Order 1

Order Details: Ex-parte Judgement
Pdf Text: Judgment
S.C. SUIT NO.1253-2018 1 Date : 19.12.2025
MHCC010060172018 Presented on : 03.05.2018
Registered on : 04.05.2018
Decided on : 19.12.2025
Duration : 07 07 16
Years Months Days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. 1253 OF 2018
Exhibit No.29
1) Mrs. Vendita D’souza
Age : 48 years.
Having residence address of,
Veronica, 208, Building No.4,
Vasant Oasis, Makwana Road,
Marol, Andheri (E), Mumbai 400059
]
]
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]
]
]
2) Mr. Lenard Rasquinha
Age : 47 years.
Having resident address of,
C/403, Abhimanyu NL Complex,
Dahisar (E), Mumbai 400068
]
]
]
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] ...Plaintiffs
VERSUS
The Maharashtra Housing and Area
Development Authority
Having its office Grihanirman Bhavan,
Bandra East Mumbai 400051.
]
]
]
] ...Defendant
CORAM : HIS HONOUR JUDGE
SUBHASH K. KARHALE
C.R.NO..
: 08.
DATE : 19.12.2025.
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1) Ld. Adv. S.A.H. Zaidi for plaintiffs.
2) Ld. Adv. K.N. Kandekar for defendant/MHADA.
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Judgment
S.C. SUIT NO.1253-2018 2 Date : 19.12.2025
JUDGMENT
(Dictated and pronounced in open court)
1. The plaintiffs have filed this suit for declaration, permanent
injunction and for directory/mandatory injunction to regularize the
allotment of the suit premises in their favour.
Brief facts of Plaintiff’s case are as under :-
2. The plaintiffs are the legal heirs of late Mr. Leo Rasquinha.
Late Mr. Leo Rasquinha was the proprietor of M/s. Rasquinha Electrical
and Mechanical Works. He was carrying the said business from old
shop Nos.58 and 75 situated in Rahim Ramji Building Municipal House
No.363-365, at 122/124, Rey Road, Dilima Street, Dockyard Road,
Mumbai (“old shops” for short). However, the said building had become
dilapidated and hence, defendant/MHADA had decided to reconstruct
it. Late Leo Rasquinha was tenant in the old shops. Defendant/MHADA
issued notice dtd.10.02.1970 to Leo Rasquinha for vacating the old
shops. Hence, Leo Rasquinha had filed Suit No.6876/1971 in City Civil
Court at Mumbai. However, the said suit was settled between both
parties as per the Consent Terms and disposed off as withdrawn on
15.02.1972. As per the said consent terms, Leo Rasquinha has got Shop
No.2 & 3 in the newly constructed building “ Kokan Manjil”. As per
letter dated 18/12/1979 issued by the defendant/MHADA, Mr. Leo
Rasquinha had vacated Shop No.3 and shifted in Shop No.1.
Accordingly, he had continued his business in the new Shop Nos.1 & 2
i.e. the suit premises in the newly constructed building i.e. ‘Kokan
Manjil’, Dockyard Road, Mumbai-400 010. The said new Shop Nos.1 &
2 are described in detail in the plait are hereinafter referred as the ‘suit
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Judgment
S.C. SUIT NO.1253-2018 3 Date : 19.12.2025
premises’ for short. The plaintiffs being legal heirs of Mr. Leo
Rasquinha, were doing business with him in the suit premises.
However, Mr. Leo Rasquinha died on 25.03.1986, leaving behind
plaintiffs as his only legal heirs. Hence, the plaintiffs have continued the
said business in the suit premises.
3. Thereafter, defendant had started eviction proceeding against
plaintiffs vide order dtd.22.06.2005, 23.09.2005, but those were
dropped. Defendant had also issued show cause notice under Sec.95(A)
(3) of the Maharashtra Housing and Area Development Authority
(MHADA) Act dtd.01.08.2011, but did not initiate further action on that
basis. The plaintiffs are protected in the suit premises as per the
Resolution No.5962 dtd.06.10.2003 (“Resolution” for short) issued by
defendant itself. However, then also defendant’s officials have again
issued impugned notice bearing No.EE/E1/RR/736 dtd.28.02.2018 and
notice No. EE/E1/RR/737 dtd.28.02.2018 (impugned notices) against
plaintiffs and thereby directed to vacate the suit premises. Hence,
plaintiffs have filed this suit to declare impugned notices as illegal, and
liable to be quashed and set aside. They sought permanent injunction
restraining defendant from dispossessing them from the suit premises
and causing obstruction to their possession in the suit premises.
