Allowed

Fpa- 35/BOM/2008 of Ashok T. Sadarangani v/s The Competent Authority, Mumbai

ATFP10 Nov 2016FPA- 35/BOM/2008

Case brief

AI extract

What is this about?

The Tribunal dismissed the application for restitution of a forfeited flat by the licensees (Lalwanis) and granted possession to the rightful owners (Sadarangani). The Court held that the license had expired, granting no tenancy right, and the owners are the only eligible party for possession after the underlying forfeiture basis was quashed.

What did the court decide?

Competent Authority directed to return property possession to Ashok Sadarangani and Nitesh Sadarangani; interim rent deposits returned to owners.

Fpa- 35/BOM/2008 of Ashok T. Sadarangani v/s… — Constitutional and Fundamental Rights | ATFP (2016)

¶1

APPELLATE TRIBUNAL

¶2

(Under Section 12 of SAFEMA, 1976 as Amended by Finance Act, 2016)

¶3

Date of Judgment: 10^th November, 2016

¶4

MP-56/BOM/2013 (Misc. Appln.) MP-119/BOM/2016 (Restitution) in FPA- 35/BOM/2008

¶5

Ashok T. Sadarangani … Appellant Versus The Competent Authority, Mumbai … Respondent

¶6

Advocates/Authorized Representatives who appeared

¶7

For Mr. Ashok T. Sadarangani : Ms. Manali Singhal, Advocate, and Mr. Nitesh Sadarangani Shri Santosh Sachin, Advocate Appellant/Respondent no. 4 (in CR. W.P. 4540/2013)/ Sadaranganis) For Smt. Chandra Dilip Lalwani : Shri B.K. Singh, Advocate and Mr. Sandeep Dilip Lalwani/ : Ms. Vandana Singh, Advocate (Petitioners/Applicants/Lalwanis) : Shri Rahul Jain Advocate Ms. Trishala Kulkarni, Advocate For the respondent : Shri R.N. D’ Souza, J.C. Shri Ratnesh Srivastava, I.O. CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI KAUSHAL SRIVASTAVA : MEMBER SHRI ANAND KISHORE : MEMBER JUGDGEMENT JUSTICE MANMOHAN SINGH : CHAIRMAN

¶8

MP-56/BOM/2013 (Misc Appln.)

¶9

At the outset, and by way of brief background to appreciate the context in which the two applications namely MP-56/BOM/2013 and

¶10

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶11

Page 1 of 21

¶12

MP-119/BOM/2016 have been filed by the two sides to the dispute, it is mentioned that the matter concerns handing over possession of disputed property namely Flat No. 103, with Stilt Parking, Oceanic Building, Plot No. 321, Carter Road, Bandra, (W), Mumbai which was earlier forfeited to the Government vide the Competent Authority order dated 19.03.2008. For reasons to be referred hereinafter, the forfeiture order was set aside by the Tribunal vide its order dated 8.6.2015 in FPA-34&35/BOM/2008 and it was directed that the possession of the flat be handed over to its owners namely Ashok Sadarangani & Nitesh Sadarangani.

¶13

1.1 The application MP-56/BOM/2013 (Misc. Application) has been filed by the appellant Ashok Sadarangani under Section 151 of CPC seeking additional directions which are necessary as a consequential relief in view of the reliefs already granted. The appellant has sought directions to the Competent Authority to return to the appellant/(applicant in the subject Application) the benefits accrued thereon by way of rent collected from Sandeep Dilip Lalwani for the forfeited property in question Flat no. 103, with Stilt Parking, Oceanic Building, Plot No. 321, Carter Road, Bandra, (W), Mumbai during the interim period.

¶14

1.2 The Tribunal’s order dated 8.6.2015 was also challenged by the Petitioners Chandra Lalwani and Sandeep Dilip Lalwani by way of amendment to Criminal Writ Petition No. 4540/2013. The Hon’ble Bombay High Court vide its orders dated 21.08.2015 disposed of the above matter vide its orders dated 21.08.2015 and gave certain directions, which are referred to shortly hereinafter.

