Mumbai Housing And Area .. ... vs Mr P.G.Lad With Ms Aparna ...
2012 Latest Caselaw 387 Bom

    Tapadia RR


                                       1 / 15                           WP/ 2546/2012

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                       
                WRIT PETITION NO.2546 OF 2012

    Ved Prakash Gupta




                                                               
                                          Vs

    1. Mumbai Housing And Area                                        .. Respondents




                                                              
    Development Board and Ors
                                                ........




                                                
    Mr.Abhijeet A. Desai with Mr Manish Saurashtre, Advocates for

    the Petitioner.          
    Mr   P.G.Lad      with   Ms   Aparna        Murlidharan,        Advocates          for
                            
    Respondent No.1.

    Mr   R.V.Govilkar    with     Mr   S.S.Inamdar       i/b     Mr     V.D.Govilkar,

    Advocates for Respondent No.2.
           


    Mr Gaurav Joshi with Ms P.L.Bachani i/b M/s I.R.Joshi & Co,
        



    Advocates for Respondent No.3.

                                            .......





          CORAM :                      DR.D.Y.CHANDRACHUD AND
                                       R.G.KETKAR,JJ.

          RESERVED ON :                6 NOVEMBER 2012
          PRONOUNCED ON :              22 NOVEMBER 2012





    JUDGMENT: (Per R.G.KETKAR,J.)

    1.    Rule.    With the consent of counsel, the Rule is made

returnable forthwith. Counsel for the Respondents waive service.

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By consent, the Petition is taken up for final hearing.

2. By this Petition under Article 226 of the Constitution the

Petitioner has prayed for the issuance of a writ of Mandamus or

any other writ, order or direction to the First Respondent-

Maharashtra Housing and Area Development Authority

("MHADA") to declare the Second and Third Respondents as

ineligible for allotment of a flat in Scheme Code No.238 of

MHADA Lottery Scheme 2010 and to process the wait list of the

eligible candidates in a time bound manner.

3. The facts and circumstances giving rise to the filing of the

Petition, briefly stated, are as follows: The Petitioner and the

Second and Third Respondents applied for allotment of a flat in a

housing scheme of MHADA, viz.,Scheme No.238. The Petitioner

was declared to be eligible for allotment of a flat and his name

appeared at Sr.No.6 in the wait list. Presently, the Petitioner is at

Sr.No.2 in the wait list. It is the case of the Petitioner that the

Second and Third Respondents are ineligible for the purpose of

allotment of a flat in the scheme on the ground that they do not

fulfill condition no.1.2 which stipulates that the applicant or his or

her spouse or minor children should not have any residential

room or premises or any residential plots of land in his/her/their

name/names, which are acquired privately and which fall within

the boundaries of the Municipal Corporation of Greater Mumbai.

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It is on this basis the Petitioner has instituted the present Petition

for the aforesaid reliefs.

4. On behalf of the First Respondent, the Deputy Chief Officer

has filed an affidavit on 23 August 2012. It is contended that

initially the Third Respondent was declared ineligible as she did

not submit Income Certificate/Affidavit as prescribed in "B"

Format as also Income Affidavit of her husband as prescribed in

"C" Format. By an order dated 27 September 2010 the Deputy

Chief Officer held that the Third Respondent is ineligible and if

she desires to file an appeal, she may file an appeal before the

Appellate Authority, the Director of Marketing. The Third

Respondent thereafter submitted Income Affidavits and

accordingly a provisional offer letter dated 7 October 2010 was

issued. It was further contended that the First Respondent

received a complaint from the Petitioner that the husband of the

Third Respondent has a residential flat in Mumbai. The First

Respondent, it is stated, will take an appropriate decision in the

matter.

5. In so far as the allotment in favour of the Second

Respondent is concerned, it was further contended that after

scrutiny of the documents submitted by the Second Respondent,

by an order dated 21 July 2010 the Second Respondent was

declared ineligible on the ground that her husband has premises

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in his name within the jurisdiction of the Corporation. Aggrieved

by this order the Second Respondent an preferred appeal before

the Appellate Authority and submitted (i) a Sale Deed dated 31

May 2010; (ii) an Agreement to Sell dated 18 November 2009;

and (iii) a Leave and Licence Agreement dated 7 August 2009.

After considering these documents the Appellate Authority

allowed the appeal and set aside the order dated 21 July 2010. It

was therefore prayed that the petition may be dismissed with

compensatory costs.

