Maharashtra Housing and Area Development Act, 1976 – ss.2(25), 79, 95A and 177 – Family property of respondent no.8C husband was redeveloped – During redevelopment, occupants thereof shifted to temporary accommodation as required, appellant-wife did not – She shifted on the order of High Court passed in matrimonial proceeding pending between the parties – In parallel developments pertaining thereto, the decree of judicial D separation granted to respondent no.8 was set aside – Plea for divorce, dismissed – Appellant filed writ petition inter alia for directions to MHADA to rehouse her in the two flats allocated to respondent no.8 and his family in the redeveloped building, which as per her is her matrimonial home – Dismissed – Held: When a builder has discharged his obligation by accommodating the E original owners in the redeveloped portion as per such a scheme, a lady married into that family is not entitled to invoke the writ jurisdiction of High Court to enforce her right to matrimonial home on the basis of said statute, if her husband does not permit her to reside in the allocated portion – Though appellant was dishoused as an occupier applying the provisions of 1976 Act, claim of her rehousing is based on her status as respondent no.8’s wife – As of now, the decree of judicial separation stands invalidated and she is the legally wedded wife of respondent no.8 – However, the original building that constituted her matrimonial home has been demolished and large portions of the redeveloped building on G the same plot has been parted with – Traditionally, her matrimonial home at present would be the premises in which her husband i s residing – Judicial forum having fact- finding jurisdiction would be the proper forum for adjudicating claim of this nature – Further, respondent no.8 and the builder uniformly stated that a flat in the same building is available to H accommodate the appellant – Dispute pending for very long, directions issued u/Art.142 – Protection of Women from Domestic Violence 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 decree of judicial separation stands invalidated and as of now, the appellant is the legally wedded wife of the respondent no.8. She has been out of her matrimonial home since the year 2000. But such right cannot be enforced invoking the writ jurisdiction. Moreover, the original building that constituted her matrimonial home has been demolished. Large portions of the redeveloped building on the same plot has been parted with. Now going by its traditional meaning, her matrimonial home at present would be the premises in which her husband is residing. In this complex perspective, a judicial forum having fact-finding jurisdiction would be the proper forum for adjudicating her claim of this nature. The appellant drew attention to Section 177 of the Maharashtra Housing and Area Development Act, 1976 to contend that disputes arising out of the said Act cannot be adjudicated upon by a Civil Court. But, the dispute raised by her does not arise out of any of the provisions of the 1976 Act. Though she was dishoused as an occupier applying the provisions of the 1976 Act, claim of her rehousing is based on her status as wife of the respondent no. 8. Such claim has to be adjudicated upon by the Civil Court or the Family Court or any other forum the law may prescribe. Such right of the appellant cannot be diffused with the right of her husband under the 1976 Act, whose family property, part of which he is the owner, has been reconstructed. [Para 11][353-C-F]
1.2 The Bombay High Court has in substance non-suited her on the ground that the Writ Court was not the appropriate forum for granting her relief. The Court does not per se find any error in such approach. But, in course of this appeal, the husband (respondent no. 8) has filed an affidavit stating that he has set apart the Flat No. 101 in which the appellant could be accommodated. The appellant on the other hand has asserted that the allocation of the same flat was earmarked for one Mr. Nayak Satam, a tenant, as per the plan. Considering the fact that the dispute is pending for a very long time, certain directions given in exercise of jurisdiction under Article 142 of the Constitution of India which will conclude the dispute. This is having regard to the fact that the builder and the husband of the appellant have uniformly stated that Flat No. 101 in Om Apartment is available to accommodate the appellant. The appellant should be given the choice of occupying that flat as her residence. For this purpose, however, certain cautionary measures are also necessary to ensure that the said flat is not otherwise parted 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 establish her right to reside in her matrimonial home with her husband, she shall be at liberty to approach the Family Court or any other forum of competent jurisdiction, as she may be advised. But in such a situation, she would not be entitled to claim any right specifically in respect of Flat No.101 at Om Apartment on the basis of directions issued in the preceding paragraph including the four sub-paragraphs thereof. The appellant shall vacate her existing accommodation for which expenses appears to have been and continues to be incurred by the Respondent No. 8. The fact of incurring such expense has been pleaded in the additional affidavit filed on behalf of Respondent No. 8, verified on 29 th August 2019. Appellant given eight months’ time to vacate her present residence. In the event she chooses to opt for Flat No.
101 in “Om Apartment” as her residence, and the other conditions specified in paragraph 13 and its various subparagraphs are satisfied, then she shall vacate her present premises from the date she takes possession of the flat at “Om Apartment”. Respondent No.8 shall give her possession of the said premises on a date mutually convenient to the appellant and the 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, which the appellant may approach. Till the time the appellant retains possession of the present residential accommodation, which period shall not exceed eight months, the respondent no.8 shall continue to pay rent thereof and her possession thereof shall not be disturbed. The obligation of the respondent no.8 to pay rent and ensure peaceful possession of the present residential unit of the appellant shall not exceed the eight months period, as stipulated. Unless of course, a Court of competent jurisdiction issues any other direction at the instance of the appellant. [Paras 14-16][355-C-H; 356-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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