¶15

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶16

Page 2 of 21

¶17

1.3 Pursuant to the said order dated 21.08.2015 of the Hon’ble Bombay High Court, the opposing sides namely Shri Ashok Sadarangani and his son Nitesh Sadarangani, the owners of the said property and the Lalwanis (Chandra Dilip Lalwani and Sandeep Dilip Lalwani) from whom the possession was taken over by the Competent Authority in pursuance of Tribunal’s order dated 28.11.2013 approached this Tribunal for hearing and fresh decision of the matter regarding handing over possession of the said property.

¶18

1.4 During the course of such proceedings, Application no. MP119/BOM/2016 (Restitution) has been filed by the petitioners/Lalwani’s seeking restitution of the above mentioned property to them on various grounds mentioned therein.

¶19

1.5 As both the applications involve one basic question namely determination of the person(s) to whom the possession of the forfeited property has to be handed over once the forfeiture order forfeiting the said property is set aside, we propose to decide both the applications by this common order. As the related facts are stated in the MP-119/BOM/2016 (Restitution), we first take up the said Application.

¶20

MP-119/BOM/2016 (Restitution)

¶21

The application for restitution, which is allegedly filed, signed and verified by Shri Sandeep Dilip Lalwani and Chandra Dilip Lalwani (however, it appears from the application that is only signed and verified by Chandra Dilip Lalwani). The application is stated to be filed pursuant

¶22

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶23

Page 3 of 21

¶24

to the order of the Bombay High Court dated 21^st August, 2015 in Criminal Writ Petition No.4540/2013.

¶25

The operative part of the order passed by the Bombay High Court order dated 21.08.2015, where certain directions were issued in para 14 thereof, is as under:-

¶26

“(i) The impugned order dated 8/6/2015 passed in Appeal No.FPA-34/130M/2008 and FPA-35/ 130M/2008, so far as it relates to handing over possession of the disputed flat No.103 (the said flat) to respondent No.4 and his son, is quashed and set aside. The matter is remanded to the Tribunal;

¶27

(ii) The Tribunal shall decide afresh the issue of handing over possession of the said flat either to the petitioner, respondent No.4 or any other person after hearing all concerned including respondent No.4's son.

¶28

(iii) While deciding the said appeals, the Tribunal shall not be influenced by the order dated 28/11/2013 passed in petitioners' appeals as said order has rendered inconsequential since the detention order u/s 3(1) of COFEPOSA has been set aside by the Punjab & Haryana High Court;

¶29

(iv) The Tribunal shall endeavour to dispose of the appeals as early as possible and preferably within the period of three months from the receipt of the order;

¶30

(v) During the pendency and disposal of the appeals, the status quo order dated 21/1/2014 regarding suit flat shall be maintained.”

¶31

As directed in the Hon’ble Bombay High Court, we have accordingly heard the submissions on behalf of the various persons concerned in the matter namely Ashok T. Sadarangani and his son Nitesh Sadarangani, the appellants and Smt. Chandra Dilip Lalwani and Mr. Sandeep Dilip Lalwani, the Petitioners. For convenience, Chandra Dilip Lalwani and her son Sandeep Dilip Lalwani would be referred as ‘petitioners/applicant/Lalwani’ in the present order and Ashok Sadarangani and Nitesh Ashok Sadarangani would be referred as ‘respondent No.4’/Appellant/Sadarangani).

¶32

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶33

Page 4 of 21

¶34

As already noted above, the dispute involved in the application(s) is about Flat No.103, Oceanic Building, Carter Road, Bandra (W), Mumbai400050 (said flat for short). The said flat is owned by Ashok Sadarangani and his son Nitish Ashok Sadarangani (who was earlier charged under section 3(1) of SAFEMA, 1976) as owner and co-owner of the suit property in dispute.

¶35

There is no dispute that Sandeep Dilip Lalwani was put in possession of the said flat by virtue of Leave & License Agreement dated 28^th December, 2000 executed by the owners/Licensors Ashok Sadarangani (Respondent no. 4) and his son Mr. Sadarangani with the Licensee Sandeep Dilip Lalwani. The said agreement was for a period of 60 months with option of two further renewals of 11 months each by mutual consent. The said period of time has already expired long ago. It has also been mentioned during the arguments that Chandra Dilip Lalwani is the mother of Sandeep Dilip Lalwani and she is the sister of Ashok Sadarangani.

