Appeal against confirmed eviction order from a service quarter. Court held that allottee had no title to transfer possession, payment does not create rights, and society formation is irrelevant.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTER PATENT APPEAL NO.22 OF 2014 WITH
CIVIL APPLICATION NO.35 OF 2014
Gunvantiben wd/o Bhupatrai
Shah (Rupani)...Appellant
vs.
Maharashtra Housing And
Area Development Authority & others...Respondents
Mr.Makarand Kale i/b M/s.M.P.Vashi & Associates for
the Appellant
None for the respondents
CORAM : A.S.OKA, &
SMT.ANUJA PRABHUDESSAI, JJ.
DATE : DECEMBER 2, 2016
P.C.:
1By this Letters Patent Appeal, the appellant
has taken an exception to the Judgment dated 21st
February 2012 passed by the learned Single Judge.
An order of eviction was passed against the
petitioner by the Competent Authority. An appeal
was preferred by the appellant against the said
order. The appeal was dismissed by the Appellate
Authority. Being aggrieved by the order of eviction
which was confirmed by the Appellate Authority, a
writ petition was filed before the learned Single
Judge by the Appellant which was rejected by a
reasoned order.
2The first submission of the learned counsel for
the appellant is that the appellant could not give
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reply to the show cause notice, and therefore, an
order of remand be made. The second submission is
that the occupants of various premises including the
appellant have formed a co-operative housing
society, and therefore, eviction proceedings are not
competent. He submitted that the possession of the
appellant ought to have been protected.
2We have considered the submissions. It is not
in dispute that a show cause notice of eviction was
served to the appellant. In the order of the
Competent Authority, it is recorded that on behalf
of the appellant, an Advocate addressed a notice
dated 9th March 2007 in which it was alleged that
the appellant was a lawful tenant in respect of the
tenement and he was regularly paying the rent to the
concerned Authority of Bombay Housing and Area
Development Board which is one of the regional
boards constituted by the Maharashtra Housing And
Area Development Authority under the provisions of
the Maharashtra Housing And Area Development
Act,1976 (for short `the said Act of 1976').
3Perusal of the Judgment of the Appellate
Authority shows that the said Board had allotted the
tenement in dispute to one Shri C.R.Dhole who was
the Rent Collector as a service quarter. Shri Dhole
was dismissed from the employment with effect from
7th November 1974. The eviction proceedings were
initiated to get the possession of the said
tenement. It is recorded by both the Authorities
that on 5th July 1978, eviction order was passed and
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the possession of the said tenement was taken by the
said Board on 9th September 1978. At the time of
taking possession, one Mr.B.M.Shah and his family
was found residing there. The case of the
Authorities is that thereafter, the appellant broke
open the lock and took possession.
4A proposal for regularization of the possession
of the appellant was considered. However, a Legal
Advisor of the MHADA opined that the tenement cannot
be regularized as the same was allotted as a service
quarter. Thereafter, MHADA proceeded to initiate
action against the appellant.
5The Appellate Authority in the impugned order
has noted that the case of the appellant was that
she purchased the said tenement from Shri Dhole and
therefore, she was a lawful occupant of the
premises. As stated earlier, Shri Dhole had no
right in respect of the said tenement as the same
was allotted to him as a service quarter. An order
of eviction has already been made against Shri
Dhole. He had no authority to transfer the said
tenement to the present appellant. Therefore, the
Appellate Authority concluded that the appellant is
an unlawful occupant. In fact, not a single
document is produced by the appellant showing that
the tenement was purchased by her from Shri Dhole.
6We have perused the Judgment of the learned
Single Judge. We find that the contention that a co-
operative housing society has been formed by the
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occupants was not at all raised before the learned
Single Judge. The contention raised before the
learned Single Judge is that the appellant has been
acquitted in prosecution for criminal tresspass.
The second submission was that huge amount was paid
by the appellant to the authorities.
7The learned Single Judge has right concluded
that merely because the appellant has paid
compensation, it creates no right in her favour.
The learned Single Judge also noted that the
appellant did not dispute that a show cause notice
issued by the Competent Authority was served upon
her. The learned Single Judge also noted that the
Competent Authority while passing order of eviction
has taken into consideration the letter/notice
dated 9th March 2007 issued by the Advocate for the
appellant.
8Therefore, there is a clear finding of fact
recorded by the Competent Authority as well as the
Appellate Authority that the appellant has no right,
title or interest in respect of the tenement in her
possession which was allotted to Shri Dhole as a
service quarter. The learned Single Judge has
confirmed the said finding. We find no error in the
view taken by the learned Single Judge.
9Even assuming that a housing society has been
formed by the persons possessing various structures,
that will not confer any right on the said society
in respect of the tenement. There is no merit in the
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Letters Patent Appeal and the same is dismissed.
Civil Application No.35 of 2014ndoes not survive and
the same is dismissed.
(ANUJA PRABHUDESSAI,J.)(A.S.OKA,J.)
3 issues framed by the court
Whether prosecution acquittal and payment of compensation can confer title or right to occupy a service quarter allotted to a former employee.
Whether formation of a cooperative housing society by occupants can validate possession of a tenement allotted as a service quarter.
Whether an order of eviction passed against the original allottee is valid when the allottee transferred such possession without title.
1 provisions across 1 enactments
Gunvantiben wd/o Bhupatrai Shah (Rupani)
Maharashtra Housing And Area Development Authority
A.S.Oka
Anuja Prabhudesai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court