Bombay High Court
AMRIT BANSRAJ SAHU AND ORSversusMAHARASHTRA HOUSING AND AREA DEVELOPMENT AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- SHARMILA U DESHMUKH
Holding
The court held that the petitioners must comply with the MHADA NOC conditions, surrender the identified surplus flats and file an undertaking to secure the area for the Dave family pending the appeal.
Summary
The petitioners, a family of six, challenged orders issued by MHADA directing them to obtain amended plans, allocate a 185 sq ft shop area to the Dave family, and surrender surplus built‑up area of 53.36 sq m to the Mumbai Building Repairs and Reconstruction Board. The orders were based on a trial‑court decree dated 18 Oct 2010, which the petitioners have appealed and obtained a stay of. The petitioners argued they are ready to hand over flats 302 and 303 as surplus and to file an undertaking securing the 156 sq ft area for the Dave family pending the appeal. The court held that, despite the stay, the petitioners must comply with the conditions of the MHADA NOC, including surrendering the identified surplus flats and filing the undertaking, and directed MHADA to consider any further application within four weeks. Consequently, the writ petition was disposed, effectively dismissing the petitioners’ challenge.
Issues considered
- Whether the order directing compliance with the trial‑court decree is enforceable while the decree is stayed pending appeal.
- Whether the petitioners are required to surrender surplus built‑up area beyond the stipulated 53.36 sq m and whether flats 302 and 303 satisfy that requirement.
- Whether MHADA can compel the petitioners to allocate a larger area to the Dave family before the appellate decision is final.
Legislation cited
Subjects
- redevelopment
- NOC compliance
- surplus area surrender
- rehabilitation of occupants
- stay of decree
- MHADA
- municipal authority
- occupancy certificate
Judgment
2026:BHC-AS:9624
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12377 OF 2022
1. Amrit Bansraj Sahu ]
Age : 62 years ]
2. Mohanlal Bansraj Sahu ]
Age : 59 years ]
3. Omprakash Bansraj Sahu ]
Age : 55 years ]
4. Bela Bansraj Sahu ]
Age : 50 years ]
5. Sushila Bansraj Sahu ]
Age : 42 years ]
6. Dhanraj Bansraj Sahu ]
All of them inhabitants of Mumbai residing ]
at 65F, Sheetal Cnhaya Co-Op. Housing ]
]
Society Ltd., 5th Floor, S. K. Bole Marg, Dadar,
]
Mumbai – 400028. ] ...Petitioners
Versus
1. Maharashtra Housing and Area ]
Development Authority ]
A statutory authority constituted under the ]
]
Maharashtra Housing and Area Development
]
Act, 1976 ]
Having its registered office at Griha Nriman ]
Bhavan, Kalanagar, Bandra (E), Mumbai – ]
400050. ]
2. Mumbai Building Repairs and ]
Reconstruction Board ]
A statutory authority constituted under the ]
]
Maharashtra Housing and Area Development
]
Act, 1976 ]
Having its registered office at Griha Nirman ]
Bhavan, Kalanagar, Bandra (E), Mumbai – ]
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400050. ]
3. The State of Maharashtra ]
Through the Secretary, Housing Department, ]
Mantralaya, Madam Cama Road, Mumbai – ]
]
400021.
] …Respondents
——————
Mr. Kunal Bhanage, Mr. Akshay Pawar for Petitioner.
Mr. P. G. Lad, Ms. Sayali Apt, Mukalidharan Kalathil for Respondent No. 5-
MHADA.
——————
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 22nd June, 2026
Oral Judgment :
1. By the present Petition, the challenge is to the order dated 17 th
February, 2021 and notices dated 9th February, 2022 and 18th July, 2022
by which the Respondent No. 1-MHADA has directed the Petitioner to
get the amended plans approved from MCGM and provided carpet area
of 185 sq. ft. shop premises to Hansaben Jayantilal Dave and others in
the newly constructed building in view of the judgment of the Trial
Court dated 18th October, 2010 passed in S.C. Suit No. 2334 of 2024 and
to surrender the surplus built-up area admeasuring 53.36 sq. metre to
the Respondent No. 2-M.B.R. and R Board.
2. The Petitioners had obtained no objection certificate of MHADA
for the purpose of redevelopment of property at final plot no. 307
which NOC was granted on 3rd October, 2000 subject to the terms and
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conditions contained therein which included a condition that all the
occupants of old building shall be re-accommodated in new building
and that NOC for cocupation certificate for free sale buildings will be
given only after all the old occupants are re-housed in newly
constructed building. One of the condition of NOC was surrender of
surplus built-up area admeasuring 53.36 sq. metre to M.B.R. and R
Board. The impugned order and notices came to be issued for non-
compliance of handing over of surplus area to M.B.R. and R Board and
for failure to rehabilitate the old occupant in accordance with the
judgment of City Civil Court dated 18th October, 2010.
