KHODADAD ARDESHIR LEADER Vs. SUNDHAKAR ANANTRAM SHETTY

JUDGEMENT

(1.) THOUGH the suit itself was disposed of by consent terms filed on 25-6-1993, the matter is pending before this Court on the claim by the defendant to the suit, that the applicants herein who had acquired the land and building and have reconstructed the building under the provisions of Maharashtra Housing and Area Development Act, 1976, have to make available to them, an area admeasuring 176 sq. mtrs which is the area which according to defendants was taken possession of by the Court receiver.

(2.) A few facts may be set out for the purpose of deciding the controversy. A suit came to be filed before this Court, by one Khodadad Ardeshar Leader and others as plaintiffs against the present defendant. That suit was filed some time in the year 1978. There were some disputes between the parties to the suit pursuant to which a Court receiver came to be appointed. There are several orders passed by this Court. The first such order is dated 29-7-1988. In this order the Court held that the area covered by the restaurant, mezzanine floors and the passage admeasures respectively 1112. 00, 550. 00 and 231. 30 sq. ft. admeasuring totally 1893. 30 sq. ft. This converted into metres works out to 176. 00 sq. mtrs. The order itself shows that the defendants contention that the defendants are in possession of the passage admeasuring 231. 30 sq. ft. was disputed by the plaintiffs. Next is order of Dhanuka, J. , dated 29-4-1991. The contention of the applicant MHADA who had intervened in the meantime was heard. The case of the applicant was that as per the sanctioned plan the authorised area of the restaurant worked out to be 736. 27 sq. ft. only. The learned Judge noted that it will not be possible to decide the question as to what would be the exact entitlement of the defendant in the reconstructed building. The Court then observed that the applicant Board to take possession of the suit premises and to hand over area to defendant as per the entitlement of the defendants. The next is order dated 11-12-1991 passed by Shrikrishna, J. The Court noted that there is a serious dispute, as to what exactly is the sanctioned area of the premises and that the original sanctioned plan does not appear to be available. The Court has noted that the applicants rely on the administratively approved plan dated 12th October, 1972 prepared by Architect Mr. A. R. Joshi. The Court then observed that considering the contention of the parties, the issue cannot be decided merely on affidavits and parties will have to be given an opportunity to lead evidence. The applicant authority was ordered to reconstruct the rest of the building except suit premises. The authorities were directed to keep the evidence ready. After that is the order dated 25-6-1993 of I. J. Shah, J. By this order, the suit was disposed of in terms of the consent terms. Consent terms does not provide or determine what was the area except that the Court Receiver was to hand over the possession to the defendant and not to the plaintiff. The suit thus came to be disposed of. It seems that the applicants were allowed to re-construct the building including the area occupied by the respondent.

(3.) AFTER reconstruction, applicant Board has handed over to the defendant an area of 720 sq. ft. which according to applicant Board was entitlement of the defendant. The defendant not satisfied with that area moved the Court Receiver that it should be handed over an area of 176 sq. mtrs less the already handed over. Based on that, Receiver has submitted report to this Court for directions and the matter has been pending hearing for a considerable length of time.