AISHWARYA ATUL PUSALKAR versus MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS. on 27 April 2020

SUPREME COURT REPORTS

[2020] 6 S.C.R.

AAISHWARYA ATUL PUSALKAR

v.

MAHARASHTRA HOUSING & AREADEVELOPMENT AUTHORITY & ORS.

(Civil Appeal No. 7231 of 2012)

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APRIL 27, 2020

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Maharashtra Housing and Area Development Act, 1976 –ss.2(25), 79, 95A and 177 – Family property of respondent no.8-Chusband was redeveloped – During redevelopment, occupantsthereof shifted to temporary accommodation as required,appellant-wife did not – She shifted on the order of High Courtpassed in matrimonial proceeding pending between the parties –In parallel developments pertaining thereto, the decree of judicialDseparation granted to respondent no.8 was set aside – Plea fordivorce, dismissed – Appellant filed writ petition inter alia fordirections to MHADA to rehouse her in the two flats allocated torespondent no.8 and his family in the redeveloped building, whichas per her is her matrimonial home – Dismissed – Held: When abuilder has discharged his obligation by accommodating theEoriginal owners in the redeveloped portion as per such a scheme,a lady married into that family is not entitled to invoke the writjurisdiction of High Court to enforce her right to matrimonial homeon the basis of said statute, if her husband does not permit her toreside in the allocated portion – Though appellant was dishousedas an occupier applying the provisions of 1976 Act, claim of herFrehousing is based on her status as respondent no.8’s wife – Asof now, the decree of judicial separation stands invalidated andshe is the legally wedded wife of respondent no.8 – However, theoriginal building that constituted her matrimonial home has beendemolished and large portions of the redeveloped building onGthe same plot has been parted with – Traditionally, hermatrimonial home at present would be the premises in which herhusband is residing – Judicial forum having fact-findingjurisdiction would be the proper forum for adjudicating claimof this nature – Further, respondent no.8 and the builderuniformly stated that a flat in the same building is available toHaccommodate the appellant – Dispute pending for very long,

directions issued u/Art.142 – Protection of Women from DomesticViolence Act, 2005 – Hindu Adoption and Maintenance Act, 1956.

Disposing of the appeal, the Court

HELD: 1.1 The position as it stands now is that the decreeof judicial separation stands invalidated and as of now, theappellant is the legally wedded wife of the respondent no.8. Shehas been out of her matrimonial home since the year 2000. Butsuch right cannot be enforced invoking the writ jurisdiction.Moreover, the original building that constituted her matrimonialhome has been demolished. Large portions of the redevelopedbuilding on the same plot has been parted with. Now going by itstraditional meaning, her matrimonial home at present would bethe premises in which her husband is residing. In this complexperspective, a judicial forum having fact-finding jurisdiction wouldbe the proper forum for adjudicating her claim of this nature. Theappellant drew attention to Section 177 of the MaharashtraHousing and Area Development Act, 1976 to contend thatdisputes arising out of the said Act cannot be adjudicated uponby a Civil Court. But, the dispute raised by her does not ariseout of any of the provisions of the 1976 Act. Though she wasdishoused as an occupier applying the provisions of the 1976Act, claim of her rehousing is based on her status as wife of therespondent no. 8. Such claim has to be adjudicated upon by theCivil Court or the Family Court or any other forum the law mayprescribe. Such right of the appellant cannot be diffused with theright of her husband under the 1976 Act, whose family property,part of which he is the owner, has been reconstructed. [Para11][353-C-F]

1.2 The Bombay High Court has in substance non-suitedher on the ground that the Writ Court was not the appropriateforum for granting her relief. The Court does not per se find anyerror in such approach. But, in course of this appeal, the husband(respondent no. 8) has filed an affidavit stating that he has setapart the Flat No. 101 in which the appellant could beaccommodated. The appellant on the other hand has assertedthat the allocation of the same flat was earmarked for one Mr.Nayak Satam, a tenant, as per the plan. Considering the fact thatthe dispute is pending for a very long time, certain directions ABC