¶36

In order to understand the present dispute, it is necessary to refer to certain undisputed facts as also noted in the Hon’ble Bombay High Court order dated 21.08.2015 which are as under:-

¶37

(a) A show cause notice dated 28^th May, 2002 u/s 6 (1) of SAFEMA, 1976 was issued, inter alia, to respondent No.4, on the basis of detention order u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (COFEPOSA) issued against Ashok Sadarangani's son Nitesh Ashok Sadrangani. Notice refers several properties of

¶38

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution)

¶39

in FPA-35/BOM/2008

¶40

Page 5 of 21

¶41

respondent No.4. However, we are concerned with said flat No.103. The Competent authority thereafter passed Forfeiture order dated 12.08.2003u/s 7 of SAFEMA.

¶42

(b) The petitioners separately challenged this order before the Appellate Tribunal. Both the appeals were allowed and matter was remanded to the competent authority. The competent authority thereafter by passing fresh order dated 17^th March, 2008 forfeited the properties of respondent No.4 including the said flat.

¶43

(c) The petitioners as well as respondent No.4 challenged the order dated 17^th March, 2008 by filing separate appeals and the appeal filed by the petitioners [FPA-13/BOM/2008 & FPA14/BOM/2008] came to be dismissed by order dated 28^th November, 2013. The petitioners challenged this order by filing the present petition (Cr. W.P. 4540/2013).

¶44

(d) So far as respondent No.4's appeal before the Tribunal was concerned, the same was dismissed for default. However, subsequently it was restored to the file of the Tribunal. During the pendency of this petition and pendency of the appeal filed by respondent No.4, the detention order against Nitesh Sadarangani u/s 3(1) of COFEPOSA was set aside at the instance of respondent No.4 by the Bench of Punjab and Haryana High Court.

¶45

(e) There is no dispute between the parties that the order of detention under COFEPOSA is the condition precedent for an order u/s 7 of SAFEMA. Since the detention order is set aside

¶46

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶47

Page 6 of 21

¶48

by the Punjab and Haryana High Court, the forfeiture order u/s 7 of SAFEMA Act will no more survive.

¶49

(f) Respondent No.4's appeal (FPA-35/BOM/2008] alongwith Appeal no. (FPA-34/BOM/2008), Rita Sadarangani V/s The Competent Authority, Mumbai was thereafter taken up for hearing by the Tribunal and was disposed of by the order dated 8^th of June, 2015. The Tribunal having considered the above facts allowed the appeal filed by respondent No.4. The forfeiture order u/s 7 of the SAFEMA was set aside. The Tribunal also directed that in case of physical possession of any of the property including the said flat was taken by the Competent Authority, SAFEMA same shall be returned to respondent No.4. The petitioners are aggrieved by the direction of the Tribunal so far as it relates to handing over the possession of said flat to the respondent No.4 and, therefore, by amendment challenged this order.

¶50

(g) There is no dispute that the said flat was in possession of the petitioners by virtue of leave and License Agreement executed by respondent No.4 and his son on 28^th December, 2000. There is also no dispute that the petitioners handed over the possession of the said flat to the Competent Authority in pursuance of the order passed by the Tribunal on 28^th November, 2013 in petitioners' appeal. There is also no dispute that the petitioners were not party to the appeal filed by respondent No.4 before the Tribunal. The petitioners claim that

¶51

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution)

¶52

in FPA-35/BOM/2008

¶53

Page 7 of 21

¶54

since forfeiture order is set aside, they are entitled to get back possession of the said flat. Respondent No.4, on the contrary, dispute the claim of the petitioners.

¶55

(h) The petitioners have already filed RAE Suit in a rent Court claiming tenancy of the said flat. A reference is also required to be made to the fact that in pursuance of the auction proceedings, the petitioner was declared highest bidder and deposited an amount of Rs.15 lacs with the DRT. This auction was subsequently set aside and the petitioner has challenged this order by filing appeal before DRT-2.

