing Board. Thus, Respondent No.5 knows as to what is to be done when anybody wants to surrender his tenancy. In any case, there is nothing on record to show or any intimation to Respondent Nos.1, 2 and 3 that any of the other tenants surrendered their tenancies. There is no explanation regarding the other erstwhile tenants nor has Respondence No.5 placed any document showing surrender of tenancy by other tenants to him. As far as the Petitioner is concerned, she had undoubtedly not surrendering her tenancy. That being so, she was entitled to the accommodation under the earlier agreement of 1994. Similar agreements are entered into with all other erstwhile tenants by Respondent No.5 and they are on the File of Respondent Nos.1, 2 and 3.

79. As far as the various tenements in the building are concerned, it is not disputed that none of the original tenants has been brought back therein and totally new comers are now occupying the tenements and six of them are with the Bhansali family. There is no dispute about these facts between Respondent No.5 and Respondent No.7 either. It is also not disputed by them that Bhansalis have been inducted into these flats by Respondent No.5 after taking additional consideration for the same and after entering into the agreements with them. Similarly the Petitioner has claimed that an agreement was entered into with her by Respondent No.5 for additional space of 200 sq.ft. and for which she paid Rs.20,000/-. In the facts, as stated above, there is no reason to disbelieve her version of the transaction. Hence, if the other agreements are held to have any legal validity for claiming any accommodation, then this agreement of 1995 for 200 sq.ft. will also have equal validity.

80. A cross suit between Respondent No.5 and Respondent No.7 in the City Civil Court at Mumbai i.e. Suit No.5920 of 1999 and the allegations made by them against each other have brought about much of the truth in the assertions made by the Petitioner. As narrated earlier, this suit was filed on 17th February 1998 by Respondent No.5 against Respondent No.7 regarding his alleged encroachment on the 7th floor and to restrain him from the same. In Para-10 of this Plaint, it was contended by Respondent No.5 that on the 7th floor he had made the commitment to give a flat to one Mr.Gada. A Commissioner was appointed and he reiterated that the work on the 7th floor was incomplete at that point of time. Respondent No.7 has stated with respect to this suit in the present Writ Petition that he was not concerned with the 7th floor and, therefore, he did not contest that suit. That suit was ultimately decreed on 24th January 2001. In the meanwhile, Respondent No.5 had given an undertaking to that Court to maintain the status quo as per the report of the Commissioner. Thus, he was duty bound to not to construct anything beyond 6th floor during the pendency of that suit.

81. In this connection, it is stated by Respondent No.5 that he had given possession of the said six flats to Respondent No.7 only for carrying out carpentry work and that the legal possession had not been passed over but Respondent No.7 continued to encroach and trespass on to those flats. He is claiming an amount of Rs.15 Lacs from Respondent No.7 as a part of the remaining unpaid consideration. As against that, Respondent No.7 in his reply dated 19.9.2001 to Notice of Motion No.262 of 2001 in this Writ Petition claimed that Respondent No.5 informed him that some six persons had surrendered their tenancy rights and he had, therefore, agreed to give tenancy in respect of those rooms. Not only this but he informed Respondent No.7 that he will accommodate the incoming parties in place of these tenants and will get necessary corrections done in the tenant list which was with Respondent No.1. It is claimed that on this representation Respondent No.7 paid large amounts in cash to Respondent No.5 and thereafter when the building was almost ready, executed six agreements of sale with six persons of his family. Thus, it is the case of Respondent No.7 that he made the payment for all these six flats and initially the names of his six family members were entered into as tenants by Respondent No.5 and later on, these agreements were executed. As far as room No.10 on the 5th floor is concerned, the agreement is said to have been entered into by Kamlesh, son of Respondent No.7. These agreements are supposed to have been entered into in August 1996. Now, what is important to note is that as per the directions given by this Court, an affidavit was filed by Respondent No.5 on 23rd July 2001. In this affidavit, he mentioned that flat No.10 on the 5th floor was in the name of Peerchand Bhansali i.e. Respondent No.7 and not Kamlesh Bhansali as claimed by Respondent No.7. Thus, there is a contradiction between the two. But, in any case, it is also relevant that there is no denial of the above assertion of Respondent No.7 that on receipt of huge cash, six tenancies were created in favour of Bhansalis in place of earlier tenants who had allegedly surrendered their tenancies and subsequently flats were allotted to them in lieu thereof. Again, it is relevant to note here that Respondent No.7 is claiming that flat No.10 was allotted to his son Kamlesh on the footing that the earlier tenant had surrendered her tenancy rights. He has, however, not cared to inquire or to take inspection of or to find out as to whether there was any such document given by the Petitioner that she was surrendering her tenancy in the erstwhile tenement No.10. Respondent No.5 was very much aware that he was to inform to the Housing Board any time when any such tenancy is surrendered. This is what he did at the time of surrender of tenancy by Mr.Shah and Mr.Latke. This is also because there is a valuable right given to the Housing Board under the Agreement to purchase these tenements at the rate of Rs.235/sq.ft so that the persons in transit camps from other demolished buildings could be accommodated. It is obvious that he has intentionally not discloed these agreements to respondents Nos.1 to 3. On the other hand, he represented to them through his architects in November 1996 that a society of old tenants was being formed and they were being rehabilitated.