6. Opposing the admission, the Second Respondent has made

an affidavit dated 22 August 2012 inter alia contending that

though Room No.17, situate in Kumar Sadan, "D" Wing was in the

name of her husband, he had agreed to sell the premises on 18

November 2009 for a consideration of Rs. 13,00,000 of which

Rs.50,000 was received by cash on the date of the execution of

the agreement and the balance was to be paid by cheque. On

realization of the cheques and upon payment of full

consideration, the amount of Rs.50,000 was to be returned. It is

further asserted that under a Leave and Licence Agreement

dated 7 August 2008 the Second Respondent acquired flat

No.187 in Alshms Apartments which was further extended by

another agreement dated 7 August 2009. The Second

Respondent claims that along with her family she was residing in

5 / 15 WP/ 2546/2012

the flat taken on leave and licence basis. The Agreement to Sell

was registered on 31 May 2010 and a Sale Deed was executed

on 31 May 2010 and the purchasers had paid Rs 13,00,000 by

way of cheques, details whereof were set out in the affidavit. It is

the case of the Second Respondent that the result of the lottery

was declared on 18 May 2010 and before that, i.e. on 16 May

2010 an amount of Rs. 8,00,000 out of the total consideration of

Rs 13,00,000 was received from the purchasers and the

remaining amount of Rs. 5,00000/- was received on 26 May 2010.

The Second Respondent applied in the prescribed form on 22

January 2010 to MHADA for allotment of a flat and before the

submission of the application, on 18 November 2009 the Second

respondent's spouse has agreed to sell the flat owned by him.

The submission of the Second respondent is that she has not

violated condition 1.2 laid down in the Information Booklet

whereby the Applicant or her husband should not own any

residential premises within the limits of the Municipal

Corporation.

7. The Third Respondent made an affidavit dated 8 September

2012 resisting the Petition. It was denied that the Third

Respondent is not eligible. It was submitted that on the basis of

Exhibits "E" and "F" he was issued a show cause notice calling

upon him to produce relevant documents before the First

6 / 15 WP/ 2546/2012

Respondent. The Third Respondent has submitted all the

supporting documents on 9 January 2012. He therefore prayed

that the petition may be dismissed.

8. In support of the petition, Counsel contended that the

Second and Third Respondents are not eligible for allotment of a

flat under Scheme Code No.238 of the MHADA Lottery Scheme

2010. He submitted that on the date of the application the

Second and Third Respondent were disqualified in terms of clause

1.2 of the Information Booklet. He submitted that insofar as the

Second Respondent is concerned, the Agreement to Sell dated

18 November 2009 is not a registered instrument. The Sale Deed

was executed on 31 May 2010 and thus the right, title and

interest in the flat owned by the spouse of the Second

respondent was extinguished after the execution of the Sale

Deed only on 31 May 2010. Thus as on the date of the

Application on 22 January 2010 and on the date of the drawal of

a lottery on 18 May 2010 the Second Respondent was ineligible

as her spouse had residential premises on ownership basis. He

drew our attention to documents annexed to the Petition as also

the submissions made by the Officers of the MHADA and the

orders passed.

9. Counsel appearing on behalf of the Second Respondent

submitted that the Agreement to Sell was executed on 18

7 / 15 WP/ 2546/2012

November 2009. Prior thereto, a Leave and Licence was

executed on 7 August 2008 whereunder the Second Respondent

acquired the premises of Flat No.187 and the said agreement was

renewed on 7 August 2009. The Agreement to Sell dated 18

November 2009 was registered on 31 May 2010 and on the same

day the Sale Deed was executed. Thus, the Second Respondent

or her husband does not have, it is urged, residential premises on

ownership basis. The Second respondent, it is urged, is eligible

for applying and is also entitled to the allotment of a flat.

10. Counsel appearing on behalf of the Third respondent

submitted that on the basis of a complaint made by the

Petitioner, MHADA issued a show cause notice. The Third

Respondent has given reply along with supporting documents

and since the competent authority is seized of those

proceedings, no interference is called for.

11. Counsel appearing on behalf of the First Respondent

supported the decision taken by MHADA insofar as the Second

Respondent is concerned. He submitted that the spouse of the

Second Respondent had agreed to sell the residential premises

on 18 November 2009 and a Sale Deed was executed on 31 May

2010. The Appellate Authority, it is urged, rightly came to the

conclusion that the transaction of the Agreement to Sell was

entered into prior to the publication of an advertisement inviting

8 / 15 WP/ 2546/2012

applications for allotment of flats and, therefore, the Second

Respondent was eligible for applying for allotment of a flat.