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Agiven in exercise of jurisdiction under Article 142 of theConstitution of India which will conclude the dispute. This ishaving regard to the fact that the builder and the husband of theappellant have uniformly stated that Flat No. 101 in OmApartment is available to accommodate the appellant. Theappellant should be given the choice of occupying that flat as herBresidence. For this purpose, however, certain cautionary measuresare also necessary to ensure that the said flat is not otherwiseparted with or encumbered in any form. [Paras 12, 13][353-G-H;354-A-C]

1.3 In the event, however, the appellant wants to establishCher right to reside in her matrimonial home with her husband,she shall be at liberty to approach the Family Court or any otherforum of competent jurisdiction, as she may be advised. But insuch a situation, she would not be entitled to claim any rightspecifically in respect of Flat No.101 at Om Apartment on theDbasis of directions issued in the preceding paragraph includingthe four sub-paragraphs thereof. The appellant shall vacate herexisting accommodation for which expenses appears to have beenand continues to be incurred by the Respondent No. 8. The factof incurring such expense has been pleaded in the additionalaffidavit filed on behalf of Respondent No. 8, verified on 29[th]EAugust 2019. Appellant given eight months’ time to vacate herpresent residence. In the event she chooses to opt for Flat No.101 in “Om Apartment” as her residence, and the otherconditions specified in paragraph 13 and its various sub-paragraphs are satisfied, then she shall vacate her presentFpremises from the date she takes possession of the flat at “OmApartment”. Respondent No.8 shall give her possession of thesaid premises on a date mutually convenient to the appellant andthe Respondent No.8 within the aforesaid period of eight months.Otherwise, the course to be taken by her shall be guided by the direction that may be given by a Court of competent jurisdiction,Gwhich the appellant may approach. Till the time the appellantretains possession of the present residential accommodation,which period shall not exceed eight months, the respondent no.8shall continue to pay rent thereof and her possession thereofshall not be disturbed. The obligation of the respondent no.8 toHpay rent and ensure peaceful possession of the present residential unit of the appellant shall not exceed the eight monthsperiod, as stipulated. Unless of course, a Court of competentjurisdiction issues any other direction at the instance of theappellant. [Paras 14-16][355-C-H; 356-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7231of 2012.

From the Judgment and Order dated 15.10.2008 of the High Courtof Judicature at Bombay in Civil Writ Petition No. 1398 of 2008.

Bhargava V. Desai, Satyajit A. Desai, Ms. Anagha S. Desai,Chirag M. Shroff, Ms. Mahima C. Shroff, Ms. Yashika Verma, Nitin V.Gangal, Sachin Patil, Ranjit Kumar Rathod, Ms. Sheetal Patil, Advs. forthe Respondents.

Appellant-in-person.

The Judgment of the Court was delivered by ANIRUDDHA BOSE, J.

1. The original writ petitioner, who is the appellant in this proceedingseeks to enforce her right to reside in her matrimonial home. The locationof the house where she wants to establish her right to reside is comprisedin 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 ownersof the said plot, on which stood a residential building known as “Usha”.We find from an additional affidavit filed in this proceeding affirmed on29[th] August 2019 by the respondent no. 8 that the said building wasoriginally owned by three branches of the “Pusalkar” family in equalproportion. The branch of the respondent no. 8 stemmed from ShivramDattatryea Pusalkar, carpet area of 1100 sq.ft. comprised of their share.On death of said Shivram Dattatreya Pusalkar, his share devolved inequal proportion to his widow Shobhana Shivram Pusalkar (sincedeceased), their daughter Gayatri Pratap Puranik and the respondentno. 8. That building upon demolition was redeveloped by a firm of builders,BUILDARCH. Such redevelopment was done after obtaining a noobjection certificate from the Mumbai Building Reforms andReconstruction Board (Board) in terms of the provisions of MaharashtraHousing and Area Development Act, 1976 (1976 Act). Under a schemeapproved under the provisions of the said Act, during the period of A