82. It is material to note that on 22nd November 1999 when the petition reached for admission a Division Bench directed that one tenement be kept vacant for the Petitioner. That injunction has been running thereafter. Again in July 2000, on the representation of Respondent No.5, a Division Bench directed that one flat on the 8th floor be kept reserved for the Petitioner. Now, as narrated above, Respondent No.5 had given an undertaking in City Civil Court Suit No.825 of 1998 that he will not proceed with further construction from 7th floor onwards and that the suit was decreed only on 24th January 2001. Similarly in another Suit No.5920 of 1999 filed by Respondent No.5 against Respondent No.4, an injunction was granted against Respondent No.4 not to proceed with the notice under Section 354-A of the BMC Act to demolish the work on the 7th floor. That was also on the basis of an undertaking that he will not carry on any construction in the suit premises. That undertaking was given on 28th September 1999 and the suit is still pending. Respondent No.5 was expected to disclose these facts to this Court. These were suits against Respondent No.7 and Respondent No.4. The Petitioner could not be aware of them. The information about both these proceedings have come before the Court only in view of the reply filed by Respondent No.7. Respondent No.4 also did not care to place the information about the suit against them before this Court. It has, however, been stated on their behalf that the plans which are approved for this building are only for six upper floors plus part of the 7th floor. If Respondent No.5 had only shown regards for the orders passed by the Court from time to time, he could have accommodated the Petitioner on the partly permissible construction on the 7th floor since the undertaking not to construct on the 7th floor was running until the decree in Suit No.525 of 1999 passed on 24th January 2001. Respondent No.5, however, thought that he can continue with his impunity and he had already entered into an agreement with one Mr.Gada with respect to the 7th floor under the Deed of Confirmation of 14th January 2001 during the pendency of the present proceedings. Execution of this Deed of Confirmation is clearly in breach of the order passed by this Court on 22nd of November 1999. It also shows that he had no regards for the fair play or the orders of the Court or for truth.

83. It has also come on record that whereas Respondent No.4 was contending that permission to construct was only upto 6th floor and a part on 7th floor, Respondent No.5 and his Architect Kamlesh Kothari were insisting that the permission granted was also for the 8th floor. He, however, refused to produce NOC given by the BMC for the inspection of the Municipal officers alleging that the original NOC, when produced to the Municipal Officers, will be destroyed or tampered with. This is the level to which Respondent No.5 and his Architect Mr.Kamlesh Kothari have gone. However, what is again interesting to observe is that the authorities of the Municipal Corporation have not taken any steps whatsoever to get the injunction passed against them vacated, nor have they taken any steps so far against the Architect Kamlesh Kothari.

84. As to non-joinder of parties :

Mr.Abhyankar, learned Counsel appearing for Respondent No.7, has contended that Kamlesh Bhansali, son of Respondent No.7 ought to have been joined as a Respondent in the present petition since according to his agreement flat No.10 on 5th floor was purchased by Kamlesh Bhansali from Respondent No.5. As against that, Ms.Purohit, learned Counsel appearing for the Petitioner, pointed out that as per the list of tenants/occupants submitted by Respondent No.5, it is Peerchand Bhansali i.e. Respondent No.7 who was in possession of this flat No.10 on the 5th floor.