¶56

It is not in dispute that the directions were passed by the Bombay High Court in Criminal Writ Petition No.4540/2013 which was filed by Chandra Dilip Lalwani and Sandeep Dilip Lalwani challenging the Tribunal’s order dated 28.11.2013 dismissing their appeal against the Forfeiture order dated 17.3.2008. During the pendency of the said writ petition, the High Court of Punjab & Haryana by its judgment dated 27^th March, 2014 set aside the detention order issued against Nitish Ashok Sadarangani and Ashok Sadarangani. Ashok Sadarangani filed an intervention application in the said Criminal Writ Petition, which was allowed and the said directions were issued by order dated 21^st August, 2015 wherein admittedly the Hon’ble High Court set aside the order dated 8^th June, 2015 passed by this Tribunal in the appeal filed by Respondent no. 4 and directed the Tribunal to determine afresh the issue of handing over possession of the said flat after hearing all concerned.

¶57

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶58

Page 8 of 21

¶59

There is no dispute on behalf of respondent No.4 that the petitioners were in possession of the said flat pursuant to the License Agreement dated 28^th December, 2000 and they were paying the rent for the said premises up to October, 2003 and subsequently, the said rent was increased and was further ordered to be paid to the Competent Authority who is having the possession of the said flat. It is also contended by the petitioners that the rent was duly accepted by the respondent and they have also paid all the outgoings of the Society.

¶60

The contention of the applicants/Lalwanis is that the possession was taken from them by the Competent Authority in pursuance of the directions and the order passed by the Tribunal dated 28^th November, 2013 to hand over the vacant and peaceful possession of the suit property. The said possession after disposal of the litigation has to be given to them.

¶61

The arguments of Mr. B.K. Singh, Advocate the learned counsel for the petitioners is that the restitution of the flat is consequential to the petitioner having been deprived from the possession of the property by an order of a court (Tribunal’s order dated 28.11.2013 in this case) and reversal of the such order by the Hon’ble Bombay High Court and, therefore, it is the petitioners who have to get the restitution of the said flat as they are the beneficiaries for the same. Even the possession was taken by the Competent Authority from them only. Now, the respondent No.4 cannot take the possession of the flat from the Competent Authority in view of the provisions of Section 144 of the Code of Civil Procedure. Therefore, it is the duty of this Tribunal to grant restitution to the petitioner who has been deprived of their property due to an order of the

¶62

in FPA-35/BOM/2008

¶63

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution)

¶64

Page 9 of 21

¶65

Court which was subsequently reversed as being erroneous as per the principle of law, thus, the prayer made in the application is liable to be allowed. Learned counsel for the petitioners has also referred few decisions which are mentioned in paras 35 to 37 of the application on legal issue of restitution of the flat.

¶66

Ms. Manali Singhal, learned counsel for respondent No.4 submits that as far as general law on the issue of restitution is concerned, the same is quite settled, however, the facts and circumstances in the present case are entirely different. She submits that by no stretch of imagination, the petitioners/applicants can claim any right in the suit property, as admittedly, the respondent No.4 is the owner of the said flat. The Lease Deed was executed between respondent No.4 and Sandeep Dilip Lalwani for 60 months and two extensions of 11 months each and the said period has already been expired. The applicants are the trespassers in the said flat. They have no interest of any nature in the subject property. The Lease Deed was executed between Sandeep Dilip Lalwani and respondent No. 4 whereas the present application is not signed and verified by said Sandeep Dilip Lalwani, rather it is signed by his mother Chandra Dilip Lalwani, who has no privity and party to the Leave & License agreement. The lease period of the agreement has already expired in 2005. After that the respondent no. 4 is deemed to be in possession and they alone are entitled to get the possession from the Competent Authority. The application filed by the applicants is not even maintainable, it could at best be so if had been filed by Sandeep Dilip Lalwani who has not signed and verified the application rather the same is filed on behalf of Chandra Dilip Lalwani. The applicant’s son Sandeep Dilip Lalwani is merely a licensee who can claim no right whatsoever in the suit property. The MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶67

Page 10 of 21

¶68

Lease Deed has already been expired in 2005. The licensee has no right in law. As her client is the owner of the suit property, the possession thereof has to be handed over to him only even in the absence of any provision under the SAFEMA.

