Decided on April 27,2020

Aishwarya Atul Pusalkar Appellant


ANIRUDDHA BOSE, J. - (1.)The original writ petitioner, who is the appellant in this proceeding seeks to enforce her right to reside in her matrimonial home. The location of the house where she wants to establish her right to reside is comprised in two flats (nos.601 and 602) in a building situated on plot No. 118, Dr. M.B. Raut Road, Shivaji Park, Dadar, in the metropolis of Mumbai. The family of her husband (respondent no. 8) were originally the owners of the said plot, on which stood a residential building known as "Usha". We find from an additional affidavit filed in this proceeding affirmed on 29th August 2019 by the respondent no. 8 that the said building was originally owned by three branches of the "Pusalkar" family in equal proportion. The branch of the respondent no. 8 stemmed from Shivram Dattatryea Pusalkar, carpet area of 1100 sq.ft. comprised of their share. On death of said Shivram Dattatreya Pusalkar, his share devolved in equal proportion to his widow Shobhana Shivram Pusalkar (since deceased), their daughter Gayatri Pratap Puranik and the respondent no. 8. That building upon demolition was redeveloped by a firm of builders, BUILDARCH. Such redevelopment was done after obtaining a no objection certificate from the Mumbai Building Reforms and Reconstruction Board (Board) in terms of the provisions of Maharashtra Housing and Area Development Act, 1976 (1976 Act). Under a scheme approved under the provisions of the said Act, during the period of redevelopment, the occupants were required to shift to transit or temporary accommodations. The appellant's contention is that such exercise of redevelopment had been undertaken in pursuance of a statutory scheme framed under Section 79 of the 1976 Act which has provisions for rehabilitation of dishoused occupiers. The members of the family of the appellant after her marriage, comprising of her husband and mother-in-law appear to have had shifted to the transit accommodation in the year 2000. The appellant-writ petitioner remained in the original building with her two minor sons. Respondent No. 8, Atul Shivram Pusalkar, however, has claimed that both their sons are major by age now and are working with him in his business. Respondent No. 8 has also stated that one of his two sons is residing with him.
(2.)As the appellant had continued to reside in the old building, the MHADA authorities issued a notice upon her under Section 95-A of the 1976 Act. The said provision stipulates :-
"95-A. (1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70 per cent of the total occupiers of the building and a No Objection Certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupiers, as the case may be, then it shall be binding on all the occupiers to vacate the premises:

Provided that, it shall be incumbent upon the holder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation.

(2) On refusal by any of the occupant to vacate the premises as provided in subsection (1), on being approached by the holder of such No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in Chapters VI and VII of this Act, be liable for summary eviction.

(3) Any person occupying any premises, land, building or structure of the Board unauthorisely or without specific written permission of the Board in this behalf shall, notwithstanding anything contained in Chapter VI and VII of this Act, be liable for summary eviction.

(4) Any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both."

(3.)The appellant thereafter had shifted to a temporary accommodation as directed by an order of a Single Judge of the Bombay High Court in Civil Application No. 2967 of 2000. This application was taken out in connection with an appeal arising out of a matrimonial proceeding pending between the appellant and respondent no. 8 at that point of time. We shall refer to that proceeding later in this judgment. On her vacating the premises, redevelopment work stood completed and the new building constructed on the said land was given its identity as "Om Apartment".

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