Mr.Abhyankar had further submitted that this and other flats of the Bhansalis were mortgaged to Indian Bank and also that subsequently the property had been auctioned and purchased by Meena Impex Company. Inasmuch as the Petitioner had submitted that she had an interest in one flat and any other flat will do, in his submission, the other occupants ought to have been also joined. Now, as pointed out above, Respondent No.7-Peerchand Bhansali, in his own affidavit, had stated that he paid huge amounts in cash and got the tenancy created in the names of his family members. It is also his case that accordingly the agreements were entered into later on. Thus, in his own submission, flat No.10 is in the name of Kamlesh only in view of the internal adjustment amongst the Bhansali family members. Respondent No.7 has not pointed out in any manner that this Kamlesh Bhansali had purchased this flat No.10 from his own funds. In our view, in view of the affidavit of Respondent No.7 himself joining of Kamlesh Bhansali is not at all necessary. That apart, his case is that the Bhansalis have purchased particular six flats in view of the surrender of tenancies by erstwhile tenants. Neither he nor Respondent No.5 have shown any documents of surrender of tenancy by the Petitioner since that is the foundation of their claim to oust the Petitioner. Once that foundation is disturbed, they have no further case to fall back. Whether the Bhansalis had any internal arrangement from amongst their family members is totally irrelevant for the Petitioner. Similarly, a charge or mortgage created by Bhansalis on the flats will not bind the Petitioner and hence, the Indian Bank is not necessary as a party Respondent. The Petitioner is claiming a particular flat viz. flat No.10 by virtue of the agreement and hence, not joining other tenants cannot be fatal to her case. Similarly it is not necessary for her to join Meena Impex as the party Respondent. This is because she was never put into possession of the flat and she cannot be said to be in default of any contribution, cost or payment of property tax to Respondent No.4. She cannot be made to suffer for the defaults either of Respondent No.5 or of Respondent No.6 and 7. In our view, none of these parties are necessary to be joined.

85. As to alternative remedy :

85.It was submitted by Miss Sidhwa, learned Counsel appearing for Respondent No.5, and Mr.Abhyankar for Respondent No.7, that the agreement of August 1994 and the one of January 1995 were essentially a matter of contract between the Petitioner and Respondent No.5. The Petitioner was a tenant of the property and if that was so, her remedy was to approach the Court of Small Causes under the Bombay Rent Act. It was submitted that, in any case, the Petitioner had availed of another remedy by approaching the City Civil Court and without exhausting that she had filed the present Writ Petition. Miss Sidhwa had relied upon the judgment of the Apex Court in the case of State of Himachal Pradesh vs. Raja Mahendra Pal (supra) in this behalf.

But it is material to note that this very judgment lays down that although powers under Article 226 of the Constitution are not to be invoked for enforceability of mere contractual rights when there is an alternative remedy, the said judgment makes it clear that this proposition does not debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding existence of an alternative efficacious remedy. It has also been held by the Apex Court time and again that the rule of exhaustion of an alternative remedy is a matter of discretion for the Court and not a rule of exclusive. We cannot therefore reject this petition on such a ground.

86. On delay and laches :

It was submitted by Mr.Abhyankar, learned Counsel for Respondent No.7, that the petition deserves to be dismissed also on the ground of delay and laches. He had submitted that under the agreement of January 1995, possession was to be handed over in December 1995 and, therefore, the Petitioner had a cause of action in January 1996. Now, what is material to note is that in November 1996, the Architects of Respondent No.5 have informed Respondent No.3 that the building was ready and had sought clearance for occupation certificate. Along with that letter, they had enclosed the Minutes of the first meeting of the members of the proposed Co-operative Housing Society held on 30th October 1995. The Petitioner expected an intimation from Respondent Nos.1, 2 and 3, but nothing was forthcoming. In fact, in January and May of 1996, she made the payment of Rs.20,000/- for an additional 200 sq.ft. area by Pay Order. Ultimately when she learnt that Respondent No.7 had been permitted to enter and occupy the flat on the 6th floor, which was to be allotted to her by virtue of the agreement of January 1995 that she filed the suit for specific performance in February 1997. In 1997 there were complaints to the Police and since the suit was likely to take a long time she addressed letters to Respondent Nos.1, 2 and 3 to take appropriate steps in April and May 1999. Since no effective steps were taken by Respondent Nos.1, 2 and 3, she filed the present petition on 21st of June 1999 to seek cancellation of the NOC dated 1.10.1994 issued to Respondent No.5 and to seek the possession of the tenement in the newly constructed building, to which she was entitled. It has come on record that the husband of the Petitioner is a heart patient and it is as per the legal advice received from time to time that she took the steps. In fact, it was the responsibility of Respondent Nos.1, 2 and 3 to safeguard the interest of the erstwhile tenants. They have practically taken no steps whatsoever in this behalf and the Petitioner was constrained to move one authority after another. Mr.Abhyankar had relied upon a judgment of the Apex Court in the case of Trilokchand vs. H.B. Munshi (supra) and particularly Para-11 thereof which has been quoted earlier. The paragraph makes it amply clear that when it comes to delay it is a question of discretion of the Court from case to case and as to how the delay arose. In the facts of the present case, as narrated above, we cannot take a view that this petition suffers on the ground of delay or laches.