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Aredevelopment, the occupants were required to shift to transit ortemporary accommodations. The appellant’s contention is that suchexercise of redevelopment had been undertaken in pursuance of a statutoryscheme framed under Section 79 of the 1976 Act which has provisionsfor rehabilitation of dishoused occupiers. The members of the family ofthe appellant after her marriage, comprising of her husband and mother-Bin-law appear to have had shifted to the transit accommodation in theyear 2000. The appellant-writ petitioner remained in the original buildingwith her two minor sons. Respondent No. 8, Atul Shivram Pusalkar,however, has claimed that both their sons are major by age now and areworking with him in his business. Respondent No. 8 has also stated thatCone of his two sons is residing with him.2. As the appellant had continued to reside in the old building, theMHADA authorities issued a notice upon her under Section 95-A of the1976 Act. The said provision stipulates:- “95-A. (1) Where the owner of a building or the members of theDproposed co-operative housing society of the occupiers of thesaid building, submits a proposal to the Board for reconstructionof the building, after obtaining the written consent of not less than70 per cent of the total occupiers of the building and a No ObjectionCertificate for such reconstruction of the building is issued by theEBoard to the owner or to the proposed co-operative housing societyof the occupiers, as the case may be, then it shall be binding on allthe occupiers to vacate the premises:

Provided that, it shall be incumbent upon the holder of such NoObjection Certificate to make available to all the occupants ofFsuch building alternate temporary accommodation.

(2) On refusal by any of the occupant to vacate the premises asprovided in sub-section (1), on being approached by the holder ofsuch No Objection Certificate for eviction of such occupiers, itwould be competent for the Board, notwithstanding anythingGcontained in Chapters VI and VII of this Act, be liable for summaryeviction.

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

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

3. The appellant thereafter had shifted to a temporaryaccommodation as directed by an order of a Single Judge of the BombayHigh Court in Civil Application No. 2967 of 2000. This application wastaken out in connection with an appeal arising out of a matrimonialproceeding pending between the appellant and respondent no. 8 at thatpoint of time. We shall refer to that proceeding later in this judgment. Onher vacating the premises, redevelopment work stood completed andthe new building constructed on the said land was given its identity as“Om Apartment”.

4. The mother of the respondent no. 8 passed away beforeinstitution of the present appeal. Her interest in this proceeding is beingrepresented by the respondent no. 8 himself and his sister, Gayatri PratapPuranik (respondent no.9 in this appeal). From the counter-affidavit ofthe MHADA Authorities, we find that certain arrangement was enteredinto between the builder and the family of the appellant’s husband.Relevant particulars of such arrangement would appear from paragraphs8 (a) to (e) of the said affidavit of MHADA and the authorities constitutedunder the 1976 Act (respondent nos. 1 to 4) in this appeal. Theseparagraphs read:- “8. (a) The Petitioner’s husband (i.e the Respondent No.8 herein),her mother in law and her sister in law (the Respondent No.9herein) were co-owners of collective 1/3[rd] undivided share, right,title and interest in the property bearing Plot No. 118, Dr. M.B.Raut Road, Shivaji Park, Dadar Mumbai 400028 and in the oldbuilding standing thereon. As such, the petitioner along with hertwo sons and the said co-owners was in common occupation of aresidential premises admeasuring around 1100 sq. ft (carpet) inthe old building standing on the said property. The Petitioner hasreferred to the said old residential tenement as her matrimonialhome.

(b) It is learnt that vide an agreement dated 1.07.1999 executedbetween the said co-owners and the Respondent No. 7, the co-owners had agreed to sell, convey and transfer their collective1/3[rd] undivided share, right, title and interest in the said property A

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for the consideration and on terms and conditions recorded therein.Under the terms of the said agreement, the Respondent No.7 hadagreed to provide to the co-owners as and by way of permanentalternative accommodations, three premises, collectivelyadmeasuring 1100 sq.ft. (carpet) in lieu of area occupied by themin the old building standing on the said property. Being the legallywedded wife of the Respondent No.8, the Petitioner had a rightto reside along with her husband in the temporary alternateaccommodation and permanent alternate accommodation allottedto him either along with the remaining co-owners or independently.

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(c) As the matrimonial dispute between the Petitioner andRespondent No.8 was going on when the aforesaid agreementwas executed, the Respondent No. 7 at the insistence of thePetitioner and the Respondent No.8, provided her an independenttemporary alternate accommodation at Room No.20, 1[st] floor,Balgovinddas Society, Manorama Nagarkar Marg, Matunga,Mumbai 400016.