Alternatively, they sought directory/mandatory injunction against
defendant to regularize the suit premises in their names vide Resolution
dtd.06.10.2003.
4. The defendant/MHADA appeared, but failed to file its Written
Statement (WS). Hence, the suit is proceeded without its WS vide order
dtd.24.01.2020.
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Judgment
S.C. SUIT NO.1253-2018 4 Date : 19.12.2025
5. To prove the case on behalf of plaintiffs, plaintiff No.1 Mrs.
Vendita D’souza is examined as PW-1 at Exh.6 and proved documents
Exh.10 to 21 and Exh.26 in support of her case. Ld. Advocate for
defendant has taken her cross-examination, but failed to file WS and to
lead evidence. Hence, matter was posted for final argument.
6. Heard final arguments of Ld. Advocate Mr. S.A.H. Zaidi for
plaintiffs and Ld. Advocate K.N. Kandekar for defendant at length.
Perused written notes (Exh.28) submitted by Ld. Advocate for plaintiffs.
7. Ld. Advocate Mr. S.A.H. Zaidi, on behalf of plaintiffs submits that
the impugned notices does not bear names of the plaintiffs, but on that
basis, defendant is trying to dispossess the plaintiffs from the suit
premises. Admittedly, defendant has dropped the earlier eviction
proceedings. Ld. Advocate Mr. Zaidi has relied on number of documents
filed on record such as Consent Terms, Orders of the Competent
Authority whereby the eviction proceedings are dropped and other
correspondence etc. He submits that the plaintiffs are in settled
possession of the suit premises since prior to 1982, till the date and
hence, the defendant ought to have regularize their possession by
accepting necessary charges. Even before plaintiffs also, late Leo
Rasquinha was in legal possession and occupation of the suit premises
and prior to that in old shops.
8. Ld. Adv. Mr. S.A.H. Zaidi further submits that the bar under
Sec.177 of the MHADA Act is not absolute. This Civil Court has power
to try and entertain the suit for the reliefs of declarations, perpetual and
mandatory injunctions. He further submits that the defendant has given
impugned notice to vacate the suit premises within seven days and
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Judgment
S.C. SUIT NO.1253-2018 5 Date : 19.12.2025
hence, it was not possible to give notice to the defendant under Sec.173
of the MHADA Act. He also relied on his written notes of argument
(Exh.28). He in support of his submissions has relied on following
citations :-
(i) K.K. Verma Vs. Union of India, AIR 1954 Bom 358, wherein it is
held that, an erstwhile tenant in Government premises, even after
eviction notice, is not automatically and “unauthorized occupant” under
eviction laws. It require the landlord to file a regular suit for possession,
not just rely on summary eviction powers.
(ii) State of Maharashtra Vs. Dinesh Chandrababu (no citation as
such is found in the record nor its hard copy is filed on record)
.
9. Ld. Advocate Mr. K.N. Kandekar, on behalf of defendant has
further argued that once the notice under Sec.95A of the MHADA Act is
issued, the suit is not maintainable. The plaintiffs have not given notice
under Sec.173 of MHADA Act to defendant, prior to filing of the suit
and hence, the suit is not maintainable. He further submits that
plaintiffs have not paid the rent of suit premises. Hence, he prayed for
dismissal of the suit.
10. The evidence of plaintiff No.1 Mrs. Vendita D’souza (Exh.6)
shows that the plaintiffs are legal heirs of Leo Rasquinha. Late Leo
Rasquinha was carrying business in the old shop Nos.58 and 75 under
the name and style as “M/s. Rasquinha Electrical & Mechanical Works”.
However, the building wherein those old shops were situated had
become dilapidated and hence, defendant had decided to reconstruct it.
Hence, officers of defendant had issued notice (Exh.10) to him on
10.02.1970 for vacating the suit premises. Late Leo Rasquinha
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Judgment
S.C. SUIT NO.1253-2018 6 Date : 19.12.2025
challenged the said notice by filing Suit No.6876/1971 in the City Civil
Court, Mumbai against defendant. Thereafter, defendant had negotiated
the matter and issued written direction (Exh.23) dtd.31.01.1972 to the
Government Pleader to compromise the suit. Accordingly, the said suit
was disposed of as withdrawn as per the Consent Terms
dtd.15.02.1972.