¶69

Learned counsel for the petitioners has admitted the existence of the License Agreement dated 28^th December, 2000 and terms thereof. It is admitted that the applicant’s son Sandeep Dilip Lalwani was the licensee of the suit property initially for a period of 60 months with an option of further renewal of two terms of 11 months each and the said period of time has already been expired.

¶70

In order to decide as to whether the petitioners have any right in the property in view of the License Agreement dated 28^th December, 2000 executed between respondent No.4 and Sandeep Dilip Lalwani, the relevant clauses of the License Agreement may be referred which read as under:-

¶71

“1. The licensors hereby grant leave and license to the licensee to occupy and use the said premises (together with the fixture and the fittings therein and one open stilt car parking space and closed garage in the building known as Oceanic Cooperative Housing Society, Carter Road, Bandra (West), Mumbai-400050. The licensee shall use the said premises for the purpose of residence only, for himself, his family members and domestic servants until terminated by efflux of time or terminated earlier as stated in clause (12) hereof, for a period of 60 months commencing from 28/12/2001 with option for further renewal of two terms of 11 months each on the same terms and conditions under this Agreement but subject to no increase of License fee over the fees paid for the previous terms.

¶72

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution)

¶73

in FPA-35/BOM/2008

¶74

Page 11 of 21

¶75

2. In consideration of the Licensors giving the said premises for use on license basis to the Licensee, the Licensee has agreed to deposit and keep deposited with the licensor as an interest fee security deposit a total sum of Rs. 22,500/- (Twenty Two Thousand Five Hundred only).

¶76

3. The Licensee shall pay to the licensors a sum of Rs. 7,500/(Seven Thousand Five Hundred only) (hereinafter referred to as “The Said Compensation”) Exclusive of all housing charges and municipal rates and taxes which will be paid by the licensee to Oceanic Co-operative Housing Society, Carter Road, Bandra (West), Mumbai-400050.

¶77

4. The licensee hereby acknowledge that immediately on the expiry of this license or earlier determination/termination thereof, the licensee shall on their own cost remove their family members and domestic servants together with all articles and all things belonging to the licensee and hand over and/or deliver the vacant, quiet and peaceful charge of the said premises without any let or hindrance.

¶78

7. The said premises shall be used for the purpose of residence only of the licensee, his family and bonafide guests and domestic servants. The license hereby granted is personal to the licensee and the licensee shall not assign or sublet or create third party rights or transfer the benefit of this agreement to any other person or part with the possession of the said premises or any portion thereof save and except as stated herein.

¶79

9. (a) The licensors hereby state that the licensors are the owners of the said premises and all the rights, title and interests in the said premise vests absolutely in the licensors and the licensors are entitled to give the said premises on leave and license basis without any hindrance whatsoever.

¶80

(b) The licensors convents within the licensee that they have a good valid power and authority to grant this license to the

¶81

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶82

Page 12 of 21

¶83

licensee and to arrive at all suitable arrangements in respect of the said premises or pertaining with the license.

¶84

(10) The licensee or any person claiming through the licensee shall not at any time put any claim of tenancy or sub tenancy or any other adverse right or title in the said premises and this agreement shall not be constructed as creating any such right or title or upon the said premises in favour of the licensee, it being expressly agreed and declared that this is a bare license with a mere limited right of user for the residence only of the licensee and his family etc. during the period that the license subsists.

¶85

(21) It is hereby agreed that without in any way affecting the rights of the licensors under this agreement and without prejudice to the rights of the licensors to adopt appropriate proceedings before the competent authority appointed under the said Act and without Prejudice to their right as provided under section 13A (2) of the said Act, if the licensee fails to vacate the said premises on the expiry of the license or earlier determination or the licensee agrees to pay to the licensors a sum of Rs. 100/per day as liquidated damages from the effective date of the expiry/termination of the agreement till the date of possession of the said premises being handed over to the licensors.”