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(d) The answering respondent has learnt that in pursuance to anAgreement for Assignment dated 16.6.2004 executed betweentwo amongst the said co-owners viz. Smt. Shobhana ShivramPusalkar (Petitioner’s mother-in-law) and Mrs. Gayatri PratapEPuranik (the Respondent No.9 herein) being the Assignors andthe Respondent No.7 being the Assignee, the said Assignors haveforever and absolutely assigned and transferred in favour of theRespondent No.7, their respective share i.e. 733 sq.ft.(carpet)area out of 1100 sq.ft. (carpet) area agreed to be allotted to themunder the said agreement for consideration and on the terms andFconditions recorded therein. The aforesaid facts have also beendeposed by the Respondent No.7 in an affidavit dated 20[th] October,2004 filed in Civil Application No.183 of 2004 in Family CourtAppeal No.72 of 1997 and Family Court Appeal No.87 of 1997(Aishwarya Atul Pusalkar Vs. Atul Shivram Pusalkar & Anr.).

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(e) In view of assignment of area by two co-owners, theRespondent No.7 had to provide one flat admeasuring 379 sq. ft.(carpet) to the Petitioner’s husband i.e. the Respondent No.8herein. The Respondent No. 7 has accordingly allotted to theRespondent No. 8 a flat bearing No. 101 admeasuring 379 sq. ft.(carpet) on the 1[st] floor of the said building “Om Apartment”, H

constructed as per the plans lastly approved by theM.C.G.M.(hereinafter referred to as “the said new flat”).

5. There is dispute as regards actual area of allocation to therespondent no. 8 and his family by the respondent no. 7 in the newbuilding. The appellant contends such area to be 1816.61 sq. ft., out ofwhich her husband’s share would have been 605.53 sq. ft. in “OmApartment” during the period his mother was alive. The appellant,appearing in-person, has also submitted that such area was comprised intwo flats in the sixth floor of the said building, being flat nos. 601 and602. Her assertion as regards the area of the two flats is based on anapproved plan bearing no. EEBP/8145/GN/A of 15[th] October 2004. Anarchitect’s certificate to that effect forms part of Affidavit-in-Rejoinderof the appellant filed in the writ petition before the Bombay High Court,from which this appeal originates. That petition was registered as writpetition No.1398 of 2008. The stand of the respondent no. 7, the builder,however is that the plan dated 15[th] October 2004 was subsequentlyamended on 17[th] February 2006 and 22[nd] November 2006 and “OmApartment” had not been constructed in accordance with the plan of15[th] October 2004. Both the respondent nos. 7 and 8 have argued that inthe new building also, carpet area allocation was 1100 sq. ft. to thebranch of the family of respondent no. 8. Out of that area, the deceasedmother and sister of the respondent no. 8 had assigned to the respondentno. 7 for valuable consideration their respective shares coming to 733sq.ft. According to the builder and the respondent no. 8, the latter hasbeen allotted a flat bearing no. 101 having 379 sq.ft. carpet area in thesame building. The respondent no. 8 wants the appellant to shift to thatflat and in this regard he has affirmed an affidavit on 29[th] August, 2019forming part of records of this proceeding. In the verification portion ofthis affidavit, the residential address of the respondent no. 8 is shown tobe “Matushree Pearl, Sitaram Keer Road, Mahim, Mumbai.” Theappellant at present appears to be residing at 20, Balgovindas Society,Manorama Nagarkar Marg, Mumbai 400016. The Respondent no. 8has pleaded that this residence was initially provided by the builder astransit accommodation to her but at present he is paying rent for thesame. In the writ petition, out of which this appeal arises, she had askedfor direction upon MHADA authorities to rehouse her in the said twoflats. The other prayers in the writ petition included a mandatory directionfor compliance with the plan of 15[th] October 2004.

