Allowed

Pitamber Dayaram Thakur and Anr. v. State of Maharashtra and Ors.

Bombay HC5 Apr 2007WP/510/1999

Case brief

AI extract

What is this about?

Writ petition challenging eviction and regularisation orders under MHADA Act. Division Bench found violation of natural justice as Petitioner was not given proper opportunity to produce documents. Petition allowed, orders set aside, matter remanded to Estate Manager for fresh consideration.

What did the court decide?

Impugned orders dated 18.12.1998 set aside; matter remanded to Estate Manager to give proper opportunity to parties and decide afresh within three months.

Pitamber Dayaram Thakur and Anr. Vs State of Maharashtra… — Landlord and Tenant | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.510 OF 1999

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Pitamber Dayaram Thakur & Anr. ....Petitioners
V/s.

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The State of Maharashtra & Ors. ....Respondents

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Mr.G.K. Masand with Ms.S.R. Sawant for the
Petitioners.

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Mr.G.W. Mattos, AGP for Respondent Nos.2 and 3.

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Mr.V.T. Lulia for Respondent No.7.

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CORAM : F.I. REBELLO &
R.M. SAVANT, JJ.
DATED : 5TH APRIL, 2007.

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ORAL ORDER : (PER R.M. SAVANT, J.)

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1.This Petition filed under Article 226 of the
Constitution of India is an unfortunate case where two
real brothers i.e. the Petitioner No.1 and Respondent
No.7 are litigating against each other for last more
than 10 years. The bone of contention is the
tenement/flat bearing No.16/1999 on the second floor
of building No.6 in Ram Krishna Nagar and in the
Co-Operative Society known as Ram Krishna Nagar Melody
Co-Operative Housing Society Ltd. The Petitioners by
the above Petition filed under Article 226 of the
Constitution of India are impugning the order dated

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24.3.97 and two orders both dated 18.12.1998 passed by
the Competent Authority under the provisions of
Maharashtra Housing Area and Development Act 1976
(hereinafter referred to for the brevity sake as the
said Act). By the said order dated 24.3.97 the
Petitioners Appeal against their eviction has been
dismissed, whilst by two order dated 18.12.98 the
Petitioners case for regularisation has been rejected
whilst that of the Respondent No.7 has been accepted.

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2.The factual matrix giving rise to the filing
of the above Petition can be stated thus :-

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.The original allottee in respect of the said
tenement/flat No.16/199 on the second floor in
building No.6 was one N.H. Krishnan who was allotted
the said flat by the then Bombay Housing Board some
time in December, 1950. The said N.H. Krishnan
transferred his right, title and interest in respect
of the said flat to one Manjeet Chadha under the
agreement for transfer dated 7.4.1986. Thereafter by
a further agreement for transfer dated 21.11.1989
right, title and interest in respect of the said
tenement/flat was purchased by Respondent No.7 herein
for a consideration of Rs.3,45,000/-. Respondent No.7
thereafter became a member of the society of the flat

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owners of the concerned building which society was
known as Melody Co-Operative Housing Society.
Respondent No.7 applied to MHADA for regularisation of
allotment of the tenement/flat in his name.

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3.It appears that in December, 1992 on a
routine inspection of the tenement/flat in question,
the Estate Manager of MHADA reported that the
tenement/flat in question was in occupation of
Petitioner No.1 and his family members though it stood
in the name of Mr.N.H. Krishnan and therefore, a
report was submitted that the said tenement/flat was
in unauthorised occupation. On receipt of the said
report, the proceedings under Section 66(1) of the
said Act were initiated and the eviction order dated
23.4.1997 came to be passed evicting all the occupants
from the tenement/flat in question and the same was
sealed. In the said order of eviction, leave was
granted to Respondent No.7 to establish his claim in
respect of the tenement/flat in question in the light
of deed of transfer dated 21.11.1989 and other
documents executed by the original allottee in his
favour. It appears that subsequently after examining
the relevant documents, MHADA regularised the
tenement/flat in favour of Respondent No.7 herein by
an order passed under the said Act.

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4.The Petitioners herein being aggrieved by the
order of eviction dated 23.4.1997, filed Writ Petition
No.5072 of 1998 in this Court, challenging the said
order of eviction. It was the case of the Petitioner
No.1 herein who was Respondent No.3 in the said
Petition, that he had also contributed a sum of
Rs.1,25,000/- towards the purchase of the said
tenement/flat along with his brother i.e. Respondent
No.7, though the documents stood in the name of his
brother i.e. Respondent No.7. The said Writ Petition
was disposed of by a Hon’ble Division Bench of this
Court by an order dated 7.10.1998 directing that the
Competent Authority of MHADA would reexamine the
claims of the Petitioner herein as well as Respondent
No.7 herein and pass a speaking order in accordance
with law. In compliance with the said directions of
this Court, the Competent Authority of MHADA passed
the order dated 18.12.1998 rejecting the claim of the
Petitioner herein and confirming the
allotment/regularisation of the tenement/flat in the
name of Respondent No.7 herein.

