Allowed

Arvind Pandurang Dhindale v. State of Maharashtra, through Secretary, Housing Dept and Ors.

Bombay HC24 Sept 2014WP/949/2013

Case brief

AI extract

What is this about?

Challenging allotment of a Scheduled Tribe tenement obtained by the fifth respondent via fabricated caste certificates. The Court cancelled the allotment, directed recovery of possession via the Court Receiver, and directed authorities to consider the petitioner's case for the vacant tenement. Criminal proceedings against the fraudster were directed.

What did the court decide?

Possession of tenement No.4/B/504 to be handed over to the second respondent; respondent to pay Court Receiver's costs; respondent to consider petitioner for allotment or dispose of flat as per policy

Arvind Pandurang Dhindale Vs State of Maharashtra, through… — Property and Title | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
 WRIT PETITION NO.949 OF 2013

¶5

Arvind Pandurang Dhindale ...Petitioner
vs.
State of Maharashtra & Ors. ...Respondents

¶6

Mr.C.K.Bhangoji i/b Mr.R.K.Mendadkar for the
Petitioner

¶7

Mr.V.S.Gokhale, AGP for the respondent Nos.1,3 and
4.

¶8

Ms Kirti Paralkar i/b Ms Neha Bhide for respondent
No.2

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Mr.S.S.Deshpande, Court Receiver, High Court,Bombay

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CORAM : A.S.OKA, &
 G.S.KULKARNI, JJ.

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 DATE : SEPTEMBER 24,2014

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P.C.:

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1Notice for final disposal of the petition was
issued. Even the order dated 2nd September 2014
records that the petition shall be disposed of
finally at the stage of admission.

¶14

2The case made out in the petition is that the
petitioner and fifth respondent applied to the
second respondent (Mumbai Housing and Area
Development Board) for allotment of a tenement under
the housing scheme of the second respondent of
January 2010. The applications for allotment were
made under the Scheme No.241 located at Canara
Engineering, Ghatkopar (East), Mumbai. Both the
petitioner and the fifth respondent applied for

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allotment of a tenement which was reserved for the
persons belonging to Scheduled Tribe. The fifth
respondent applied by producing the caste
certificate dated 9th September 1994 purpotedly
issued by the Executive Magistrate, Chalisgaon and
the caste validity certificate dated 4th March 2012
purportedly the Scheduled Tribes Certificate
Scrutiny Committee, Pune Division, Pune. The
petitioner is relying upon the information furnished
to him under the Right to Information Act,2005 by
the Information Officer of the Scheduled Tribes
Certificate Scrutiny Committee, Pune Division, Pune
by letter dated 20/21st December 2012 which records
that the Caste Validity Certificate dated 4th March
2012 was never issued to the fifth respondent and in
fact, the caste claim of the fifth respondent was
never received by the said Caste Scrutiny Committee.
It also records that though the fifth respondent has
produced the Caste Validity Certificate dated 4th
March 2012 bearing OO523, the certificate bearing
the said number was issued to one Smita Laxman
Sonawane in February 2000 and under the same serial
number, no Caste Validity Certificate was issued on
4th March 2012. Similarly, the petitioner is relying
upon the letter dated 8th January 2013 issued by the
Public Information Officer/Resident Nayab Tahsildar,
Chalisgaon, District Jalgaon stating that no Caste
Certificate as claimed by the petitioner was issued
by the said office.

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3The fifth respondent was allotted a tenement
No.4/B/504 which was reserved for a member of a

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Scheduled Tribe. The challenge in this petition
under Article 226 of the Constitution of India to
the said allotment on the ground that the fifth
respondent does not belong to a Scheduled Tribe and
that he has obtained the allotment by producing a
fabricated caste certificate and a fabricated Caste
Validity Certificate. By order dated 5th July 2013,
this Court directed the Court Receiver to take a
symbolic possession of the said tenement. The
report of the Receiver disclose that the sixth and
seventh respondents were found to be in possession
thereof.

¶20

4There were further orders passed by this Court.
By order dated 24th June 2014, the Court Receiver was
directed to depute its representative for
ascertaining the name of the person who was
occupying the said tenement. There is a further
order passed on 9th July 2014 which records that one
Mr.Shivaji Ganpat Shinde has given the said tenement
to the present occupant. Under the said order, the
Court Receiver, High Court, Bombay was directed to
take physical possession of the said tenement after
dispossessing the persons found in possession. The
Court Receiver's Report No.199 of 2014 was filed on
record which states that on 9th July 2014, the
physical possession of the said tenement has been
taken over and the same has been sealed. One Shivaji
Ganpat Shinde is claiming to be the purchaser
appeared before this Court and sought time to engage
an Advocate. The said Shri Shivaji Ganpat Shinde
was impleaded as the eighth respondent. The order

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dated 2nd September 2014 records the contention of
the learned counsel for the eighth respondent that
the fifth respondent has deceived and duped the said
respondent. This Court in the said order observed
that the eighth respondent cannot claim any right in
relation to the tenement and, therefore, this Court
observed that it is for the eighth respondent to
adopt appropriate remedy as against the fifth
respondent.