Insofar as the Third Respondent is concerned, he submitted that

the authorities of MHADA will take an appropriate decision on the

show cause notice.

12. We have considered the rival submissions made by the

learned counsel appearing for the parties. We have also perused

the material on record.

13. The application dated 22 January 2010 made by the Second

Respondent shows that at Sr.No.5 while dealing with the present

residential address along with Pin Code, the Second Respondent

had mentioned her address as under :

"KUMAR SADAN 'D' WING ROOM NO.-17

3RD FLR, NEW HALL ROAD, KURLA, WEST.

DISTRICT MUMBAI, PIN 400070."

Sr.No.20 deals with details about the present accommodation

and the response reads as under:

"20. Details about present accommodation:

I.Whether rental or on ownership basis - OWNERSHIP II.In whose name the tenancy or

ownership stands. -ABBAS ALI SADRIWALA"

On that application the Legal Advisor of MHADA observed that

the application made by the Second Respondent was liable to be

dismissed. The Legal Advisor also considered the Agreement to

9 / 15 WP/ 2546/2012

Sell purportedly executed on 18 November 2009 which is not

registered but is only notarized. By virtue of the Agreement to

Sell, ownership was not transferred and therefore at the time of

the application the spouse of the Second Respondent owned a

tenement in the area of the municipal Corporation.

14. Pursuant thereto, a communication dated 21 July 2010 was

addressed to the Second Respondent informing her that on a

scrutiny of her application she was found to be ineligible on the

ground that her husband owns residential premises within the

municipal limits of the Corporation. Clauses 4 and 5 of the

Agreement to Sell dated 18 November 2009 read as under:

"4. It is agreed that after clearing of the above said cheques (details given in receipt column) the Vendor undertake to return/refund Rs.50,000/- of advance/token to

the purchasers.

5. That the Vendor handed over the actual, physical possession of said premises along with all the documents to the Purchaser, permanently/forever within 7 months after clear the cheque payment".

Though Clause 4 provided that details of the cheques will be

given in the receipt, the receipt attached to the Agreement to

Sell does not give any such details.

15. Clause 5 of the Agreement to Sell shows that the vendor

(i.e.the spouse of the Second Respondent) was to hand over

actual physical possession of the said premises along with all the

10 / 15 WP/ 2546/2012

documents to the purchaser within seven months after the

cheques were cleared. The details of payment mentioned in

paragraph 5 of the affidavit show that the cheques were issued

between 6 May 2010 and 26 May 2010. Thus on the date of the

application (22 January 2010) as also on 18 May 2010 the entire

consideration was not received by the spouse of the Second

Respondent and consequently there was no question of handing

over possession of the flat to the purchaser. It is also not in

dispute that the Agreement to Sell dated 18 November 2009 was

registered on 31 May 2010 and the Sale Deed was also executed

on the same date. In other words, the husband of the Second

Respondent was divested of his right, title and interest only on

and after 31 May 2010. Thus when the application was

submitted on 22 January 2010 and even on the date of the

drawal of lottery on 18 May 2010, the Second Respondent was

ineligible for applying for allotment of a flat.

16. In exercise of the powers conferred by the Maharashtra

Housing and Area Development Act, 1976 and of Rule 17 of the

Maharashtra Housing and Area Development (Disposal of Land)

Rules, 1981, MHADA with the previous sanction of the

Government of Maharashtra has made Regulations, namely the

Maharashtra Housing and Area Development (Estate,

Management, Sale, Transfer and Exchange of Tenements)

11 / 15 WP/ 2546/2012

Regulations, 1981 (" the Regulations"). Regulation 7 provides for

issuing a notice inviting applications for allotment of tenements

and lays down that the said notice shall specify, among other

things, such terms and conditions of allotment as may be

decided by the Chief Officer. Regulation 9(1)(A) reads as under:

"A person shall not be eligible to apply for any tenement in municipal area if he or his/her spouse or his/her minor

children own a house or a flat or a residential plot of land or holds on a hire-purchase basis or outright sale basis or on a rental basis form the Maharashtra Housing and Area

Development Authority a house or a flat or a residential plot of land in his/her name or in the name of his/her minor children as the case may be, in such a municipal area."

The above provision shows that a person shall not be eligible to

apply for any tenement in a municipal area if his/her spouse or

his/her minor children own a house or a flat or a residential plot

of land. Clause 1.2 of the Information Booklet reads as under :

"1.2 The applicant or her husband or his wife or their minor

children should not have any residential room premises or any

residential plots of lands in his/her/their name/names, which

is/are acquired privately by her/him/them and which is falling

within the boundaries/jurisdiction of the Municipal corporation of

Greater Mumbai area authority.