87. Effect of withdrawal of earlier Suit and plea of abandonment :

It was submitted on behalf of Respondent Nos.5 and 7 that the earlier Suit No.812 of 1997 was withdrawn unconditionally without seeking liberty to institute fresh proceedings. It was, therefore, submitted that the present petition would be barred on the basis of principles analogous to Order XXIII Rule 1(4) of the Code of Civil Procedure. Mr.Abhyankar had relied upon the observations of the Apex Court in the case of Sarbuja Transport (supra) wherein the Court had observed that the principle underlying Order XXIII Rule 1 was founded on public policy, though it was not the same as rule of res judicata. In that matter, the Court had deprecated the practice of withdrawing writ petitions and then filing of suits. It was submitted that, in the present case, it was the other way round.

88. It was submitted that initially the Petitioner had filed Suit No.812 of 1997 for enforcement and specific performance of the agreement of August 1995. Then the Petitioner had pressed for an order in this writ petition that one flat be kept vacant. Thereafter an order was passed that a flat on the 8th floor be kept vacant and now, she was insisting on enforcement of the agreement of 1994.

This shifting and change of stand was not permissible. Now, what is material to note is that whereas the prayer in the earlier suit was for specific performance of agreement of August 1995 entered into with Respondent No.5, in the present writ petition, the prayer is to cancel the No Objection Certificate dated 1.10.1994 due to the breaches thereof committed by Respondent No.5. It is also prayed that the I.O.D. dated 25.1.1995 issued by Respondent No.4 be cancelled. The Petitioner has, of course, prayed in prayer clause (b) that she be allotted a flat in the newly constructed building. Besides, when this writ petition was filed on 21st June 1999, specific statement was made therein in Para-16 that the Petitioner was ready and willing to withdraw the said suit pending in the City Civil Court and the suit was accordingly withdrawn on 24th June 1999. It is not a situation where one proceeding is withdrawn unconditionally and then another proceeding is instituted. During the pendency of the first suit, the writ petition was filed, and after disclosing to this Court about the pendency of the suit, the same was withdrawn. It is true that there is no specific recording in the order passed by the City Civil Court that the suit was being withdrawn with a liberty to proceed with the writ petition which was filed in the meanwhile. However, what one has to bare in mind is the rationale behind the principle namely that one should not resort to forum shopping and further that while withdrawing one proceeding and instituting another one subsequently, it must be with the permission of the Court. In the instant case, in the writ petition, a statement has been made that the suit will be withdrawn. That statement is made on oath to the Court and it is worded in the form of an undertaking. In our view, this kind of a situation cannot be said to be hit by the provisions of Order XXIII Rule 1(4) of the C.P.C.

89. Besides, it is also material to note that the provision of Order XXI Rule 1(4) precludes institution of a fresh suit in respect of the subject matter of the withdrawn suit. In the case of Ajit Chopra vs. Sadhu Ram , the Apex Court was concerned with somewhat similar situation in the context of Section 47 of the Civil Procedure Code before its amendment in 1976. The section lays down that questions arising between the parties to the suit have to be determined by a Court executing the decree and not by a separate suit. In that matter, a judgment and decree was passed in a previous suit on the basis of lease under the Rent Control Act, by which it was held that the Respondent was a tenant and he was required to vacate the premises by a particular date. The Apex Court held that such a judgment and decree would not bar a fresh suit for recovery of possession from the tenant on the basis of title to the property. The Court observed :

"It is true that the Appellant could have executed the decree passed in the said suit. .... Still there is no bar under the Rent Act or under the Code of Civil Procedure for filing a suit for recovery of possession from the tenant, who had failed to deliver the possession on the basis of the decree passed against him."

In the present matter also whereas the earlier suit was filed for the specific performance of the agreement of sale, this writ petition has been filed on the basis of the breaches of the No Objection Certificate issued to Respondent No.5, which is a wider relief. In our view, having first made the disclosure of pendency of the suit to this Court, when the same is withdrawn, proceeding with the writ petition cannot be faulted.

