Regarding my query under subject"observation"
Sadanand B. Panchal
(Querist) 24 September 2012
This query is : Resolved
To,
His Honour Advocate Shri R.K.Nanda
and other Hon'ble Advocates of Lawyersclubindia.com.
Respected Experts,
Kindly receive the information of my case attached herewith which includes my query.
Please give me your valuable advise.
Thanks for your prosperous help in advance.
Regards,
Sadanand Bhisaji Panchal
His Honour Advocate Shri R. K. Nanda
I, Sadanand Bhisaji Mestry @ Panchal is residing at 60/A, Karle Chawl, situated at Dunhill Compound, C.T.S. no. C – 1635, Survey no. 316 Hissa no.2 of village Bandra, Dr. Ambedkar Road, Khar (W), Mumbai – 400 052 most respectfully state and submit the events and status of my case as follows:
1. Above referred land was originally occupied by one Aloysius Rodrigous by Deed of Transfer of the year 1943. The said occupant is shown in the P.R. Card Entry as “Old occupant”. 7/12 Extract of the year 2012 shows the name of Late Shri Aloysius Rodrigous and as per the said Extract the land under reference is termed as “cultivable area XX Acres”, therefore the land is bearing an Agricultural tenure. There were two Chawls in existence since the year 1933, one was owned by Late Shri Aloysius Rodrigous (Mestry Chawl) and another is “Karle Chawl”. Mestry Chawl was situated at the entrance of the plot whereas Karle Chawl is situated at the rare north corner of the plot. I am residing in one of the room out of 10 rooms of Karle Chawl and my father were residing in the said room since the year 1946 under a capacity of tenant of Late Shri Shantaram L. Karle who constructed the Chawl in the year 1933. There is Court’s record and record of the City Survey which shows that the elder brother of Late Shri Aloysius Rodrigous, Late Shri Leo Rodrigous in the year 1928 had given above referred Land on Lease to Late Shri Shantaram L. Karle. Therefore the Entry in the P.R. Card Showing the “Old occupant” as Aloysius Rodrigous is quite doubtful. There is also entry of the said Shantaram as “Imla Malak and in bracket “(O.R.)”
The said Shntaram L. Karle had refused to issue the rent receipts and also refused to collect Rent from his tenants including my father in the year 1976. He had settled with one Dunhill CHS in the year 1974 and thereafter in the year 1976 refused to accept even rent paid by my father under Postal Service. I have a proof. Thereafter no Rent was demanded by him or his legal heirs till today. But now this is not the issue here. In my view my Late father and now I am tenant/Co-owner/occupant of both the land below the room, W.C. structure, Bathroom situated outside the Chawl with appurtenances thereof, right of egress and ingress towards our respective rooms from the Road and superstructure of my room.
2. The right of Late Shantaram Karle over above referred land and its description:
i. Lease was granted in his name by Leo Rodrigues in the year 1933 excluding Mestry Chawl.
ii. He was one of the members of his Hindu joint family and had one younger brother Appa.
iii. He was Karta. On Tillers day i.e. on 1-04-1957 as per Section 32 of the Bombay Tenancy & Agricultural Lands Act, 1948 he deemed to had been purchased the Land referred above. The right of Late Aloysius Rodrigous or Leo Rodrigous over the land ceased to be exist.
iv. The land below Karle Chawl was assessed as N.A. in his name in the year 1955.(Record available)
v. Karle Chawl was assessed by B. M. C. in on 1-04-1961( Record available)
vi. He is an agriculturist and cultivated land till the year 1973
vii. Lease was granted in his name by Leo Rodrigues in the year 1933 excluding Mestry Chawl.
viii. In the year 1943 the locality of the Area was already declared as Redevelopment Zone as per M.R. & T. P. Act, 1966 under the Scheme (III).
3. Now the litigation started as follows:
i. One developer attracted to the above referred land in the year 1972 for business and as per Entry of the name of Aloysius Rodrigous in 7/12 Extract approached to said Aloysius Rodrigous. In collusion with Aloysius Rodrigous developer registered a Dunhill Co-operative Housing Society with 27 fake members and 7 members of his family. Fake Chairman, Secretary and one member executed an Indenture dated 28-02-1973 with the said Aloysius Rodrigous. Aloysius Rodrigous was vendor, developer was Confirming Party and the Schedule-I of the property reads as : all that peace and parcel of land hereditaments and premises together with several structures standing thereon save and excepting those belonging to said Shantaram Laxman Karle bearing C.T.S. no. C – 1635, Survey no. 316 Hissa no.2 of village Bandra admeasuring 2065.24 Sq.meters.
ii. Entry of the Indenture/ Conveyance Deed was recorded in the P.R.Card on 11-07-1975.
iii. After obtaining conveyance Deed the Dunhill CHS (hereinafter referred to as the Society) filed eviction (R.A.E.) Suit 3701 against occupants of Karle Chawl including Shantaram before Hon’ble Small Causes Court at Mumbai which was came to be dismissed in 1981.
