Can a court pass disadvantageous order against the appellant's interest beyond their prayers and pleadings in an appeal?

 However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.

16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9149 of 2011

Decided On: 10.09.2013

 Vachalabai Haribhau Lingayat  Vs. Estate Manager, Aurangabad

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde, J.

Citation: 2014(2) MHLJ 190,MANU/MH/1442/2013

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Whether transfer of tenancy of premises in redeveloped building will be governed by MHADA Act or Maharashtra Rent control Act?

Further it seems to us that MHADA's concern is in regard to the protection or reconstruction of cessed (that is to say tenanted) structures. The Housing Board and the MHADA Act are concerned with the condition of the housing structure. Tenancies cannot be created, surrendered or transferred under the MHADA Act. This is possible only under the Maharashtra Rent Control Act. {Para 24}

25. Moreover, the definition of 'tenant' in the Maharashtra Rent Control Act 1999 includes a person who has derived title under the tenant. Under the earlier Rent Control statute of 1947, transfers of tenancies were illegal. Now, under Sections 55 and 56 in Chapter IX of the Maharashtra Rent Control Act 1999, transfers of tenancy are permitted with the requirement that these must be registered (which has been done in this case) and that the tenant and the landlord have the right to receive lawful charges. This is specifically contemplated by Clause 18 of a Appendix- III referred to above. 

 IN THE HIGH COURT OF BOMBAY

Writ Petition (L) No. 19891 of 2021

 Alice Realties Pvt. Ltd.  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

G.S. Patel and Madhav J. Jamdar, JJ.

Author: G.S. Patel, J.

Citation: MANU/MH/0227/2022

Decided On: 03.01.2022

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Whether Civil Suit Claiming Reliefs Beyond Scope Of The MHADA Act Which Bars Jurisdiction of Civil court Is Maintainable?

The preamble to the Act states that it is an Act to "unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas". The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the Appellant in the suit. The reliefs sought by the Appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the Defendants from constructing over the open site and causing 'nuisance'; and (iii) restoration of the water connection as it was prior to the construction. The Appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first Respondent had erected on the open space. The reliefs claimed by the Appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act.

{Para 16}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5216 of 2022

Decided On: 08.08.2022

 Rajani  Vs.  Smita and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and A.S. Bopanna, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/1021/2022

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Whether construction is permissible in open spaces left in approved building layout plans in residential zone?

     The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions.  {Para 22}

23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.                                  Supreme Court

JUSTICE MOHAN M. SHANTANAGOUDAR JUSTICE R. SUBHASH REDDY

Anjuman E Shiate Ali & Anr. Vs. Gulmohar Area Societies Welfare Group & Ors. etc.

CIVIL APPEAL NOS. 6216-6217 OF 2019

17th April 2020

Citation: 2020 SCC OnLine SC 373,2021(1) ALL MR 367 (S.C.)

Author: R. SUBHASH REDDY, J.

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Whether Wife can demand flat in redeveloped building claiming that she had vacated premises as per S 95A notice of MHADA?

Smt. Pusalkar has argued before us in-person that she was removed from her matrimonial home through the statutory mechanism contained in Section 95A of the 1976 Act, which bore the threats of penal measure and summary eviction process. But this was during the time the decree of judicial separation remained operative. She traces the root of her ‘dishousing’ to a notice dated 10th July 2000 (bearing no. MBR & RB/FN/GN/2136 of 2000) issued by the Board under the 1976 Act. Her case is that it is composite statutory obligation of MHADA, the builder and her husband to rehouse her in her matrimonial home. It is a fact that the said respondents functioned under a statutory scheme while redeveloping the property, commencing from approval of the development scheme, vacating the old building and re-entry into the allocated portion of the redeveloped premises by her husband’s family. The appellant was also dishoused from the said building under that scheme. But in our opinion, when a builder has discharged his obligation by accommodating the original owners in the redeveloped

portion as per such a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the said statute, if her husband does not permit her to reside in the allocated portion. She does not have any independent claim on title or interest to that property having its genesis in that statute. Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to the statutory right of her husband to be rehoused or rehabilitated in the new building. But her right to reside in her matrimonial home stands detached from and is independent of the statutory scheme under the said Act. Neither MHADA, nor the builder can have any further legal obligation to rehouse her. She is staking her claim as a constructive beneficiary of the redevelopment scheme. But our opinion is that the right she is seeking to enforce, though flows from a set of events on the basis of which her husband can claim rehabilitation, is actually anchored to an independent legal principle under the Family Law. We accept that she was an occupier under Section 2 (25) of the 1976 Act, but such occupier status was dependent upon her husband’s independent right as part owner of the property. Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under the statutory  scheme. Her right to reside in her matrimonial home does not flow from the 1976 Act.