90. As to Non-enforceability of private contract in writ :

Mr.Abhyankar had submitted that the two agreements and particularly the second one of January 1995 was a private contract between Respondent No.5 and the Petitioner and the writ petition could not be allowed for enforcement thereof. He had relied upon a judgment of the Apex Court in the case of Divisional Forest Officer vs. Bishwanath Tea Company (supra)in this behalf. In that matter, the Appellant had sought to recover full royalty for the timber sold or removed for usage unconnected with exploitation of the grant of the lease. The Respondent had claimed the right to remove the timber without any such obligation on the basis of a term of the lease. That term was a mere reproduction of a provision of Assam Land and Revenue and Local Rates Regulations. A writ filed by the Respondent was entertained by the Assam and Nagaland High Court. The Apex Court allowed the appeal and held that a statutory provision, if incorporated in a lease or contract, will lose its statutory character and writ would not lie but a suit will have to be filed for enforcing the term of the contract. In the present case, we are not faced with a similar situation. The Petitioner is not merely seeking a specific performance of the contract. In the instant case, it is a complete statutory scheme for the protection of the tenants of the dilapidated buildings and there is a control and supervision of Respondent Nos.1, 2 and 3 throughout over the execution of the scheme. The building is to be reconstructed on the terms and conditions contained in the No Objection Certificate. After the building is ready also a clearance is to be obtained from Respondent No.3 for receiving the occupation certificate from the Municipal Corporation. It is only after being satisfied that all the tenants of the erstwhile building are being housed in the building that this occupation certificate is to be issued. Thus, there is a control and supervision of Respondent No.3 all throughout. That is clearly provided in Section 79(1) and 79(2)(a) of the MHAD Act. As these provisions lay down, it is only on terms and conditions as the authority may deem fit that the execution of the scheme can be handed over to any such other agency but that is also "under its own supervision" as Section 79(2)(a) provides. Thus, the agreement of 1994 is a part of this statutory scheme and is nothing but a statutory contract. If there is any breach on the part of an agent appointed under the said section to carry out his obligations and also on the part of Respondent Nos.1, 2 and 3, a writ petition can certainly lie. In the case of Common Cause, a Registered Society vs. Union of India , the Apex Court observed as follows:-

" 43. ....... Initially the Supreme Court was of the opinion that while the decision making process for award of contract would be amenable to judicial review under Art.226 or 32 of the Constitution, a breach of a contractual obligation arising out of a contract already executed would not be so enforceable under such jurisdiction and the remedy in such cases would lie by way of a civil suit for damages. (See Radhakrishna Agarwal v. State of Bihar . But the Court changed its opinion in subsequent decisions and held that even arbitrary and unreasonable decisions of the Government authorities while acting in pursuance of contract would also be amendable to writ jurisdiction. This principle was laid down in Gujarat State Financial Corporation v. Lotus Hotels Pvt.Ltd. . This Court even went to the extent of saying that the terms of contract cannot be altered in the garb of the duty to act fairly. (See Assistant Excise Commissioner v. Issac Peter . "

In the present case, we are concerned with the failure of the agent of the state in acting in accordance with the statutory contract, and hence necessary directions are sought. The writ jurisdiction will certainly be available for this purpose on the same basis.

91. It was also submitted on behalf of Respondent Nos.5 and 7 that there are disputed questions of facts, particularly with respect to the title and they could not be satisfactorily gone into in the writ petition. Reliance was placed in this behalf on the judgment of the Apex Court in the case of State of Rajasthan vs. Bhavani Sing (supra). As narrated earlier, in the present case, the facts are very clear. The Petitioner was a tenant of a dilapidated building. That building was pulled down by Respondent Nos.1, 2 and 3 in the year 1979. Thereafter the work of reconstruction was handed over to Respondent No.5 under Section 79(2)(a) of the Act. That was on the terms and conditions which provided that the newly constructed tenements will be of a size between 250 and 300 sq.ft. and all tenants will be re-housed therein. Respondent No.5 gave various undertakings to comply with the terms and conditions and thereafter took over the construction. It was also provided in the letter of intent that if there was any excess space available Respondent No.3 had the right to purchase the same at the rate of Rs.235/- per sq.ft for housing the other dis-housed people. The Petitioner entered into the necessary agreement in August 1994. She had, therefore, undoubtedly the right to go back into the reconstructed tenement. She was also joined as a promoter/member in the proposed Co-operative Housing Society and those papers were forwarded by Respondent No.5 to Respondent No.3 in November 1996. Thereafter on obtaining the clearance from Respondent No.3, the part occupation certificate was obtained from Respondent No.4. In the meanwhile and later on, agreements have been entered into with persons like Respondent No.7. No document of relinquishment of tenancy signed by the Petitioner has come forward. In fact, she has been agitating for going into this reconstructed building. Subsequent to entering into the above agreement, another agreement for additional space of 200 sq.ft. had been entered into in January 1995. The tenement earmarked for the Petitioner i.e. flat No.10 on the 5th floor has been handed over to Respondent No.7 and he accepts that he has taken it on the footing that the previous tenant has surrendered his tenancy. This is the entire basis of his occupation. He did not make any enquiry with Respondent Nos.1, 2 and 3 with respect to relinquishment of any such tenancy. Thus, in our view, there are no disputed questions of facts and certainly a writ court can look into the grievances canvassed by the Petitioner.