¶86

From the said clauses, it cannot be disputed by the petitioners, that the applicant’s son Sandeep Dilip Lalwani was merely a licensee and even the license period mentioned in the Leave & License Agreement has already expired long back by flux of time. The applicants have failed to convince this Tribunal under which law they are claiming any right in the suit property even as a tenant after expiry of the leave and license agreement. The licensee now is to be considered as trespasser if the license is not renewed by the licensor as per settled law.

¶87

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶88

Page 13 of 21

¶89

Admittedly on 12.08.2003, the Competent Authority SAFEMA issued the forfeiture order forfeiting, inter alia , the said Property to the Central Government free from all encumbrances. It was further directed vide the said order as follows-

¶90

“37. Further, under Section 19 of the SAFEMA, I direct Shri Nitesh Sadarangini, Ashok Sadarangini and Rita Sadarangini to handover the peaceful possession of above said properties which stand forfeited to the Central Government, to the undersigned within 45 days from the date of service of this order.”

¶91

The order dated 13.10.2003 passed by the Hon’ble Bombay High Court, in the Writ CWP 1485 & 1486 of 2003 was for the interim arrangement qua the forfeited Property. The Hon’ble High Court directed Shri Sandeep Lalwani to pay Rs 10,000/- per month to the Competent Authority by way of rent. In the year 2006 after hearing the various Appeals filed by the Bank, the petitioners and respondent no. 4 challenging the forfeiture order dated 12.08.2003, this Hon’ble Tribunal directed the Competent Authority to pass fresh Order after taking into consideration facts and evidences and claims raised by the third parties. Accordingly the Competent Authority SAFEMA issued a fresh forfeiture order dated 17.03.2008 against the said Property. The Bank and Applicant/respondent no. 4 filed fresh Appeals against the forfeiture order dated 17.03.2008. Thereafter the respondent no. 4 during the year 201213 settled its accounts with UCO Bank vide a one time settlement offer. The UCO Bank thereafter withdrew all its pending litigation including its Appeal before this Tribunal against the forfeiture order dated 17.03.2008 against them and issued no dues certificate in their favour.

¶92

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶93

Page 14 of 21

¶94

During pendency of the Appeals being FPA 13 & 14/BOM/2008 filed by the Applicant and Sandeep Lalwani against the forfeiture order dated 17.03.2008, this Tribunal vide Order dated 05.09.2012 enhanced the rent as Rs 50,000/- per month against the said Property from September 2012. This Tribunal noted the fact that Bank has already withdrawn its Appeal against the forfeiture order and that the Applicant (i.e. Appellants in FPA 13 & 14/BOM/2008) were unable to show as to how the Appellant shall get the absolute right in the property in absence of any sale certificate issued in favour of the Applicant. In the circumstances while holding that the Applicant does not have any right to continue in occupation of the said forfeited Property, this Tribunal vide order dated 28.11.2013 dismissed Appeals being FPA 13 & 14/BOM/2008 filed by the Applicants.

¶95

On 7.01.2014 the Competent Authority SAFEMA took over the vacant and peaceful physical possession of the said Property.

¶96

The Applicant/Petitioners/Lalwanis challenged the aforesaid order dated 25.11.2013 before the Bombay High Court vide Criminal Writ Petition No. 4540 of 2013.

¶97

This Tribunal vide its judgment and order dated 08.06.2015 in the appeal(s) FPA 34 & 35/BOM/2008 filed by the respondent no. 4/owners taking note of the fact that the sole basis of the SAFEMA proceedings i.e. the detention Order dated 12.03.2001 issued against Mr. Nitesh Sadarangini has been quashed and set aside by the Punjab & Haryana High Court vide judgment and order dated 27.03.2014, allowed the Appeals and directed the Competent Authority SAFEMA to handover the possession of the forfeited properties including the said Property to the i.e. MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶98

Page 15 of 21

¶99

respondent no.4/owners. The Applicant/Petitioner by way of amendment to its Criminal Writ Petition No. 4540 of 2013 also challenged the aforesaid Order dated 8.06.2015 passed by this Hon’ble Tribunal in FPA 34 & 35/BOM/2008 to the extent and being aggrieved by the direction by this Tribunal to hand over the possession of said Property to the respondent no.-4/owners.