12 / 15 WP/ 2546/2012

And in similar way the applicant or her husband or his wife or their children of minor age (below 18 years) should not

have any residential room premises or any residential plots in his/her/their names which is/are being allotted to him/her/them by the MHADA authority on Rental

basis/lease basis or the above said applicant or her husband or his wife should not be a member of any registered cooperative Housing Society, which is lying and being situated on the plot of land property, of the MHADA authority at the time date of making application by the

interested buyers to the MHADA authority."

17. In view of Regulation 9(1)(A) read with clause 1.2 of the

Information Booklet, we are more than satisfied that the Second

Respondent was not eligible to apply for allotment of a flat in

Scheme Code No.238 of the MHADA Lottery Scheme 2010.

18. It would also be instructive to refer to the details of the

cheque payments made to the husband of the Second

Respondent. The details are as under:

     Sr.No. Mode of payment    Drawn on            Amount
            Cheque No. Date
    1.    171414     06.5.2010 H.D.F.C.            2,00,000/-





    2.    171415      26.5.2010 H.D.F.C.               50,000/-

    3.    171431      06.5.2010 H.D.F.C.              2,00,000/-

    4.    171432      26.5.2010 H.D.F.C.               50,000/-





    5.    232001      16.5.2010 Bombay M.C            1,50,000/-

    6.    232004      26.5.2010 Bombay M.C            2,00,000/-

    7.    232025      06.5.2010 Bombay M.C            1,00,000/-

    8.    232026      16.5.2010 Bombay M.C.           1,50,000/-





                                  13 / 15                   WP/ 2546/2012

    9.    232027      26.5.2010 Bombay M.C.        2,00,000/-




                                                                          

19. A perusal of cheque numbers and dates makes interesting

reading. For example, cheque no. 171415 was purportedly issued

on 26.5.2010 and cheque no.171431 was purportedly issued on

6.5.2010. A cheque bearing an earlier serial number was issued

on a subsequent date and a cheque of a subsequent serial

number was issued earlier in point of time. Likewise, cheque

no.232004 was purportedly issued on 26.5.2010 and cheque

no.232025 was issued on 6.5.2010. We are, therefore, clearly of

the opinion that the Second Respondent was not eligible even to

apply for allotment of a flat. The husband of the Second

Respondent was the owner of residential premises within the

municipal limits of Corporation as on the date of the application

as also when the lottery was drawn on 18 May 2010. The

allotment of a flat made in favour of the Second Respondent is

therefore liable to be cancelled.

20. Insofar as the case of the Third Respondent is concerned,

we direct that the First Respondent shall issue a show cause

notice to the Third Respondent, if not already issued, and after

hearing all the concerned parties including the Petitioner and the

Third Respondent shall pass appropriate orders in accordance

with law within a period of three months from the production of

14 / 15 WP/ 2546/2012

an authenticated copy of this order. We keep all contentions of

the parties open as regards the Third Respondent.

21. In the light of the aforesaid discussion, the Petition is

disposed of in the following terms:

(i) The allotment made in favour of the Second Respondent is

hereby cancelled and the amount paid by the Second

Respondent shall be refunded within fifteen days of an

application being made by the Second Respondent;

(ii) The First Respondent - MHADA is directed to issue a show

cause notice issued to the Third Respondent (if not already

issued) and after hearing all the concerned parties including the

Petitioner and the Third Respondent to pass appropriate orders in

accordance with law within a period of three months from the

production of an authenticated copy of this order;

(iii) In view of the cancellation of the allotment of the flat

allotted to the Second Respondent, the authorities of MHADA

shall proceed to allot the said flat in accordance with law.

(iv) Rule is partly made absolute in the aforesaid terms. There

shall, however, be no order as to costs.

22. On the declaration of the judgment, learned Counsel

appearing on behalf of the Second Respondent prays for stay of

the operation of the judgment and order in order to enable the

15 / 15 WP/ 2546/2012

Second Respondent to seek recourse to the remedies in appeal.

The directions contained in sub paras (i) and (iii) of Para 21 of the

order are stayed for a period of eight weeks from today subject to

the Second Respondent filing an undertaking before this Court

within a period of one week from today not to create any third

party rights in respect of the premises.

                                          
                                               (Dr.D.Y.Chandrachud,j.)

                            ig                         (R.G.Ketkar, J.)