92. The above narration shows that a beneficial statutory scheme has been misused by an unscrupulous landlord either with connivance or with the understanding of the public officers concerned. Respondent Nos.1, 2 and 3 have completely failed to discharge their responsibility of supervision. They were expected to see to it that the construction of each tenement was as per the letter of intent namely of 250 to 300 sq.ft. per tenement. What appears is that larger tenements of 450 sq.ft. or so have been constructed. If they were to supervise properly they would have got some surplus space which could have been utilised for tenants of other dilapidated buildings. In any case, it was their responsibility to see to it that the erstwhile tenants are put back into the building when it is ready. No proper enquiry seems to have been made in this behalf when the application for occupation certificate was tendered after the building became ready in November 1996. Pursuant to the Police complaints also it was reported by the Division Executive Engineer that the names of some other persons were seen on those flats though apparently nobody was occupying them. The officers of Respondent No.3 could have moved into the matter appropriately even by filing a suit, if necessary, yet they did nothing of the sort. Obviously higher officers of respondent No.3 and particularly the Chief Officer of respondent No.3 who wrote the letter dated 4th December 1997 to the police have connived at all this.

93. The officers of Respondent No.4 are equally responsible in this dereliction of duty. They have taken no steps to get the injunction vacated when granted by the City Civil Court nor have they taken any action when flats were amalgamated including those from different floors. It is difficult to accept that these actions on the part of the officers of Respondent Nos.1, 2, 3 and 4 are very innocent actions. Scanty affidavits were filed on behalf of Respondent Nos.3 and 4 leaving everything to be done by the Court. Fortunately, for the Petitioner, the File containing relevant papers was relied upon by respondent No.3 and offered for inspection which disclosed deception played by Respondent No.5 almost amounting to fraud. And fraud avoids even judicial acts "ecclesiastical or temporal" as observed by Chief Justice Edward Coke of England three centuries ago and as quoted by the Apex Court in S.P. Chengallvaraya Naidu v. Jagannath . In the present case, we are concerned with the acts of an agent of the State with whom the officers of the concerned public authorities have obviously connived. Not a single occupant of the erstwhile dilapidated building was rehoused when the building was reconstructed. This was on the background of agreements, solemn undertakings and letters from the landlord that all the erstwhile occupants shall be and were being rehoused. There was a report of the Divisional Executive Engineer on record that none of the erstwhile occupants were being rehoused and yet no effective steps were taken by respondent No.3. Though the respondent No.3 owed a duty to rehouse the old tenants, the respondent No.3 moved into the matter only after the police complaint. Inspite of the report of the Divisional Engineer no effective steps were taken to contact the erstwhile tenants except inquiry at the transit camp. It is quite possible that after long 18 years, the erstwhile tenants had got tired and moved out to some better places. But recently in November 1996 the landlord had submitted papers with signatures of old tenants to form the society in new building. No inquiry seems to have been made with him, nor any assistance sought from police with whom the complaint was lodged. The respondent No.3 had every power to buy these tenements at the rate of Rs.235/- per sq.ft. for the benefit and at the cost dishoused persons of other buildings and languishing in the transit camp. In fact that was expected of respondent No.3 under the Scheme. The then Chief Officer of respondent No.3 did nothing of the sort but for the sake of record only wrote to the police that he was asking B.M.C. not to grant further occupation certificate which hardly meant anything. A lady of senior age seeking repossession of her tenement was made to move from authority to authority and court to court. The landlord kept on flouting undertakings given to courts thinking clearly that nothing will happen to him. And the officers of respondent Nos.1 to 4 remained at ease as silent spectators. On the top of it, this Court is being told by respondents Nos.5 to 7 not to act. The petitioner has alleged collusion between respondent No.5 and 7 though they seem to have subsequently parted company. No assistance whatsoever is rendered by the public officers concerned in this matter. We make it clear that this does not mean any reflection on the lawyers appearing in the present matter, but on the officers instructing them. However, we cannot but observe that the entire conduct of all the respondents is disgusting to say the least. The dilapidated building was demolished as far back as in 1979. The occupants were sent to the transit camp. Nearly 17 years thereafter the building is reconstructed in 1996. None of the erstwhile tenants are rehoused and one, who is keen on going back, is rendered no assistance by the public officers. This is all in the name of a welfare scheme.

