Allowed

Rikabdas a. Oswal v. Kolhapur Taraju Co-Op. Hsg.Soc. and Ors.

Bombay HC20 Jan 2010WP/417/1994

Case brief

AI extract

What is this about?

The High Court set aside the Collector's eviction order against a cooperative society member. The court held that the authority violated Condition No. (xiv) of the land allotment, which mandates a prior notice and a six-month opportunity for the member to remedy the breach before eviction.

What did the court decide?

The Writ Petition is allowed; the entire eviction proceedings are set aside and the orders are quashed.

Rikabdas a. Oswal Vs Kolhapur Taraju Co-Op. Hsg.Soc. and… — Landlord and Tenant | Bombay HC (2010)

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(WP 417 of 1994)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 417 OF 1994

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Shri Rikabdas Asalaji Oswal Age Adult, residing at 281-B Ward,	) )
Gujari Kolhapur, Dist. Kolhapur Vs.	)...Petitioner
1. Kolharpur Taraju Cooperative Housing Society having its office at Gujari Kolhapur	) ) )
2. The Collector of Kolhapur, Dist. Kolhapur	) )
3. The Additional Commissioner, Pune Divison, Pune	) )
4. Officer on Special Duty and Secretary (Appeals and Revisions Revenue and Forests Departmen Government of Maharashtra Mantralaya Bombay	) )) t) ) )
5. The State for Maharashtra	)...Respondents

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Mr.Prajakt M. Arjunwadkar for Petitioner Mr. R.M. Patne -AGP for Respondent Nos.2 to 5 Mrs. Anjali Helekar i/b. Mr. V.P. Navare for Respondent No.1

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(WP 417 of 1994)

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CORAM: V.M. KANADE J. DATED: 20TH JANUARY, 2011

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ORAL JUDGMENT

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Heard the learned counsel appearing on behalf of

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the Petitioner, the learned AGP for the State and the learned counsel appearing on behalf of the Society.

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The Petitioner is aggrieved by the order passed by the Collector dated 8^th June, 1991, Kolhapur whereby the learned Collector was pleased to pass an order of eviction of the Petitioner from the plot which was allotted by the Society-Respondent No.1 herein and also the order passed by the Commissioner, Pune Division in Appeal filed under section 247 of the Maharashtra Land Revenue Code, 1966 by which order, the appeal filed by the Petitioner was dismissed and lastly, the order passed by the Officer on Special Duty and Secretary, Revenue and Forest Department dated

15.12.1993.

(WP 417 of 1994)

Brief facts are that the Respondent No.1 Society was allotted land by the Collector in 1957 by exercising powers vested in him under the Land Revenue Rules, 1921. The total area which was granted in favour of the Respondent No.1 was 7 acre and 12 gunthas. Admittedly, the Petitioner is the member of the Respondent No.1 Society which was formed in the year 1955-56. The said land was allotted to the society subject to the certain special conditions which were imposed and incorporated in the said order. For the purpose this petition, condition No. (v) and condition No.(xiv) are relevant, which reads as under:-

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“Condition No.(v):- That the societies shall construct buildings within two years of the sanction of the scheme by the Collector”.

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“Condition No. (xiv):- that any one in possession of a plot through the

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(WP 417 of 1994)

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societies shall be liable to be evicted from the plots in respect of which breach of any of the conditions has occurred without compensation on the Collective giving a notice of breach and the party concerned failing to remedy it within six months of the date of the Notice.”

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The Respondent No.1 Society allotted the plots of land to its members including the plot of land allotted to the Petitioner, on payment of charges as fixed by the Society. Initially, the Respondent No.2 cancelled the original allotment in respect of plot No.4 by its order dated 7.5.1984. However, thereafter, the plot was reallotted to him and he paid the necessary charges. The respondent No.2, therefore, cancelled the earlier order and reallotted the plot to the Petitioner. By order dated 8..7.1991, the Collector, however, was pleased to

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(WP 417 of 1994)

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pass an order of eviction against the Petitioner herein and, thereafter, these orders were confirmed by the other authorities.