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5There is an affidavit-in-reply filed by Shri
R.B.Pandure, Senior Research Officer, Scheduled
Tribe Certificate Scrutiny Committee, Pune Division,
Pune which records that the said Committee never
received any proposal of the caste claim of the
fifth respondent and, therefore, the Caste Validity
Certificate produced by the fifth respondent is
bogus. Moreover, the said affidavit records that the
caste certificate and the Caste Validity Certificate
record that the fifth respondent belongs to caste
“Bhana”, a Scheduled Tribe. Though in the list of
Scheduled Tribes , “Bhana” is not included, what is
included is “Bhaina”. The said affidavit
categorically states that the certificate of
validity produced by the fifth respondent was bogus.

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6We must note that though the petition is
pending for considerably long time, the second
respondent has not chosen to file any affidavit.
The orders of this Court record that the allotment
made by the second respondent to the fifth
respondent has been cancelled. A statement of the

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learned counsel for the second respondent to that
effect has been noted in the order dated 11th April
2014.

¶27

7The fifth respondent has not chosen to appear
before this Court. There is nothing on record to
show that he has challenged the order of
cancellation of allotment issued by the second
respondent. The sixth to eighth Respondents are
claiming through the fifth respondent. As the
tenement was reserved for the person belonging to
Scheduled Tribe, the fifth respondent was never
entitled to the allotment of the said tenement. As
the fifth respondent has no right, even the sixth to
eighth respondents cannot claim any right.

¶28

8The learned counsel for the petitioner produced
a copy of the information brochure issued by the
second respondent. The said brochure is marked `X'
for identification. The contention of the learned
counsel for the petitioner is that as per the
information published in the said brochure and in
particular, clause 4.8, the case of the petitioner
for allotment of the said tenement will have to be
considered. The learned counsel for the petitioner
claimed that the petitioner is first on the Waiting
List.

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9Now as the allotment made by the second
respondent of the said tenement to the fifth
respondent has been cancelled, the said tenement
will have to be allotted by the second respondent in

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accordance with law. If as per the policy of the
second respondent, the petitioner is entitled to
allotment of the said tenement, the second
respondent will have to consider the case of the
petitioner for the allotment in accordance with law.

¶32

10We must note here that notwithstanding the
first order of this Court dated 5th July 2013, the
second respondent did not take any steps. As noted
above, as on 11th April 2014, the second respondent
stated before the Court that the process of
recovering possession of the flat has been
commenced. As the second respondent took no action
for recovering the possession, it appears from the
Court Receiver's Report that the possession of the
said tenement was transferred from one person to
another. One Transferee inducted a licensee in the
said tenement. Only under the orders of the Court,
the Court Receiver, High Court, Bombay took physical
possession of the said tenement. Therefore, the
cost and charges payable to the Court Receiver will
have to be borne and paid by the second respondent.
While discharging the Court Receiver, we propose to
issue directions to the Court Receiver to hand over
the vacant possession of the said tenement to the
second respondent.

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11Hence, we pass the following order:

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(I)We direct the Court Receiver, High Court,
Bombay to hand over possession of the tenement
No.4/B/504, situated at the site of Canara

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Engineering, Ghatkopar (East), Mumbai, which is
more particularly described in paragraph 1 of
the Court Receiver's Report No.199 of 2014 to
the second respondent;

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(II) We direct the Court Receiver to place the second respondent in possession of the said tenement on 3^rd November 2014 at 11.00 a.m. The second respondent shall depute its authorised Officer to take possession of the tenement from the representative of the Court Receiver at 11.00 a.m on Monday 3^rd November 2014;

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(III) On delivery of the possession of the tenement to the second respondent as aforesaid, the Court Receiver shall stand discharged without passing accounts;

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(IV) The cost and charges payable to the Court Receiver shall be borne/paid by the second respondent. Necessary amount shall be paid by the second respondent to the Court Receiver within a period of one month from the date of which the amount payable by the second respondent is communicated by the Court Receiver, High Court, Bombay;

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(V) After the second respondent is put in possession of the said tenement, the said respondent shall consider the case of the petitioner for allotment of the said tenement in accordance with law;

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(VI) If it is permissible to do so in accordance with the policy of the second respondent, the allotment of the said tenement be made to the petitioner;

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(VII) If the policy of the second respondent does not permit the allotment of the said tenement to be made to the petitioner, the second respondent shall dispose of the said flat as per the prevailing policy after giving adequate publicity and an opportunity to the members of the public to make a claim for the allotment of the said tenement;

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(VIII) We make it clear that none of the fifth to eighth respondents have any right, title or interest in respect of the said tenement;

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(IX) We direct the second respondent as well as the State Government to set the criminal law in motion, if not already done, against the fifth respondent for procuring the allotment of the tenement by producing the fabricated caste certificate as well as caste validity certificate;

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(X) Petition is disposed of on above terms;

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(XI) All concerned to act upon an authenticated copy of this order;

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(XII) If the second Respondent fails to pay the costs and charges of the Receiver, we grant liberty to the Receiver to move this Court for appropriate directions by submitting a report.

Arvind Pandurang Dhindale v. State of Maharashtra, through Secretary, Housing Dept and Ors.

Case brief

What is this about?

What did the court decide?

Arvind Pandurang Dhindale v. State of Maharashtra, through Secretary, Housing Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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