93. In the circumstances, we will have to allow this petition. Prayer clauses (a) and (b) of this petition seek cancellation of the NOC dated 1.10.1994 and the IOD dated 25.10.1995 and a direction to comply with the terms and conditions coupled with a prayer to allot a newly constructed premises to the petitioner. Now, the building is already constructed and cancellig the N.O.C. or I.O.D. is not desirable. However, appropriate remedial measures and directions can be passed. As held by us, the Petitioner had a rightful claim to a tenement of 250 sq.ft. under the agreement of 8th August 1994 which can be enforced through this writ petition. As far as the agreement of 12th January 1995 is concerned, it is for an additional space of 200 sq.ft. Such an additional space is not permissible under the scheme, but that is not permissible to any of the occupants. Respondent No.5 has taken the amount of Rs.20,000/- from the Petitioner for this additional space. Subject to the directions which we are passing hereinafter the Petitioner will have to be put in possession of flat No.10 on the 5th floor even though it is in excess of 250 sq.ft. and may be of around 450 sq.ft. The officers of Respondent Nos.3 and 4 will have to inspect the building and find out as to whether the flats have been constructed of the size of 250 to 300 sq.ft. as under the letter of intent and NOC. In the event they are flats of excess size, they will have to decide as to whether it is possible to split the excess space and to make other flats of 250 to 300 sq.ft. by joining the additional space of two adjoining flats. They will also have to find out as to what happened to the other old tenants, whether any intimation was sent to them either by officers of Respondent No.3 or by Respondent No.5 and as to whether they have relinquished their tenancy. In the event they have so relinquished, the 3rd Respondent will have a right to take over such additional space from Respondent No.5 and whoever are the occupants at the rate of Rs.235/- sq.ft. as provided in the agreement or presently prevalent rate for such arrangements by filing the necessary suit for that purpose. Since Respondent Nos.1, 2 and 3 are Authorities and Board under the overall supervision of the State Government, we are of the view that the Housing Secretary of State of Maharashtra ought to hold an enquiry and find out as to why the then Chief Officer of Respondent No.3 did not take necessary action even at that stage as pointed out above when the Divisional Executive Engineer had reported after the Police complaints that name-plates of none of the original tenants were seen on the premises and that the premises appeared not to have been occupied at that time. The Chief Officer of Respondent No.3, who replied to the inquiry from the Police Department by his letter dated 4.12.1997 along with the concerned officers, if held responsible for dereliction of duty must face the consequences.

94. The Municipal Commissioner of Greater Mumbai must also thereafter hold an inquiry as to how no appropriate action has been taken in this matter to defend the suit properly and as to how the amalgamation of some of the flats on different floors has been permitted or no action taken in that behalf. If he forms an opinion that what has been done is illegal, he must as well take action against those who are responsible and also with respect to the premises on the site. The Municipal Commissioner must also examine as to what action can be taken against the Architect Kamlesh Kothari if he is of the opinion that this Architect Kothari has fabricated the plans for proceeding with the construction on the 7th and 8th floors.

95. We are of the view that Respondent No.5 did not place full facts before the Court, particularly with respect to the other suits when an order was passed to keep one tenement vacant on the 8th floor. Prima facie his action appears deliberate and he must as well face the consequences.

96. In the circumstances, we pass the following order:-

ORDER

(a)Respondent No.3 will take steps to find out as to whether the tenements constructed are in excess of 300 sq.ft., and if so, whether they can be split and the excess space can be purchased by Respondent No.3 at the rate of Rs.235/- sq.ft. (as per the letter of intent) or at the presently prevalent rate of Repair Board for such arrangements or whether the construction ought to be left as it is for valid reasons and in that case on what terms and consequences for respondent No.5 and others responsible for this situation.

(b)Respondent No.3 will examine the position and take necessary steps including that of filing of a suit against Respondent No.5 and against all illegal occupants to recover possession of the concerned premises at the aforesaid rate with a view to allot them to the tenants of the dilapidated buildings staying in transit camp. In that event it will be open for the present occupants like respondent No.7 to recover the amounts paid by them (in excess) from Respondent No.5, in accordance with law. In the event the respondent No.3 decides that such a course is not desirable, he must record the reasons for the same and in that case ought to consider as to what action could be taken against respondent No.5 and others responsible for this situation.