Though she was dishoused as an occupier applying the provisions of the 1976 Act, claim of her rehousing is based on her status as wife of the respondent no. 8. In our opinion, such claim has to be adjudicated upon by the Civil Court or the Family Court or any other forum the law may prescribe. Such right of the appellant cannot be diffused with the right of her husband under the 1976 Act, whose family property, part of which he is the owner, has been reconstructed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7231 OF 2012

AISHWARYA ATUL PUSALKAR Vs MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 

ANIRUDDHA BOSE, J.

Dated: 27 April, 2020.

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Whether MHADA can be directed to regularize unauthorized construction?

The Appellate Authority has recorded the submissions of the Appellant that he had made encroachment and also made construction as mentioned in the charge-sheet. The Appellant further pleaded that he is ready to pay the charges for regularization of the construction and for the allotment of encroached land made by him. The Appellate Authority found that the Appellant has committed breach of the conditions of the allotment by making additions and alteration, and encroached on the land, which was not allotted to him and in view of the factual position, the Appellate Authority recorded that the charges framed against the Appellants are proved and accordingly, the Appellate Authority confirmed the order passed by the Competent Authority. Upon careful perusal of the reasons recorded by the Competent Authority, which are confirmed by the Appellate Authority, it is abundantly clear that the Petitioner clearly admitted before the Appellate Authority that he has made encroachment and alterations and prayed for regularization of the said encroachment. Therefore, in the aforesaid background, this Court is not inclined to entertain this writ petition. If the Petitioner's prayer is entertained, the same may amount to adding premium on illegal and dishonest acts of the Petitioner who has encroached on MHADA's land and also made the alterations contrary to the Rules and Regulations. The extra-ordinary writ jurisdiction cannot be invoked so as to exercise the discretion in favour of the person, who has committed illegality and irregularity. Therefore, this Court is not inclined to entertain the prayer of the Petitioner's either to remand the matter back to the Competent Authority or to accept his prayer for regularization of the encroachment. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9019 of 2011

Decided On: 10.09.2013

Maniram Satyanarayan Chaudhari Vs.  Estate Manager, Aurangabad

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2014 (1) AllMR 340

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Whether small cause court has jurisdiction to consider validity of notices issued U/S 95A of MHADA Act?

The Apex Court in Natraj Studio (supra) held that the Small Causes Court alone has exclusive jurisdiction to resolve the dispute between the parties in view of Section 28(1) of the Bombay Rent Act. As stated above, the dispute in suit is not merely dispute between landlord and tenant. The applicant is challenging notices under Section 95A of the MHADA Act and statutory action of the officers of MHADA. The Small Causes Court, having limited jurisdiction to decide the proceedings between landlord and tenant only, cannot decide the validity of the notices under Section 95A. The Small Causes Court has, therefore, no jurisdiction to grant injunction against respondent Nos. 2 to 4. It is settled principle of law that, in order to determine the nature of the suit, the real substance of the suit is required to be looked at, and not legal ingenuity in drafting the plaint. Reference can be made to the Division Bench judgment in Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel, AIR 1980 Bombay 123. If the plaint in the present case is read as a whole, including the prayer clauses, then, it is clear that relief in prayer clause (a) is claimed only in order to bring the suit within the jurisdiction of the Small Causes court. In fact, there is no dispute about the relationship of the applicant and respondent No. 1. By filing application, the applicant is, in effect, challenging notices under Section 95A of the MHADA Act.

14. In the light of discussions hereinabove, I am of the considered view that the Small Causes Court will have no jurisdiction to go into the validity of the notices. In fact, it has limited jurisdiction under Section 33 of the Maharashtra Rent Control Act, 1999, apart from specific bar under Section 177 of the MHADA Act. In these circumstances, I do not find fault with the impugned order. 

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 662 of 2012

Decided On: 11.09.2012

 Dhirajilal Vishanji Chedda, Vs. Kshitija Infrastructure Pvt. Ltd. 

Hon'ble Judges/Coram:

R.V. More, J.

Citation: 2012(6) ALLMR 44, 2013(1) MHLJ 58

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Distinction between reconstruction and redevelopment

The plans under Regulation 67 cannot be approved except for repairs
"reconstruction" implies re-erecting the structure exactly as it was,
without any change, the term "redevelopment" involves an erection of
a new structure with a completely new plan, dimensions etc.

WRIT PETITION NO. 1469 OF 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

Official Trustee, State of Maharashtra, Vs  Maharashtra Housing & Area Development Authority.

CORAM : S.J. VAZIFDAR, &
K.R. SHRIRAM, JJ.

THURSDAY, 06TH MARCH, 2014
Citation;2014(5) ALLMR 145,

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