JAYSINH MORARJI POPAT Vs. GULABBEN HANSRAJ DEDHIA

JUDGEMENT

(1.) BY this appeal, appellants challenge the order dated 6/ 7/04/1994 passed by the learned Single Judge of this Court in writ Petition No. 1987 of 1988. That writ petition was filed by the present respondents Nos. 1,2 and 3.

(2.) THE facts that are relevant and material for deciding this appeal are that the present respondent Nos. 1, 2 and 3 (hereinafter referred to as the petitioners) are the legal representatives of the deceased Shri Hansraj Dedhia, who expired on 29/05/1988. Respondent No. 1 Gulabben Hansraj Dedhia is the widow, whereas respondents Nos. 2 and 3 are the sons. The deceased Hansraj Dedhia was the tenant of flat No. 4 on the second floor of the building known as "shakti Nivas". That building was owned by one manghibai Morarji Narsi, who was also residing in that building. The said landlady Manghibai has expired and has left behind a will, which has been probated. Under that Will, income from the building is to be utilised for the maintenance of one Kasturi, a grand daughter of the landlady, during her life time and after the death of the said Kasturi, the property is to be sold and proceeds are to be divided amongst the children of original respondents Nos. 3 and 4, who are the present petitioners.

(3.) IT appears that the building was in a dilapidated condition. Therefore, the Maharashtra Housing and Area Development Board, which is the respondent No. 5 in the present appeal and respondent No. 2 in the writ petition (hereinafter referred to as the "board") issued a notice dated 21/12/1981 to the deceased Hansraj under section 90 (1) of the Maharashtra housing and Area Development Act, 1970 (hereinafter referred to as the "act")stating therein that the Board proposes to undertake structural repairs to the building and for that purpose the said Hansraj is to vacate the premises occupied by him and that he has been allotted temporary accommodation. It appears that nothing further was done pursuant to that notice. Ultimately, on 14-6-1983 another notice was issued to the said Hansraj by the Board asking him to vacate the premises by 13-6-1983. It appears that even thereafter nothing happened and the deceased Hansraj and other tenants in the building including the landlady continued to occupy the building. It further appears that on 21/05/1985, the landlady issued a notice terminating the tenancy of the suit flat of the deceased Hansraj. In this situation, while the board was contemplating carrying on structural repairs to the building and the landlady had issued a notice terminating the tenancy of the suit flat of the deceased Hansraj, the building itself collapsed on 30/12/1987. By a letter dated 1-1-1988 written to the Assistant Commissioner of Police, the deceased Hansraj informed that on the date of the collapse of the building that flat No. 4 was occupied by five persons namely the deceased Hansraj, his wife Gulabben and three servants. The deceased made an application dated 3-2-1988 to the Board for transitory accommodation. In that application he stated that on the date of collapse of the building he was residing in the suit flat along with his wife and three servants. It appears that the owners of the building moved the Board for grant of no objection for construction of the new building on the same plot of land. It may be pointed out here that in the mean time admittedly the Board provided transitory accommodation to the deceased Hansraj. Thereafter, Hansraj expired on 29/05/1988. In so far as the application made on behalf of the owners of the building for no objection certificate for redevelopment or construction of a new building on the same plot of land by the owners of the property the Board by letter dated 23-4-1988 informed that the Board may grant no objection certificate for redevelopment of the property subject to the fulfilment of the conditions which were mentioned in the letter. One of the conditions was that all occupiers or tenants in the old building should be rehoused in the newly constructed building and every occupier shall be provided with carpet area equivalent to what he was occupying in the old building. The owners were to submit the list of occupiers of the old building and the list should also show the carpet area occupied by them in the old building. It was also stated that, if the owners are not ready to redevelop the property on the conditions which are mentioned in the letter, the Board is likely to acquire the property so that it is made available to the co-operative society of the occupiers or other eligible persons for redevelopment. One of the conditions was also this that the construction of the building was to be completed within a period of 24 months from the date of starting of demolition of the old building. It was one of the conditions that suits, if any, filed by the owners in Civil Court should be withdrawn before submitting application for No objection certificate. It appears that with reference to the letter dated 23-4-1988 addressed by the Board to the land owners letter dated 21-7-1990 was written by the owners to the Board stating therein that they are willing to comply with the conditions mentioned in the letter dated 23-4-1988. An undertaking on a stamp paper of Rs. 10/- dated 18-7-1990 was also enclosed with the letter dated 21-7-1990, wherein it was stated that the land owners undertake to abide by all the conditions mentioned in the letter of the Board dated 23-4-1988. It was specifically stated that all actual occupiers of the tenements will, subject to the Court's orders be rehoused. The land owners also submitted the bond of indemnity dated 17/08/1990 on a stamp paper of Rs. 50/-, wherein in so far as the Flat No. 4 is concerned, it was stated.