“Can’t Be Party to A Widow Being Thrown out of Her House after 50 Years, Where is The Justice?”: Bombay HC

Feb16,2023 #Bombay High Court #MHADA
Bombay High Court Law Insider

Sanjeev Sirohi

Published on: 16 February 2023 at 07:05 IST

While decisively taking the bull by the horns, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Shashikala Kishan Yewale vs The State of Maharashtra & Anr in Writ Petition No. 4862 of 2022 in exercise of its ordinary original civil jurisdiction that was pronounced as recently as on January 18, 2023 made it absolutely clear that it couldn’t be party to a widow being possibly evicted from her lawfully occupied home of 50 years! No doubt, the Court also very rightly directed the Maharashtra Housing and Development Authority (MHADA) to add her name as a tenant/occupant of the 160 square feet premises in Mumbai.

It must be also certainly mentioned here very clearly that the Division Bench of the Bombay High Court comprising of Hon’ble Mr Justice GS Patel and Hon’ble Mr Justice SG Dige pointed out that on one hand MHADA had a policy to temporarily accommodate even trespassers but in the present case they were insisting on reserving their rights to evict an old woman, lawfully living in the premises.

The Bench very rightly questioned that, “Where is the justice then?”

At the very outset, this remarkable, robust, rational and recent judgment by the Division Bench of Bombay High Court comprising of Hon’ble Mr Justice GS Patel and Hon’ble Mr Justice SG Dige sets the ball in motion by first and foremost putting forth precisely in para 1 that, “Rule. Rule is made returnable forthwith in the peculiar facts and circumstances of the case. The Petitioner is a widow. She seeks protection from imminent eviction by MHADA from her Room No. 171, 4th floor, Sita Sadan, Dattatray Lad Marg, Kalachowki, Mumbai 400 033. This is a tenement of about 160 sq ft for residential purposes. She has made representations, the last of which is on 10th December 2019, but which have met with no response.”

To say the least, the Division Bench then mentions in para 2 that, “She has today, speaking in Marathi, personally confirmed to this Bench her awareness of the Petition, the reliefs that it seeks and her familiarity with the facts. Very briefly stated they run like this.”

To put things in perspective, the Division Bench then envisages aptly in para 3 stating that, “These premises were originally in the occupation of and tenanted by one Raghunath Chavan. They were granted to him for several years prior to 1960. Raghunath transferred the tenement to his cousin Babasaheb Ganpati Yewale,”.

They executed an Affidavit dated 24th July 1980. A copy is annexed. There was also an indemnity bond. There is documentation annexed to show that MHADA accepted that the Yewale family has been in possession and was found to be in possession of the premises from as long ago as 1991, meaning that they were there even earlier.”

 While continuing in the same vein, the Division Bench then enunciates in para 4 that, “Babasaheb in turn executed a document in the nature of an Affidavit and Indemnity in favour of his nephew, Kishan Dhondiram Yewale, transferring the tenement,”.

A copy is annexed. Kishan sought the transfer formally to his name and an inspection report was prepared by MHADA which showed Kishan, Shashikala Sunil Dhondiram Yewale and Anil Kishan Yewale in possession. Kishan filed another application for recording the transfer on 14th June 1994 and in fact paid transfer fees of Rs. 15,000,”.

It seems that on 29th September 1994 MHADA demanded compliance and asked for certain documents such as the rent receipts, ration cards etc. Prima facie these would indicate that there is no dispute about possession or specifically that Kishan and Shashikala were in fact in possession.”     

Further, the Division Bench then lays bare in para 5 stating that, “Exhibit “J” at page 46 is a curious document. It was drawn up by MHADA. It shows an acceptance of the transfer but it is undated and was never signed. Recently an application was once again made on 10th December 2019, this time with all necessary documents including the form, photographs, an affidavit, rent receipts of the earlier tenements, copies of the Agreements and so on.”

Furthermore, the Division Bench then mentions in para 6 disclosing that, “MHADA refuses to act.”

Do note, the Division Bench then reveals in para 7 stating that, “Shashikala says that she married Kishan in 1984. Even on the date of her marriage, 40 years ago, Kishan was already in possession.”