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.The said order dated 18.12.1998 passed by the
MHADA has been challenged by the present Petition.
The Petition challenges the order of the Appellate

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Authority dated 23.4.97 which confirms the order of
the Competent Authority and also the two orders dated
18.12.98 whereby the claim of the Petitioner No.1 for
regularisation has been rejected while that of
Respondent No.7 has been accepted. In the above
Petition, by an order dated 6.3.1999, this Court
appointed a Conciliator as regards the dispute between
the parties. The said Conciliator was a Hon’ble
Retired Judge of this Court. The said Conciliator
after holding meetings with the parties, had submitted
a report to this Court. The said report was
challenged by Respondent No.7 herein by filing his
objections before this Court. The said objections
were rejected by this Court and it appears that an
order came to be passed by this Court on 6.10.1999,
which order came to be challenged before the Apex
Court by way of Civil Appeal No.3247 of 2000 (arising
out of the S.L.P. Civil No.73539 of 1999). The said
SLP came to be disposed of by the Apex Court by its
order dated 5.5.2000 by which order the Apex Court set
aside the order dated 6.10.1999 as well as the
settlement agreement dated 31.8.1999 filed by the
Conciliator before this Court. This Court was
directed to dispose of the above Writ Petition afresh
on merits and in accordance with law. This is how the
present Petition has been placed for hearing before

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us.

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.On behalf of the Respondents, an affidavit
has been filed on behalf of Respondent No.7 herein.
The said affidavit supports the order passed by MHADA
accepting the claim of Respondent No.7 in respect of
the said tenement/flat.

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5.We have heard Mr.G.K.Masand for the

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Petitioners., Mr.G.W. Mattos, AGP for Respondent
Nos.2 and 3 and Mr.V.T. Lulia the learned counsel for
main contesting Respondent No.7. On behalf of the
Petitioners Mr.Masand made the following submissions
in respect of the order passed by the Appellate
Authority dated 23.4.97. The Appellate Officer

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himself was acting as Competent Authority before his
promotion to the post of Appellate Authority. Having
substantially heard the matter as a Competent
Authority, it was improper on the part of Respondent
No.4 to hear the same matter as an Appellate
Authority. Insofar as two orders passed by the Estate
Manager both dated 18.12.98, is the submission of
Mr.Masand, that this Court vide its order dated
7.10.98 had directed Respondent No.2 in the said
Petition, i.e. Chief Officer to consider the claim
and therefore, it was improper for the Chief Officer

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to direct the Estate Manager to hear the Petitioner
and Respondent No.7 in respect of their claims. The
real submission of Mr.Masand is that the Estate
Manager had not granted a proper opportunity to the
Petitioner to produce the relevant material in support
of his claim and, therefore, the order passed was in
breach of the principles of natural justice. The
learned counsel for the Petitioner drew our attention
to the order passed by the Division Bench of this
Court dated 7.10.1998 in Writ Petition No.5072 of
1998, by which order the matter was remanded to MHADA
so as to enable the Petitioner and Respondent No.7 to
set up their respective claims for regularisation of
their occupation before Respondent No.2 who was the
Chief Officer of MHADA.

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6.On behalf of Respondent No.2 and 3, the

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learned AGP Shri Mattos submitted that under the
Maharashtra Housing and Area Development Board
(Establishment, Sale, Transfer and Exchange of
Tenements) Regulations, 1981, it is the Estate
Manager, who is the Competent Authority in the cases
falling under Section 66 of the said Act and
therefore, the Chief Officer had correctly directed
the Estate Manager to decide the claims of the
Petitioner and Respondent No.7. The order of the

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Division Bench dated 7.10.1998 would have to be
construed in the context of the Act and the Estate
Management Regulations framed under the said Act. The
Petitioner having appeared before the Estate Manager,
as well as having filed an Appeal before the Appellate
Officer, is now estopped from challenging the
jurisdiction of the Estate Manager.

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.As regards the violation of principles of
natural justice as alleged by Mr.Masand, the learned
AGP submitted that sufficient opportunity was granted
to the Petitioner to produce the relevant documents,
but the Petitioner failed to produce the same.
Respondent No.7 however, produced the relevant
documents which are germane to regularisation, like
the N.O.C. from the previous owner, as well as the
N.O.C. from the society and in view of such evidence
produced by Respondent No.7, the tenement/flat was
regularised in his name. The learned AGP therefore,
submitted that there was no violation of principles of
natural justice and it is a plain and simple case
where the Petitioners had failed to substantiate his
claim before the authority.