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A6. There have been certain parallel developments pertaining tothe appellant’s matrimonial dispute with her husband. In the Family Court,the husband- respondent no. 8 had been granted a decree of judicialseparation in the year 1997. His plea for divorce was not accepted bythe Family Court. The decree of judicial separation was passed on 30[th]July, 1997. Both the appellant and the respondent no.8 appealed againstBthe said judgment and decree before the Bombay High Court. The HighCourt in a common judgment delivered on 2[nd] July, 2001 had allowed theappellant’s appeal, registered as FCA No. 72 of 1997 and set aside thedecree of judicial separation. The appeal of her husband (registered asFCA No. 87 of 1997) against the Family Court’s judgment refusing toCgrant divorce was dismissed. This decision was delivered by the BombayHigh Court after she had shifted to her temporary accommodation. Thecomplaint of the appellant is that after the decree of judicial separationwas invalidated, her husband and his family have not allowed her toreside in the flats allocated to them in the redeveloped building. Sheclaims in substance that such refusal is in breach of her right to reside inDher matrimonial home. It is also her case that as she had vacated theoriginal residential unit on the basis of a statutory notice, she has herright to be rehoused in those flats as part of statutory rehabilitationmeasure. The appellant thereafter filed the writ petition in the BombayHigh Court. The present appeal has been resisted by the MHADAEAuthorities, the builder (respondent no. 7), her husband (respondent no.8)and the appellant’s sister-in-law, respondent no. 9. She was impleadedin this appeal after the demise of original appellant’s mother-in-law. Theserespondents had taken the same stand before the Bombay High Court.

7. The Bombay High Court in the judgment under appeal sustainedFthe plea of the respondents that the right which the writ petitioner(appellant before us) was seeking to establish could not be enforcedinvoking jurisdiction of the Court under Article 226 of the Constitution ofIndia.It was, inter-alia, observed and held by the Bombay High Court:- “6. In our view, the claim of the petitioner is based on her contentionGthat she being legally wedded wife of the 8th respondent and thedaughter-in-law of the 9th respondent, the petitioner is entitled tooccupy flat Nos. 601 & 602 in the newly constructed building.She is claiming such a right on the basis that Flat No. 601 & 602constitute her matrimonial home. In our opinion, the present WritPetition is not an appropriate remedy for the petitioner forH

ventilating her such a grievance and that she can agitate such aclaim and make such grievances, by adopting appropriate courseof action in the Family Court and/or civil Court for the enforcementof her right that she is claiming herein. In view of the nature ofcontroversy involved between the parties, we hold that it is notpossible for us to try, entertain and decide the same in exercise ofour writ jurisdiction.

7. In view of the aforesaid discussion and the conclusions drawnby us, the present writ petition is dismissed. However, we make itclear that dismissal of this petition will not be a hurdle for thepetitioner to seek appropriate relief to which she may be entitledin law, before appropriate form, in a properly constitutedproceeding. In case if the petitioner is advised to adopt any suchremedy, the observations herein will not be considered one wayor the other, while determining the entitlement of the petitioner.”

8. Smt. Pusalkar has argued before us in-person that she wasremoved from her matrimonial home through the statutory mechanismcontained in Section 95A of the 1976 Act, which bore the threats ofpenal measure and summary eviction process. But this was during thetime the decree of judicial separation remained operative. She tracesthe root of her ‘dishousing’ to a notice dated 10[th] July 2000 (bearing no.MBR & RB/FN/GN/2136 of 2000) issued by the Board under the 1976Act. Her case is that it is composite statutory obligation of MHADA,the builder and her husband to rehouse her in her matrimonial home. It isa fact that the said respondents functioned under a statutory schemewhile redeveloping the property, commencing from approval of thedevelopment scheme, vacating the old building and re-entry into theallocated portion of the redeveloped premises by her husband’s family.The appellant was also dishoused from the said building under thatscheme. But in our opinion, when a builder has discharged his obligationby accommodating the original owners in the redeveloped portion as persuch a scheme, a lady married into that family would not be entitled toinvoke the writ jurisdiction of the High Court to enforce her right tomatrimonial home citing the provisions of the said statute, if her husbanddoes not permit her to reside in the allocated portion. She does not haveany independent claim on title or interest to that property having its genesisin that statute. Her claim of right to reside in her matrimonial home issought to be projected by her as collateral to the statutory right of her DE

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Ahusband to be rehoused or rehabilitated in the new building. But her rightto reside in her matrimonial home stands detached from and is independentof the statutory scheme under the said Act. Neither MHADA, nor thebuilder can have any further legal obligation to rehouse her. She is stakingher claim as a constructive beneficiary of the redevelopment scheme.But our opinion is that the right she is seeking to enforce, though flowsBfrom a set of events on the basis of which her husband can claimrehabilitation, is actually anchored to an independent legal principle underthe Family Law. We accept that she was an occupier under Section 2(25) of the 1976 Act, but such occupier status was dependent upon herhusband’s independent right as part owner of the property. Her rightCflowing from her matrimonial status cannot get diffused with her right ofrehousing or rehabilitation under the statutory scheme. Her right to residein her matrimonial home does not flow from the 1976 Act.