Most rationally, the Division Bench then minces no words to forthrightly observe in para 8 holding that, “The stand of MHADA is that if the Court so orders MHADA will “consider” the application made by Shashikala,”.

This will only start the cycle again. We do not understand how MHADA could have been inactive for more than 40 or 50 years like this and can now say that it will only consider the application, meaning that it may decide even to reject it,”.

If it does so it will now initiate eviction proceedings. To allow this would be surely inequitable and unjust. Shashikala and her husband are by no means trespassers on this premises. They have occupied them as a family and they have done so openly, to the knowledge of MHADA and its officials. There are at least two reports by MHADA itself showing their possession,”.

Perhaps, what is missing is some form of official documentation. We are now asked to direct that Shashikala should swear some affidavit before a Notary. We do not see the need for that since she has made a statement personally to us today in open Court. We trust that MHADA is not saying that an affidavit before a Notary enjoys a higher status than a statement made to judges of the High Court.

Most significantly and also most forthrightly, the Division Bench then further also minces absolutely no words to hold succinctly in simple, straight and suave language in para 9 that, “We have absolutely no reason to disbelieve what Shashikala says. It is clear that justice and equity are both on her side. It is not pointed out by MHADA how any of her actions can even remotely be said to be contrary to law, illegal or unlawful,”.

All that we have heard MHADA saying is it will exercise some sort of discretion and may now evict and throw out on the street a lady who has lived in the premises for nearly half a century. We refuse to allow ourselves to be a party to any such executive or administrative action,”.

Curiously, MHADA itself is under a policy where it gives or allots — entirely free of cost — permanent alternative accommodation even to trespassers in MHADA transit premises. So on the one hand, MHADA rewards clear illegalities like trespass, but on the other wants to pursue eviction against bona fide occupiers whose possession is noted even on MHADA records and against whom MHADA has taken no action for 50 years,”.

On the contrary, it has accepted the transfer sought by Kishan and now Shashikala — it only requires some ‘documents’. Viewed from this perspective, MHADA’s refusal to act, and its proposal to reserve rights to proceed against Shashikala are clearly arbitrary and thoroughly unreasonable,”.

We have to ask: where is the justice in such an approach? If we were to accept MHADA’s stand, we would be lending authority to a manifest injustice.”

As an inevitable fallout, the Division Bench then mandates in para 10 holding that, “In the result the Petition succeeds and perhaps, in moulding relief, it succeeds beyond what it originally demanded.”

Be it noted, the Division Bench then directs in para 11 noting that, “MHADA is directed to forthwith update and amend its records to show Shashikala Kishan Yewale as the lawful tenant/occupant of Room No. 171, 4th floor, Sita Sadan, Dattatray Lad Marg, Kalachowki, Mumbai 400 033.”

What’s more, the Division Bench then also mandates in para 12 directing that, “The necessary changes are to be made within 10 days from today.”

In addition, the Division Bench then also further directs in para 13 mentioning that, “All concerned will act on an authenticated copy of this order.”

Finally, the Division Bench then concludes by holding in para 14 that, “For this one last time, we refrain from imposing costs. But MHADA should not be so sanguine as to imagine that we will continue to show such restraint. Where, in future, we find MHADA — or any other authority — to have acted in so thoroughly an unreasonable manner against citizens and residents, we will express our disapproval by making an order of costs. And the amount of costs will indicate the extent of our disapproval.”     

All said and done, it needs no rocket scientist to conclude that the Bombay High Court is extremely miffed at the totally arbitrary, arrogant and whimsical manner in which MHADA has acted in this particular case and that too against a hapless widow as we have already discussed quite in detail hereinabove.

It thus therefore merits no reiteration of any kind that MHADA must definitely pay heed to what the Bombay High Court has pointed out and do course correction as has been directed also in this leading case! If it fails to pay heed then it will make itself vulnerable to being ordered to pay a huge compensation by the Bombay High Court as is quite palpably clear also if one takes a cursory look at this notable judgment! So it is in its own best interest that MHADA must fall in line and act accordingly as directed! Of course, there can be just no denying it!    

Sanjeev Sirohi, Advocate

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