iv. After obtaining Conveyance Deed the said Society filed L.C. Suit 3071 and taken out N/M before Hon’ble City Civil Court against tenants of Mestry Chawl owned by Aloysius Rodrigous and against Late Shri Shantaram Karle for obtaining injunction restraining Defendants from obstructing the contractor (appointed by the said Society) from construction of a new building in the Land between two Chawls. -----The N/M was dismissed by the Hon’ble Court on three grounds- 1) Tenants of Mestry Chawl are tenants of Aloysius Rodrigous therefore Suit was Barred by Section 28 of the Bombay Rent Act., 2) The prayers in the N/M are same as the prayers in the Suit., 3) Shantaram Karle was lessee of Aloysius Rodrigous and therefore land belongs to said Shantaram excluding the front “Mestry Chawl”
v. After dismissal of the N/M, the Suit 3071 filed by the Society was dismissed in the year 1982. No Appeal was preferred by the said Society after dismissal of two Suits. Therefore the said Society was prevented from even entering into the land belonged to Late Shantaram Karle.
vi. Apart from the two Chawls the land was a big Jungle. The Chawl is made up of iron sheets.
vii. The said Society (developer) thereafter negotiated with the tenants of Mestry Chawl and gave promise that he will allot a flat to the tenants of the Chawl. 6 tenants of Mestry Chawl were gave vacant possession after obtaining money, gone away whereas 4 tenants were remained to obtain Flat and money.
viii. The said Society and the developer settled with Late Shantaram Karle to surrender his right and interest upon land surrounding the Karle Chawl. In the year 1974 the said Shantaram signed an unregistered Agreement with the said Society to surrender his right over land excluding Chawl for Rs.50, 000/- and one Flat in proposed building.
ix. The construction of the building for the Society was started in the year 1975 by utilizing F.S.I. and T.D.R. of the Chawl. Construction completed in the year 1977 and all the 4 tenants of Mestry Chawl had taken possession of the Flat and also Late Shantaram Karle taken possession of the Flat without redevelopment his own Chawl.
x. In the year 1977 the younger brother of Late Shantaram Karle filed a Suit against him before Hon’ble City Civil Court for not parting possession of the flat which was obtained from exchange of land belonged to joint family. Shantaram Karle given undertaking for not parting possession and the matter is pending before Hon’ble High Court till today.
xi. Thus the said Society constructed building, developer sold flats to new members other than that shown in the conveyance Deed of 1973 and used to reside in the building till the year 2005. The developer gone away. Mestry Chawl was demolished accordingly.
xii. In the year 2006 the said Society appointed a developer to reconstruct the Dunhill building of the said Society, developer had shown the building as dilapidated condition and made application for reconstruction of the Dunhill building after demolishing the same—Developer approved Plan and obtained I.O.D. -- without complying conditions of I.O.D., specifically without making the agreements with other tenants in the land i.e. tenants/occupants of the Chawl, demolished the building without C.C.--Amended Plan to carve out entire land except Karle Chawl in the year 2009-felled 22 trees and without planting a single tree-- Obtained Commencement Certificate (C.C.)--Started excavating land excluding land beneath Karle Chawl below to the rock--firstly right of way minimized to 8 meters and then constructed 16 floors with high handed action--when floors completed obstructed the right of way- -brother of landlord filed Civil Application in the pending First Appeal, the Hon’ble High Court accepted the undertaking of the developer to temporarily block right of way for construction of underground water Tank and drive way for the Society. It was accepted by the Court without adding other occupants of the Chawl as party and temporary access through building under construction was given. Therefore I filed a right of way Suit bearing no.1600 of 2011 before the Hon’ble City Civil Court at Dindoshi, Mumbai and also taken out N/M--at the stage of ad-interim, my ad-interim reliefs were refused because of the acceptance of the undertaking of the Developer by the Hon’ble High Court—Developer on same day excavated remaining right way, earth--My N/M is still pending before Hon’ble Court for hearing--I have served Writ of Summons.--Now the developer have constructed a 6 meters wide Ramp ( Concrete slab) for upper ground floor of the Society vehicles and Karle Chawl occupants.
xiii. Developer completed construction of 16 storied floors with utilizing T.D.R. of the Karle Chawl without consent of the occupants including me.
4. Following points in my view how the said Society was not entitled to construct a building or reconstruct the building in lieu of the old new building:-
i. The said Society was not became the owner of the land.
ii. The Conveyance Deed dated 1973 obtained by the said Society excluded property, land and premises belonged to Late Shantaram Karle from the contract.
iii. As per Section 52 of Indian Easements Act, the above referred land was not transferred in the name of the said Society. Which part of the land was transferred to the said Society was also not defined?
iv. Society purchased the above referred land without having Non-Agricultural user. Therefore transfer was invalid as per B. T. & A. L. Act, 1948 and L. R. Code Maharashtra. No NOC from Collector obtained to obtain N.A.
v. Aloysius Rodrigues had no title to the above referred land.
vi. None of the member was residing in the above referred land at the time of Registration of the said Society, Execution of the Indenture, after the execution of the Indenture. All the members were fake members. Even the present members are deferent. No share Certificates of any member found in the file “A” of the said Society kept with the Dy. Registrar of the Society at the time of inspection under RTI last month.