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.On behalf of Respondent No.7, Mr.Lulia, the
learned counsel submitted that his client - Respondent

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No.7 had contributed substantially towards the
consideration which was paid for tenement/flat in
question to the original allottee - Mr.Chadha. It was
also submitted by Mr.Lulia that the Petitioner does
not have any document in his possession to
substantiate his claim over the tenement/flat in
question.

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7.We have bestowed our anxious consideration to
the rival contentions. It is significant to note that
by the order dated 7.10.1998 passed in earlier Writ
Petition No.5072 of 1998, this Court looking to the
controversy in question, had directed the Petitioner
and Respondent No.7 to set up their claim before
Respondent No.2. The said order of this Court dated
7.10.98 has become final and binding. It would,
therefore, not be open for the Petitioners in the
present Petition to challenge the order passed by the
Appellate Authority dated 24.3.97 on any ground. The
dispute in question is as regards the regularisation
of the tenement/flat in question, the Petitioner and
Respondent No.7 pursuant to the said order,appeared
before the Competent Authority and set up their
claims. The Competent Authority on consideration of
the material produced by Respondent No.7, decided in
his favour and rejected the claim of the Petitioner.

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In so far as the jurisdiction of the Competent
Authority is concerned, looking to the provisions of
the said Act and Estate Management Regulation, the
Competent Authority would be the Estate Manager, as
the dispute has arisen on account of the action taken
by MHADA under the provisions of Section 66 of the
MHADA Act. The Regulation 3(5) of the said Regulation

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defines the duties and functions of the Estate
Manager, one of which is the jurisdiction in the cases
reported under Section 66 of the said Act. A case for
regularisation would only arise, when there is an
unauthorised occupation. In the present case, the
Division Bench had passed the order in a Writ Petition
challenging the order of Eviction dated 24.3.97. The
order of the Division Bench would therefore have to be
considered in the context of the said statutory
regulations. In that view of the matter, we do not
find any substance in the contention of the
Petitioners that the Estate Manager had exercised the
powers in violation of the said order dated 7.10.1998.
In any event, the Petitioners are now estopped from
challenging the jurisdiction of the Estate Manager
having appeared before him pursuant to the order
passed by this Court.

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8.In so far as the violation of the principles

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of natural justice are concerned, we find considerable
ment substance in the contention of the learned
counsel for the Petitioner. In our view, a proper
opportunity should have been given to the Petitioner
by the Estate Manager and should not have merely
decided the same on account of the fact that the
Petitioner could not produce any documents. It is the
case of the Petitioners that though the hearing was
fixed on 25.11.98 vide letter dated 20.11.98 by the
Respondent No.3, no such hearing took place on the
said date and the Petitioner No.1 was informed that
the next date would be communicated to the
Petitioners. The Petitioners were, therefore, shocked
and surprised to receive letter dated 18.12.98 on
22.12.98. By the said letter it is communicated to
the Petitioners that since the Petitioners had failed
to produce the NOC from the original tenants as well
as the Co-operative Society, the Petitioners claim for
regularisation could not be considered. It is
significant to note that the said letter dated
18.12.98 does not refer to the earlier correspondence
entered into by the Petitioners. The said letter also
does not refer to the letter dated 20.11.98 by which
letter hearing was fixed on 25.11.98. The Competent
Authority merely by a cryptic order has rejected the
claim of the Petitioners. In our view, therefore, a

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proper opportunity was not given to the Petitioners to
state their claim. The matter would therefore, have
to be remanded back to the Competent Authority for a
decision afresh on the said issue. The Competent
Authority to allow the Petitioners a proper
opportunity to substantiate their claim in respect of
the said tenement/flat in question.

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9.In that view of the matter, the Petition is
allowed. The impugned orders both dated 18.12.1998
one rejecting the claim of the Petitioner and the
other accepting the claim of Respondent No.7 are set
aside and the matter is remanded back to the Estate
Manager for consideration afresh as regards the issue
of regularisation. On such remand, the Estate Manager
to give a proper opportunity to both the Petitioners
and the Respondent No.7 and thereafter to decide the
matter in accordance with law within three months from
date.

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10.Rule is accordingly made absolute to the
aforesaid extent with no order as to costs.

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(R.M. SAVANT, J.)

Pitamber Dayaram Thakur and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Pitamber Dayaram Thakur and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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