¶100

The High Court vide its judgment and order dated 21.08.2015 disposed of the Applicant’s Criminal Writ Petition No. 4540 of 2013 setting aside the order dated 8.06.2015 in FPA-34 & 35/BOM/2008 only in so far as it relates to handing over physical possession of the said Property, directing this Tribunal to decide afresh the issue of handing over possession of the said flat to the eligible person, after hearing all concerned. It is submitted by Ms. Manali Singhal, the learned advocate for the appellants/Sadaranganis that the appeal FPA-34/BOM/2008, Rita Sadarangani V/s. Competent Authority which was also decided by the Tribunal’s order dated 08.06.2015 alongwith the Appeal FPA35/BOM/2008 which order was set aside by the Hon’ble Bombay High Court vide order dated 21.08.2015 pertained to other properties and is not at all relevant in the present context. This is also agreed to by the Applicants/Lalwanis. The present order therefore is only in respect of the issue of handing over possession of the subject property namely Flat no. 103, Oceanic Building, Carter Road, Bandra (W), Mumbai as involved in the Appeal FPA-35/BOM/2008.

¶101

It is also pertinent to mention that the petitioners have not disclosed the fact that Sandeep Dilip Lalwani had filed the RAD suit bearing No.498/2002 in respect of the suit property for seeking injunction MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶102

Page 16 of 21

¶103

against respondent No.4 seeking declaration that he shall not be dispossessed from possession and that the said suit was dismissed by the Competent Authority by order dated 5^th April, 2005. No appeal appears to have was filed by the petitioners against the said order..

¶104

It is also not disclosed by the petitioners that Chandra Dilip Lalwani owns a flat in the same building, being Flat No.402. The said fact has also not been disclosed by her either before the High Court or before this Tribunal, rather she made the averment before the Bombay High Court that she is not having any alternative accommodation as referred in para 11A of her Criminal Writ Petition No.4540/2013.

¶105

Admittedly, Sandeep Dilip Lalwani who was the party to the Leave & License Agreement was not even a bidder in the said auction as per the case of respondent No.4. Respondent No.4 has already settled the bank dues and original documents to the title were handed over to him by the Bank through DRT. It has also been submitted on behalf of the appellants/Sadaranganis that pursuant to the settlement with the bank, the bank had filed an application with the DRT seeking closure of the recovery proceedings. The application was allowed by the DRT-II, Mumbai vide its order dated 03.02.2014 wherein the auction process was reversed holding it to be in contravention of the High Court’s order and directing return of the deposited sum to the Lalwanis the auction purchaser. The order was challenged by the petitioners in the DRAT and vide its order dated 18.04.2016, the DRAT dismissed the appeal filed by the Lalwanis against the said order dated 03.02.2014.

¶106

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶107

Page 17 of 21

¶108

From the above, therefore, it is apparent that the petitioners have also suppressed various material facts. It is also a matter of fact that Sandeep Dilip Lalwani, who was occupier of the said property by virtue of the Leave & License Agreement which has already expired and now has no existence in law to confer any right upon him to continue to occupy the said premises, cannot sue the respondent No.4 who is the rightful owner of the suit property. The suit filed by the petitioner Sandeep Dilip Lalwani for declaration of possession has already been dismissed in 2005.

¶109

It is also a matter of fact that show-cause notices issued by the Competent Authority were all along sent to respondent No.4 as owner of the said property. When the property was handed over to the Competent Authority, it was free from all encumbrances except that of bank and limited right of occupation which was being enjoyed by Sandeep Dilip Lalwani on account of Leave & License Agreement entered between the parties for limited purpose which has already been expired. No application is signed and verified by Sandeep Dilip Lalwani, although in the title of the application it is mentioned as being on behalf of Sandeep Dilip Lalwani and Chandra Dilip Lalwani. Chandra Dilip Lalwani has no right of restitution over the said property. The license period has expired by efflux of time. She has no legal right on the same property.