5. Building permit granted by the Planning Authority is illegal as per following:-
i. Karle Chawl and Dunhill building are independent structures, without Sub-division of the land, the Executive Engineer ( B. & P.) accorded building permit.
ii. Dunhill Society is not owner of the above referred land.
iii. Old Dunhill building was unauthorized one and was liable to be demolished as per Section 351 of the M.M.C. Act.
iv. Entire land excluding Karle Chawl was excavated and earth was removed below to the rock to construct Lower and Upper basement. This was done without obtaining mining License from the Collector/Govt. under the Indian Mines & Minerals (Regulation & Development) Act, 1957.
v. 22 trees felled and without planting single tree. There is no soil remained to grow tree. Surrounding open spaces of the new buildings were of Ramp below which basement and parking constructed. The Section 8(5), 21 of the Maharashtra (Urban Areas) Protection & Preservation of the trees Act,1975 violated therefore the Senior Inspector of Police have lodged F.I.R. against the Developer on Complaint by Assistant Municipal Commissioner.
vi. Electric cable of the Chawl was disconnected while excavation, now the Reliance Energy provided temporary cable overhead. No earth available to wave the cable through earth.
vii. Water connections of the Chawl were disturbed and diverted.
viii. Drainage & Sewerage line of the Chawl were disconnected and diverted through adjacent compound wall.
ix. T.D.R. of the Karle Chawl is utilised on the newly constructed building without consent of the occupants of the Karle Chawl occupants.
x. Reserved 15 % Recreation ground area (R.G.) is excavated and developed with basement, underground parking and swimming pool on top without consent of the occupants of the Karle Chawl.
xi. No right of way for Karle Chawl retained of the earth.
xii. No independent right of access given to the Karle Chawl.
xiii. The sequence of Civil Suits regarding the above referred land were continuously pending since the year 1973 to till today therefore as per T.P. Act Mutation Entry in the Property Card was invalid.
xiv. In future, we will not have any chance to obtain a room in a building as provided at least provided to the slum dwellers of 1-04-1995 under S.R.A. though we are the residents of Mumbai since 1942. My case is a rare case.
This is my case and I have filed a right of way suit before the Hon’ble City Civil Court at Dindoshi, Mumbai bearing no.1600 of 2011 against (1) Dunhill CHS (2) Developer (3) Mumbai Municipal Corporation. The said Suit, its N/M is pending. I have also filed a complaint with all the Departments of Mumbai Municipal Corporation and thereafter filled form for “Lokshahi Din” as per G.R. of the Govt. before the Hon’ble Municipal Commissioner, Mumbai C.S.T. On 3-09-2012 I attended the “Lokshahi Din”, argued the matter and requested the Hon’ble Municipal Commissioner to take action against the said Society under Sections 52-57 of the M.R. & T. P. Act, 1966 for demolition of the an unauthorised building development. Now the developer has applied for Occupation Certificate for the newly constructed building. Our truckloads of complaints were thrown into the dust bin by the Municipal Authorities without taking action against the developer every time. If my “Lokshahi Din” application rejected by the Municipal Commissioner, I would have to move before Hon’ble Court. I don’t know which proceedings I have to file, which Court, either Writ Petition or Suit before Original Jurisdiction I don’t understand. Please advise me.
I have also decided to register a Lis Pendens before the Registrar of Assurances for my pending right of way suit before Civil Court under Section 52 of the Transfer of Property Act to stop the developer from transferring the developer the property to the proposed newly formed Society. Kindly Explain me whether I can register a Lis Pendens for pending right of way Suit?
Regards,
Sadanand Bhisaji Mestry @ Panchal
(Mobile no. 9867256458)
If any other information is requiring, I will provide.
Sadanand B. Panchal
(Querist) 25 September 2012
I most respectfully submit my case to His Honour Advocate Shri R.K. Nanda and proudly awaiting for valuable advice. I will send my reply to the thanks and also thanks in advance for the prosperous Help.
Regards,
Sadanand B. Panchal
mahendrakumar
(Expert) 27 September 2012
I feel,it is better to seek local advise for such lengthy queries.
V R SHROFF
(Expert) 27 September 2012
PERSONAALY DISCUSS WITH THEM
Guest
(Expert) 27 September 2012
Dear Sadanand,
Not as any objection, but frankly speaking, such type of cases usually take a lot of time even during personal discussions that further leads to several supplementary questions for finding appropriate solution. So, it would be better, if you take a personal appointment of Shri Nanda ji, or if not possible due to your not being situated at his place, you may consult some local lawyer on the issue.
However, if Shri R.K. Nanda can afford to spare his valuable time to provide you solution on the case related problem, that would definitely be his generosity.