11. The further evidence of plaintiff No.1 Mrs. Vendita D’souza
(Exh.6) shows that as per the Consent Terms dtd.15.02.1972, Leo
Rasquinha vacated the old shops and those were demolished. In lieu of
old shops, defendant has allotted shop Nos.2 and 3 in newly
constructed “Kokan Manjil Building” to Leo Rasquinha. As per the letter
(Exh.11) dtd.18.12.1979 issued by defendant Leo Rasquinha has
vacated shop No.3 and shifted in shop No.1. Accordingly, Leo Rasquinha
continued his possession and business in the suit premises i.e. shop
Nos.1 and 2. Leo Rasquinha had made grievance about receiving less
area of shop Nos.1 and 2 in comparison to his old shops. The defendant
had replied the said grievance vide reply (Exh.12) dtd.15.01.1982 and
23.03.1982.
12. The further evidence of plaintiff No.1 Mrs. Vendita D’souza
(Exh.6) shows that Mr. Leo Rasquinha died on 25.03.1986 leaving
behind she and plaintiff No.2 as only his legal heirs. She has proved his
death certificate (Exh.26). Thereafter, on 10.10.1996, the Competent
Authority-III of defendant issued show cause notice (Exh.14) to
plaintiffs on 21.09.1990 for vacating the suit premises. Thereafter, again
in the year 2004, defendant has issued another notice (Exh.15) to
plaintiffs by saying that they are in unauthorized occupation of the suit
premises and to pay the regularization charges. Pursuant to said notice
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Judgment
S.C. SUIT NO.1253-2018 7 Date : 19.12.2025
(Exh.15) hearing was conducted before Competent Authority. However,
after hearing the plaintiffs, the Competent Authority dropped the said
proceedings vide orders (Exh.16) dtd.22.06.2005 and 23.09.2005.
13. The further evidence of plaintiff No.1 Mrs. Vendita D’souza
(Exh.6) shows that as per Resolution No.5962 dtd.06.10.2003 (Exh.18)
passed by defendant, it was decided to regularize the illegal occupants in
the building of defendant by charging Rs.500/- per sq. ft. for residential
premises and Rs.1000/- per sq. ft. for commercial premises. The
plaintiffs are not in unauthorized possession of the suit premises. The
defendant once again vide show cause notice/letter (Exh.20) dtd.
01.08.2018 threatened the plaintiffs as to why they should not be
dispossessed from the suit premises, but pursuant to the said notice,
defendant did not initiate any action. Thereafter, defendant again issued
impugned notices (Exh.21) dtd.28.02.2018 and thereby directed the
plaintiffs to vacate the suit premises within seven days. The plaintiffs are
in possession of the suit premises since the year 1982 and they can be
protected as per the resolution dtd.06.10.2003 passed by the defendant.
14. Plaintiff No.1 Mrs. Vendita D’souza (Exh.6) during her cross-
examination states that, she represents both the plaintiffs in the suit.
She had read her affidavit of evidence, but unable to recollect each and
every word thereof. She has not filed any consent of her mother while
filing this suit. Her mother is aware of this suit. Her father is died
intestate. She has not obtained any succession certificate. She has not
obtained any letter of administration from the Court. She is going to
apply succession certificate from Hon’ble High Court. Letter (Exh.23)
dtd.31.01.1972 was referred to her during her cross-examination. The
said letter was written by Chief Executive Officer of Bombay Building
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Judgment
S.C. SUIT NO.1253-2018 8 Date : 19.12.2025
Repairs to the Government Pleader, City Civil Court, Mumbai. The
subject of said letter was old shop No.58 and 75. MHADA had certified
allotment of two shops to her father. MHADA had not regularized their
possession in the second shop. Her application was not turned down by
the defendant.
15. Thus, even though the defendant/MHADA has not yet regularized
the possession of plaintiffs in the second shop of the suit premises, but
the fact remains that the plaintiffs are in settled possession of the suit
premises since about the year 1982 till the date. Admittedly, the
Competent Authority of MHADA has dropped the eviction proceeding
started against the plaintiffs in respect of the suit premises by its orders
dtd.22.06.2005 and 23.06.2005. The Consent Terms dtd.15.02.1972 in
the former Suit No. 6876/1971 filed by original tenant Leo Rasquinha,
the allotment letters of defendant/MHADA dtd.18.12.1979 and
22.03.1982 shows the settled possession Leo Rasquinha and from about
the year 1982, the possession of plaintiffs in the suit premises.