9. We recognise the appellant’s right to reside in her matrimonialhome. Such right has a legitimate basis. Though in our view theDenforcement mechanism adopted by her to enforce her right is not legallyacceptable, a brief discussion on the right she is seeking to enforce isnecessary to understand the scope of her claim. A married woman isentitled to live, subsequent to her marriage, with rest of her familymembers on the husband’s side, in case it is a joint-property. If sheresides in an accommodation as an independent family unit with herEhusband and children, the matrimonial home would be that residentialunit. This right is embedded in her right as a wife. It is implicit under theprovisions of Section 18 of the Hindu Adoption and Maintenance Act,1956 in situations that statute is applicable. The Protection of Womenfrom Domestic Violence Act, 2005 has recognised the concept of “shared Fhousehold” in terms of Section 2(s) of this statute. Alienating an immovableasset to defeat the right of a victim lady under the said Act can constitutedomestic violence, coming, inter-alia, within the ambit of the expression“economic abuse” under Section 3(iv) of 2005 Act. A Magistrate havingjurisdiction under Section 19 of the said Act is empowered to pass a

residence order to protect a victim of domestic violence from beingGremoved from her shared household. But for a husband to compel hiswife to live in a separate household, which is not her matrimonial home,an order from appropriate legal forum would be necessary. There cannotbe forcible dishousing of a wife from her matrimonial home.

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10. The respondent no. 8 claims that the appellant could beaccommodated in Flat no. 101 of the same building. But the appellant’sstand is that the said flat stands allocated to another tenant and she isbeing offered that flat with malafide intention. She has staked her claimon her right to residence in the matrimonial home, which according toher is comprised in the said two flats bearing nos. 601 and 602. From thematerials available, it appears that interest in those flats have beensurrendered by the paternal family members of the respondent no.8.

11. There appears to be some matters pending in different fora inrelation to the matrimonial dispute between the appellant and therespondent no.8. But we have not been apprised of particulars of suchmatters. The position as it stands now is that the decree of judicialseparation stands invalidated and as of now, the appellant is the legallywedded wife of the respondent no.8. She has been out of her matrimonialhome since the year 2000. But such right cannot be enforced invokingthe writ jurisdiction. Moreover, the original building that constituted hermatrimonial home has been demolished. Large portions of theredeveloped building on the same plot has been parted with. Now goingby its traditional meaning, her matrimonial home at present would be thepremises in which her husband is residing. In this complex perspective,a judicial forum having fact-finding jurisdiction would be the proper forumfor adjudicating her claim of this nature. The appellant drew our attentionto Section 177 of the 1976 Act to contend that disputes arising out of thesaid Act cannot be adjudicated upon by a Civil Court. But as we havealready observed, the dispute raised by her does not arise out of any ofthe provisions of the 1976 Act. Though she was dishoused as an occupierapplying the provisions of the 1976 Act, claim of her rehousing is basedon her status as wife of the respondent no. 8. In our opinion, such claimhas to be adjudicated upon by the Civil Court or the Family Court or anyother forum the law may prescribe. Such right of the appellant cannotbe diffused with the right of her husband under the 1976 Act, whosefamily property, part of which he is the owner, has been reconstructed.

12. Now the question arises as to whether any relief can be grantedto the appellant in this appeal. The Bombay High Court has in substancenon-suited her on the ground that the Writ Court was not the appropriateforum for granting her relief. We do not per se find any error in suchapproach. But, in course of this appeal, the husband (respondent no. 8)

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Ahas filed an affidavit stating that he has set apart the Flat No. 101 inwhich the appellant could be accommodated. The appellant on the otherhand has asserted that the allocation of the same flat was earmarked forone Mr. Nayak Satam, a tenant, as per the plan.