3. Mr. Bhanage, learned counsel appearing for Petitioner would
submit that though the Repair Board certified the area occupied by
Dave family as 156 sq. ft. built-up area, the said Hansaben Dave has
approached the Trial Court seeking allotment of area of 185 sq. feet.
He submits that the Appeal has been filed by the Petitioners against
the order of Trial Court and the decree has been stayed. He submits
that in view thereof, the Respondent-Board could not have passed the
impugned order directing compliance with the order of Trial Court.
Insofar as the handing over of surplus area is concerned, he has
tendered the additional Affidavit stating that presently, there are
three flats on the third floor and Flat Nos. 302 and 303 which are
surrendered to the Petitioner’s family by the erstwhile eligible
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occupant can be handed over to MHADA as surplus area, though the
same would exceed surplus area of 53.36 sq. metre. He submits that
the Petitioners have not sold any constructed flat in the said building
to the third-party and except, Dave family, all other occupants have
been duly accommodated.
4. He submits that the Petitioner is ready and willing to submit an
undertaking to Repair Board/MHADA that they would abide by the
orders passed by the Appellate Court in respect of allotment in favor
of Dave family. He would further submit that the certified area of 156
sq. feet built-up area qua the Dave family would be secured and kept
vacant and no third-party rights would be created in respect of the said
area. He would further submit that the Petitioners would submit
necessary documents to MHADA to demonstrate the surrender of Flat
Nos. 302 and 303 by erstwhile occupant, which can be accepted by
MHADA as surplus area. He would further submit that considering the
compliance of conditions of NOC by the Petitioners, as further
construction is required to be carried out, the application, if filed with
MHADA for NOC for seventh floor and for issuance of occupation
certificate/part occupation certificate, it may be considered
expeditiously by MHADA.
5. Mr. Lad, learned counsel appearing for the Respondent-MHADA
would submit that the order came to be issued in view of the decree of
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the Trial Court and also for the reason that the surplus area was not
handed over. He would submit that in the sanctioned plan, Flat No. 5 &
6 of third floor was earmarked for MHADA and as the same was not
handed over, the order has been rightly passed. He submits that it is for
the Petitioners to satisfy the authorities that the Flat Nos. 302 and 303
can be handed over in lieu of the surplus area to the MHADA, which
authorities will consider on the basis of documents tendered by the
Petitioner. He submits that it is also necessary to secure the certified
area of 156 sq. feet built-up area in respect of Dave family. He submits
that in event, the application is filed by Petitioner seeking NOC for
further construction of occupation certificate, the same will be
considered by MHADA in accordance with law.
6. I have considered the submissions and perused the record.
7. The impugned order/notices seeks compliance of the conditions
of NOC issued by MHADA of accommodating the occupants in
redeveloped building and handing over surplus area to MHADA. Insofar
as surplus area is concerned, the Petitioners are ready and willing to
handover Flat Nos. 302 and 303 admeasuring 27.87 carpet area each,
which was surrendered to the Petitioner’s family. The pleading in
paragraph no. 4 of additional Affidavit would indicate that the
erstwhile occupant has surrendered the premises to the present
Petitioners. In view of the said statement, the Petitioners to satisfy
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MHADA authorities that Flat Nos. 302 and 303 is available for being
handed over to MHADA as surplus area. In event, necessary documents
evidencing the handover by the erstwhile occupant to the Petitioner’s
family is produced, the authorities to take possession of the surplus
area.
8. Insofar as compliance with judgment of the Trial Court is
concerned, as the First Appeal has been filed by the Petitioners and
Decree has been stayed, necessary undertaking to be filed by the
Petitioners with MHADA authorities undertaking to secure the
certified area of 156 sq. ft. built-up area till the pendency and final
disposal of the First Appeal and secondly, that the Petitioner’s would
adhere to the orders passed by the Appellate Court insofar as
rehabilitation of Dave family is concerned.
9. In event, Petitioners file an application with MHADA seeking
NOC for further construction or for issuance of occupation
certificate/part occupation certificate, considering that all the tenants
except the Dave family have been duly re-accommodated in the new
building, MHADA is requested to consider the application expeditiously
and in any event, within period of four weeks from the date of filing of
the application, in accordance with law.
10. The applications to be considered by accepting the undertaking
filed by the Petitioners for rehabilitation of Dave family.
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11. Writ Petition is disposed of in the above terms.
12. In view of above, nothing survives for consideration in pending
Applications, if any, and the same stand disposed of.
[SHARMILA U. DESHMUKH, J.]
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