¶110

The licensor has not renewed the license and the licensee cannot enforce the same in law for such renewal. Even otherwise, the said period has also expired.

¶111

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶112

Page 18 of 21

¶113

The applicant/Lalwani does not have any rights whatsoever over the said Property and admittedly Mr. Ashok Sadarangani and his son Mr. Nitesh Sadarangani are the rightful legal owners of the said Property. This has been duly recorded by Hon’ble High Court in its order dated 21.08.2015 in Criminal Writ Petition No. 4540 of 2013. The ownership of the property being that of the Appellants/owners is not disputed by anyone. The Hon’ble High Court noted in the said order dated 21.08.2015 as follows:

¶114

“3. The dispute is about flat no. 103, Oceanic Building, Plot No. 321, Carter Road, Bandra (W), Mumbai – 400050. This flat admittedly belongs to respondent no. 4 and his son Nitesh Ashok Sadarangani………”

¶115

Being the rightful owners of the said Property, the forfeiture order dated 17.03.2008 were issued on the respondent no. 4 against the detention order of Mr. Nitesh Sadarangani.

¶116

After October, 2007, mere acceptance of rent from the Petitioners by the Competent Authority, SAFEMA as interim arrangement in terms of Court orders does not create a right to possession or ownership of the petitioner or her son and licensee Shri Dilip Lalwani. It is well established that properties forfeited have to be returned to its rightful owners if the forfeiture order goes. Even before the Hon’ble Bombay High Court it was an admitted position that Mr. Ashok Sadarangani and his son Mr. Nitesh Sadarangani are the owners of said property.

¶117

The applicant wrongly claimed for the restitution of the said Property. She claimed that the forfeiture order dated 17.03.2008 has been

¶118

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶119

Page 19 of 21

¶120

set aside by this Tribunal and RAD suit in a rent court claiming tenancy over the said Property is pending and its challenge qua the auction proceedings are pending. It is pertinent to mention here that the RAD Suit was dismissed way back on 5.4.2005.

¶121

Further the respondent no.4 and his son Mr. Nitesh Sadarangani are owners of the subject property. In Clause 4, 5 & 7 of the lease deed, it was admitted by the petitioner Sandeep Dilip Lalwani that after expiry of the lease period, the license shall be treated as determined and he would remove all family members on their own costs and handover the possession and thereafter, he shall not claim any adverse right or title in the premises. Therefore, now the petitioners have no locus standi of any sort to stake restitution over the said Property. Had the petitioners/applicants any interest or any right in suit property, the law down as referred by the counsel for the petitioners could help the case of the petitioners/applicants however the situation in the present case are different wherein the party cannot claim any right or interest in the suit property, therefore the decisions referred by the Counsel does not help his case. At present by its own conduct, the applicants are merely tresspasser, who cannot claim any right once the possession itself is not with them. The question of adverse possession in the present case does not arise.

¶122

In the facts and circumstances, the Application filed by the petitioner/Applicant is dismissed but no order as to costs.

¶123

The possession of the said Property shall be handed over to the Ashok Kumar Sadarangani and his son Nitesh Sadarangani, who are the

¶124

MP-56/BOM/2013 (Misc.) & MP-119/BOM/2016 (Restitution) in FPA-35/BOM/2008

¶125

Page 20 of 21

¶126

rightful owners of the said Property. Interim orders in the matter shall stand terminated.

¶127

MP-56/BOM/2013 (Misc. Appln.)

¶128

In view of the discussions and findings as above, the application is disposed of with the direction to the Competent Authority to return the amounts deposited by the Lalwanis with the Competent Authority as rent in terms of the interim orders to the respondent No. 4.

¶129

(Justice Manmohan Singh) Chairman

¶130

(Kaushal Srivastava) Member

¶131

(Anand Kishore) Member

¶132

New Delhi,

¶133

10^th November, 2016

¶134

‘d’