13. Considering the fact that the dispute is pending for a very longBtime, we shall be giving certain directions in exercise of our jurisdictionunder Article 142 of the Constitution of India which we hope will concludethe dispute. We shall do so having regard to the fact that the builder andthe husband of the appellant have uniformly stated that Flat No. 101 inOm Apartment is available to accommodate the appellant. For this reason,in our opinion, the appellant should be given the choice of occupying thatCflat as her residence. For this purpose, however, certain cautionarymeasures are also necessary to ensure that the said flat is not otherwiseparted with or encumbered in any form:- (a) The Respondent Nos. 1 and 2 shall disclose to the appellantin writing as to whether the Flat no. 101 of “Om Apartment”Dstanding on Plot No.118, Dr. M.B. Raut Road, Shivaji Park,Dadar having 379 sq.ft. carpet area is free for allocation tothe respondent no. 8 or not. This disclosure shall be made tothe appellant within a period of two months from the date ofcommunication of this order to the Respondent Nos. 1 and 2.E

(b) Within one month from the date such disclosure iscommunicated to the appellant in writing, the appellant shalltake a decision as to whether she will accept the offer to beaccommodated in said flat no. 101. The appellant shall informthe respondent no. 1, 2, 7 and 8 her decision in writing withinthe aforesaid timeframe of one month.F

(c) The husband, that is the respondent no. 8, shall also give anundertaking in the form of an affidavit affirmed before aJudicial Magistrate of First Class stating therein in clear termsthe nature of right he exercises over that flat along with copiesGof documents to establish such right. That affidavit shall alsocontain an unequivocal undertaking that he would not in anyway disturb possession of the appellant in the said flat. Theaffidavit shall also disclose that the respondent no. 8 has notcreated any form of encumbrance over the said flat. Suchaffidavit shall be given within a period of one month from theH

AISHWARYA ATUL PUSALKAR v. MAHARASHTRA HOUSING &AREA DEVELOPMENT AUTHORITY [ANIRUDDHA BOSE, J.]

date the appellant communicates in writing her willingness tobe accommodated in flat no. 101.

(d) If there is no bar in allocating the said flat to the appellant onthe basis of re-development plan or any other instrumentsupplemental or ancillary thereto, and the appellant acceptsthe offer of being accommodated in the said flat bearing no.101,then the appellant shall vacate her present accommodationand settle in that flat bearing no.101 in Om Apartment withina further period of four months. This would be subject to therespondent no.8 giving undertaking in the form of affidavit asdirected in the preceding sub-paragraph.

14. In the event, however, the appellant wants to establish herright to reside in her matrimonial home with her husband, she shall be atliberty to approach the Family Court or any other forum of competentjurisdiction, as she may be advised. But in such a situation, she wouldnot be entitled to claim any right specifically in respect of Flat No.101 atOm Apartment on the basis of directions issued by us in the precedingparagraph including the four sub-paragraphs thereof.

15. The appellant shall vacate her existing accommodation forwhich expenses appears to have been and continues to be incurred bythe Respondent No. 8. The fact of incurring such expense has beenpleaded in the additional affidavit filed on behalf of Respondent No. 8,verified on 29[th] August 2019. We give appellant eight months’ time tovacate her present residence at A/20, Bal Govinddas Society, ManoramaNagarkar Marg, Mahim Mumbai. In the event she chooses to opt forFlat No. 101 in “Om Apartment” as her residence, and the other conditionsspecified in paragraph 13 and its various sub-paragraphs are satisfied,then she shall vacate her present premises from the date she takespossession of the flat at “Om Apartment”. Respondent No.8 shall giveher possession of the said premises on a date mutually convenient to theappellant and the Respondent No.8 within the aforesaid period of eightmonths.

16. Otherwise, the course to be taken by her shall be guided bythe direction that may be given by a Court of competent jurisdiction,which the appellant may approach. Till the time the appellant retainspossession of the present residential accommodation, which period shallnot exceed eight months, the respondent no.8 shall continue to pay rent A

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Athereof and her possession thereof shall not be disturbed. The obligationof the respondent no.8 to pay rent and ensure peaceful possession of thepresent residential unit of the appellant shall not exceed the eight monthsperiod, as stipulated by us. Unless of course, a Court of competentjurisdiction issues any other direction at the instance of the appellant.

B17. With these directions, the appeal shall stand disposed of. Allconnected applications are disposed of. Interim orders, if any, shall standdissolved. There shall be no order as to costs.

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Divya Pandey

Appeal disposed of.

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