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Mr. Arjunwadkar, the learned counsel for the Petitioner submitted that all the authorities below have committed an error of law which is apparent on the face of record. He submitted that the learned Collector has relied only on condition No. (v) which states that construction has to be carried out within two years. He submitted that condition No. 14 specifically cast an obligation on the Collector to give an opportunity to the individual plot owner to remove the alleged breach within six months from the date of the notice. It was submitted that no such notice was issued by the Collector and consequently, the order passed by the Collector was contrary to the condition No. (xiv) of the allotment of land by the Collector to the Society. It was

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(WP 417 of 1994)

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then submitted that the Petitioner was not personally heard before passing the impugned order. It was also urged that the Petitioner could not complete the construction since the Municipal Authorities were insisting that the possession receipt should be produced by the Petitioner and this receipt was given by the Society to the Petitioner only in May, 1991.

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The learned counsel appearing on behalf of the Society submitted that ample opportunities have been given to the Petitioner to construct the premises from time to time. However, from 1970 onwards no steps were taken by him and, therefore, the Collector was justified in passing the impugned order. It was submitted that notice dated 18.5.1991 was given to the Petitioner and he was asked to remain present on 3.6.1991 at 11 O’clock. It was submitted that though in spite of the specific notice to remain present was given

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(WP 417 of 1994)

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by the Collector, the Petitioner did not appear before the Collector and, therefore, the contention of the Petitioner that there is a violation of the principles of natural justice cannot be accepted.

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On the other hand, the learned AGP for the State pointed out that an affidavit in reply was filed on behalf of the Collector and it was submitted that the Petitioner was given possession in the year 1970 and an opportunity was given to him in 1976. It was submitted that the Collector was justified in passing the said order.

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After having heard the learned counsel for the Petitioner and the Respondents at length, I am of the view that the authorities below have clearly committed an error of law which is apparent on the face of record. Condition No. (v) and condition No. (xiv) have to be

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(WP 417 of 1994)

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read together and they cannot be read in isolation. The condition No. (v) which reads as under:

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“Condition No.(v):- That the societies shall construct buildings within two years of the sanction of the scheme by the Collector”.

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The condition imposed on the society imposed an obligation on them to construct a building within two years of the sanction of the scheme. Whereas condition No. (xiv) is a condition imposed on individual member who is in possession of the plot that he is liable for eviction if he commits breach of any of the condition. The said condition no. (xiv) reads as under:

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“Condition No. (xiv):- that any one in possession of a plot through the societies shall be liable to be evicted from the plots in respect of which breach of any of the conditions has

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(WP 417 of 1994)

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occurred without compensation on the Collective giving a notice of breach and the party concerned failing to remedy it within six months of the date of the Notice.”

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The said condition clearly casts an obligation on

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the Collector to give an opportunity to remove the breach of the condition. It is no doubt but true that earlier the Collector had cancelled the allotment of the Petitioner. However, the Collector had withdrawn his order of cancellation by further order dated 20.11.1986 and had reallotted the plot to the Petitioner. The Petitioner had also paid compensation of Rs.4,724.40. If the Collector thereafter, wanted to evict the Petitioner and dispossess him, condition no. (xiv) ought to have been complied. In the order which is passed by the Collector and confirmed by the other authorities, no reliance is made to any such notice being given to the

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(WP 417 of 1994)

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Petitioner. In any event, a period of six months ought to be given to the individual members to regularize breach of the condition. No such time also admittedly was given.

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Under these circumstances, therefore, the entire proceedings of eviction which were initiated by the Collector were contrary to the condition No. (xiv) and, therefore, on this ground alone the said order is liable to be set aside and quashed.

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Writ petition, therefore, is allowed in terms of prayer clause (a) and disposed of.

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(V.M. KANADE J.)

Rikabdas a. Oswal v. Kolhapur Taraju Co-Op. Hsg.Soc. and Ors.

Case brief

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Rikabdas a. Oswal v. Kolhapur Taraju Co-Op. Hsg.Soc. and Ors.

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