(c)We direct the Secretary (Housing) State of Maharashtra to look into the question of dereliction of duty on the part of the then Chief Officer of Respondent No.3 (and all other concerned officers) who wrote the letter dated 4.12.1997 to the concerned Police Authorities and for their failure to take proper action either to rehouse the erstwhile tenants of this building or to house the tenants of the other dilapidated buildings by taking over the premises at the rate of Rs.235/per sq.ft. and/or offering them at that rate to such other tenants in transit camp. He must also consider issuance of appropriate guidelines so that such incidents do not recur.

(d)We direct the Municipal Commissioner of Respondent No.4 to examine as to whether there was any inaction on the part of his officers at the stage of approval of the plans and in defending the suit No.5920 of 1999 filed against the BMC and in getting the injunction vacated, and to take appropriate steps against the persons concerned. We direct the Municipal Commissioner to consider taking appropriate action against the Architect, who according to the BMC, fabricated the plans of the building for proceeding with the construction of 7th and 8th floors. We further direct him to find out as to how the amalgamation of the flats on different floors was permitted and to take action against the officers and the occupants as well as respondent No.5 for that purpose.

(e)We direct the Receiver, High Court, Bombay, appointed vide our order dated 19th September 2001 to take possession of flat No.10, 5th floor (if necessary with police help), and to place the petitioner in possession thereof. In the event Respondent No.3 decides to recover the space in excess of 250 sq.ft., the Petitioner will also be entitled to recover the amount due to her from Respondent No.5. It will be open for respondent No.7 (and 6) or his son Kamlesh to recover the amounts paid by them to respondent No.5 by taking appropriate steps in accordance with law.

(f)We direct the Prothonotary and Senior Master, High Court, Bombay, to forward a copy of this judgment to the Advocate General, State of Maharashtra, to examine and to take steps as to whether any appropriate action for breach of orders, misleading the Court and for perjury could be initiated against Respondent No.5 for purposefully not disclosing the facts and misleading the Court to pass different orders from time to time.

(g)A copy of this judgment to be forwarded to the Secretary (Housing), the present Chief Officer of Respondent No.3 and to the Municipal Commissioner forthwith.

(h)The Secretary (Housing), the Chief Officer of Respondent No.3, and the Municipal Commissioner to file a report in this Court with respect to the actions taken on or before 30th of June 2002. The learned Advocate General is also requested to take his decision by that date.

97. The Petition is allowed accordingly with costs. The order passed on the writ petition takes care of the prayers in the motions. Therefore, no separate order is necessary on the two notices of motion which are pending along with this writ petition. The same are accordingly disposed of with no order as to costs.

98. After the matter reached before this Bench in September 2001, the matter was heard on a number of dates. The counsel for all the parties made detailed submissions and the hearing was concluded on 9th November 2001. There have been a number of hearings since 1999 before the earlier Benches and even before this Bench. The petitioner was required to take out three notices of motion apart from rejoining to a number of affidavits in reply. It meant a substantial expenditure on litigation. All this litigation was forced on the petitioner due to the fraud played by the respondent No.5 with the assistance or purposive inaction of the officers of respondent No.3. Respondents Nos.4 and 7 have also contributed to this agony. Even on a conservative basis, the petitioner ought to be awarded cost of Rs.40,000/-. We direct respondent No.5 to pay Rs.20,000/- of it, respondent No.3 Rs.10,000/- and respondents Nos.4 and 7 Rs.5,000/- each.

99. Petition and the motions stand disposed of. However, the Prothonotary & Senior Master is directed to place this matter on the board of the concerned Bench on 8th July 2002 to report compliance with respect to the direction contained in paragraph 96(h) above.

100. The counsel for all the parties apply for authenticated copy of this order. Authenticated copy of this order be made available to the parties.

101. Prothonotary & Senior Master and the Receiver to act forthwith on the authenticated copy of this order.

H.L. Gokhale, J.

V.K. Tahilramani, J.

102. After the judgment and order was delivered, Mr.Joshi, learned counsel appearing for respondents Nos.6 and 7 applied for stay thereof. Ms.Purohit opposed this request. As noted in our order, the petitioner was required to move from court to court and from authority to authority for getting the accommodation, to which she was lawfully entitled long back. If the matter is to be carried to the Supreme Court, it will mean further waiting and will also need further expenditure. We therefore asked Mr.Joshi as to whether he was prepared to deposit Rs.25,000/which should be the minimum expenditure on a conservative basis for the petitioner to defend the matter effectively in the Supreme Court. Mr.Joshi stated that he is not in a position to make such statement. In the circumstances, the request for stay is rejected.