16. The above discussed oral and documentary evidence on behalf of
plaintiffs on record has sufficiently proved that defendant has
recognized Leo Rasquinha as its legal tenant. Thereafter, the plaintiffs
are in settled possession of the suit premises since about the year 1982,
continuously and carrying business peacefully. The defendant and its
officials are knowing all these facts very well as they had initiated
eviction proceedings against the plaintiffs and those were dropped as
referred above. However, still the defendant has issued the impugned
notices (Exh.20 & 21), without mentioning the names of plaintiffs. The
names of addressee are mentioned as “T.P.” and hence, on that basis the
defendant and its officials are trying to dispossess the plaintiffs from the
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Judgment
S.C. SUIT NO.1253-2018 9 Date : 19.12.2025
suit premises. The defendant is a statutory body and it could have
issued the notices clearly on the names of plaintiffs, if they really want
to dispossess the plaintiffs by following due process of law. The
defendant had not filed W.S. and failed to explain all the material facts.
They failed to explain at to why they send defective notices. Hence, the
impugned notices being not addressed to the plaintiffs, but the
reference of the suit premises is made therein and the defendant is
trying to dispossess them from the suit premises which is not just legal
and proper. Consequently, the impugned notices are liable to be
declared as illegal and set aside.
17. Ld. Advocate K. N. Kandekar the submitted that the plaintiffs are
not paying the rent but no legal process had been started by the
defendant for recovery of rent. Ld. Advocate Zaidi for plaintiffs submits
that the plaintiffs are ready to deposit the legal charges for regularization
of plaintiffs in the suit premises but the officials of defendant are not
ready to accept the charges. So, the defendant can regularize the
plaintiffs’ possession in the suit premises or its allotment according to law
by accepting necessary charges or rent etc. from the plaintiffs.
18. So far as, jurisdiction to this Court is concerned, Ld. Advocate Mr.
K.N. Kandekar for defendant has pointed out that as per Sec.177 of the
MHADA Act, this Court has no jurisdiction. However, the bar under
Sec.177 of the MHADA Act is not absolute. The plaintiffs have filed this
suit for declaration and injunctions under Sec.34, 38 & 39 of the
Specific Relief Act, 1963. As observed earlier, the impugned notices are
illegal and hence, to declare such kind of notices as illegal and to set
aside it, the bar under the aforesaid provision would not apply.
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Judgment
S.C. SUIT NO.1253-2018 10 Date : 19.12.2025
19. Thus, for the aforesaid reasons, the impugned notices are illegal
and liable to be set aside. The defendant if require may start the
eviction or regularization process afresh. The defendant has failed to
bring on record the real difficulties for regularizations of the suit
premises on the names of plaintiffs. The plaintiffs have proved that
they are carrying business in the suit premises since 1982 and are in
settled possession. However, as this Court has no power to regularize
the allotment of the suit premises on the name of plaintiffs, the relief to
that effect can not be considered. Accordingly, the suit of the plaintiffs is
liable to be partly decreed with proportionate costs. In the result, I pass
following order :-
ORDER
1) The Suit is partly decreed with proportionate costs as follows :-
(i) The impugned notices bearing No.EE/E1/RR/736 and
EE/E1/RR/737 dtd.28.02.2018 are hereby declared
as illegal and those are set aside.
(ii) Defendant is hereby restrained by way of order of
injunction from dispossessing the plaintiffs from the
suit premises without following due process of law.
2) Decree be drawn accordingly.
Date : 19.12.2025
Place : Mumbai.
(SUBHASH K. KARHALE),
Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated and typed on : 19/12/2025.
Corrected on : 19th & 23rd/12/2025.
Signed on : 23/12/2025
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Judgment
S.C. SUIT NO.1253-2018 11 Date : 19.12.2025
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED ORDER.”
23/12/2025 at about 01.00 noon
(Shravanti Karre)
Stenographer (Grade-I)
Court Room No.08, Gr. Mumbai
Name of the Judge
(With Court Room No.)
(SHRI SUBHASH K. KARHALE)
Judge, City Civil Court,
Court Room No.08, Gr. Mumbai
Date of Pronouncement of JUDGMENT 19/12/2025
JUDGMENT signed by P. O. on 23/12/2025
JUDGMENT originally typed by on
Shravanti Karre,
Stenographer, Grade-I
19/12/2025
JUDGMENT uploaded by on
Vidya Abhijit Mande,
Stenographer, Grade-I
23/12/2025 at about 01.00 noon
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