Bombay High Court
Maple Tie-Up Pvt. Ltd vs Dr. Ashok Trivikram Wagle And Ors on 7 April, 2016
Bench: R.M. Savant
Judg. in WP-957-14 dt. 07.04.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.957 OF 2014
Dr. Ashok Trivikram Wagle ]
Vithal Bhavan, 25 Turner Road, ]
Bandra (West), Mumbai-400 050 ].. Petitioner
Versus
1. Estate Manager-5,
Mumbai H. & A. Board,
ig ]
]
Griha Nirman Bhavan, Bandra (East), ]
Mumbai-400 051. ]
2. M/s. U. S. Roofs Ltd. ]
15/116, J. K. Chambers, ]
Vashi, Sector-17, ]
Navi Mumbai-400 705. ]
3. M/s. Maple Tie-up Pvt. Ltd. ]
Uttar Bhartiya Seva Sangh ]
Behind Teacher's Colony, ]
Bandra (East), Mumbai-400 051. ]
Shubham Centre ]
B-Wing, 5th Floor, 506, ]
Cardinal Gracias Road, ]
Chakala, Andheri (East), ]
Mumbai-400 099 ].. Respondents
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WITH
CIVIL APPLICATION NO.3260 OF 2015
IN
WRIT PETITION NO.957 OF 2014
M/s. Maple Tie-up Pvt. Ltd. ]
Uttar Bhartiya Seva Sangh ]
Behind Teacher's Colony, ]
Bandra (East), Mumbai-400 051. ].. Applicant
Versus
1. Dr. Ashok Trivikram Wagle ]
2nd Floor, Vithal Bhavan, 25, Turner Road, ]
Bandra (West), Mumbai-400 050. ]
2. Estate Manager 5, ]
Mumbai Housing & A.D. Board, ]
1st Floor, Griha Nirman Bhavan. ]
3. M/s. U. S. Roofs Ltd. ]
208/209, Persipolis Sector 17, ]
Vashi, Navi Mumbai-400 705. ].. Respondents
Mr. Y. S. Jahagirdar, Senior Advocate a/w Mr. S. S. Kanetkar, for the
Petitioner.
Mr. P. G. Lad, for the Respondent No.1.
Mr. D. S. Mhaispurkar, for the Respondent No.2.
Mr. P. K. Samdani, Senior Advocate i/by Maniar Srivastava Associates,
for the Respondent No.3.
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Judg. in WP-957-14 dt. 07.04.2016.doc
CORAM : R.M. SAVANT, J.
JUDGMENT RESERVED ON : 30th MARCH 2016
JUDGMENT PRONOUNCED ON : 7th APRIL 2016
ORAL JUDGMENT
1. Rule, with the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2.
The writ jurisdiction of this Court is invoked against the order
dated 08.10.2013 passed by the Appellate Officer, Maharashtra Housing
and Area Development Authority (For short "MHADA) in Appeal No.8 of
2013. By the said order, the order dated 04.06.2013 passed by the
Competent Authority, MHADA evicting the Petitioner came to be
confirmed.
3. The factual matrix involved in the above Petition can be
stated thus :-
The subject matter of the above Petition and the proceedings
before the Authorities below are premises being Office Building No.4
having ground floor structure admeasuring 991 sq.ft. at Gandhi Nagar,
Bandra (East) (MHADA Colony) with appurtenant land admeasuring
365.85 sq.mtrs. in a settlement of MHADA. The said premises were rented
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out to the Petitioner who at the relevant time was practicing as a doctor
for the purpose of dispensary and residence in the year 1960. In terms of
the policy then prevailing, the MHADA offered the said premises on
ownership basis to the Petitioner. The said offer of MHADA was accepted
and a Sale Deed was executed between the MHADA and the Petitioner in
respect of the structure which Sale Deed is dated 30.09.1993. On the same
day i.e. on 30.09.1993, a Lease Deed was also executed between the
MHADA and the Petitioner in respect of the land beneath the structure,
which was leased for a period of 90 years beginning from 01.04.1980.
After the said Lease Deed was executed, a Rectification Deed came to be
executed between the parties. The Rectification Deed was in respect of the
date of commencement of Lease Deed which was changed from
"01.04.1980" to "15.06.1992". The user was also changed from
"Dispensary-cum-Residence" to "Legal Purpose" vide the change effected
in clause (d) of the said Lease Deed. A reference to the relevant clauses of
the Lease Deed would be made in the later part of this judgment. It seems
that in the year 2001, more precisely on 06.04.2001 the MHADA
communicated to the Petitioner the revised sale price as also the revised
lease rent and demanded the same from the Petitioner with retrospective
effect. It seems that the petitioner approached the District Consumer
Forum against the said demand by filing proceedings before it. Before the
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District Consumer Forum, the MHADA withdrew the letter dated
06.04.2001 resulting in the said complaint being turned infructuous.
However the District Consumer Forum awarded costs of Rs.50,000/- to the
Petitioner by order dated 12.10.2007. The said order dated 12.10.2007
passed by the District Consumer Forum was challenged both by the
Petitioner and MHADA by approaching the State Commission by filing
separate Appeals. The said Appeals were dismissed by the State
Commission. The MHADA thereafter carried the matter to the National
Consumer Disputes Redressal Commission. The National Consumer
Disputes Redressal Commission by the judgment and order dated
08.05.2009 dismissed the Appeal filed by the MHADA. The MHADA
thereafter filed SLP in the Apex Court. The said SLP being SLP(Civil)
No.23781 of 2009 was dismissed by the Apex Court by order dated
08.10.2010. It seems that thereafter in the deluge that took place in
Mumbai in July 2005 the structure in question of the Petitioner was
severely damaged and it is the case of the Petitioner that it was very
difficult to restore the same. The Petitioner therefore on 02.08.2005
applied to the MHADA for being granted a 'No Objection' for transfer of
the premises. The Petitioner thereafter addressed a reminder dated
18.08.2005 seeking the said 'No Objection'. The Petitioner ultimately
executed a Deed of Assignment dated 02.12.2005 in favour of the
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Respondent No.2 and the consideration mentioned therein is
Rs.1,20,00,000/-. The Respondent No.2 on 24.12.2010 executed a further
Deed of Assignment in favour of the Respondent No.3 for the
consideration mentioned therein which was Rs.3,35,00,000/- (Rupees
Three Crores Thirty Five Lakhs only). The Respondent No.3 thereafter
made an application to MHADA for regularization on 01.03.2011. This
prompted the proceedings to be initiated against the Petitioner under
Section 66 of the Maharashtra Housing and Area Development Act, 1976
(For short "the Mhada Act"). The said eviction proceedings were preceded
by the notice dated 24.01.2012 being issued to the Petitioner for breach of
clauses 2(j) and 2(m) of the Lease Deed executed between the Petitioner
and MHADA. The said notice was followed by a Charge Sheet dated
24.01.2012 issued by the Competent Authority of the MHADA. The
gravamen of the allegation against the Petitioner was that the Petitioner
was under a contractual obligation not to sell, create third party rights and
transfer his interest in the lease without the prior permission of the
MHADA. However, the said condition has been breached by the Petitioner
by transferring his leasehold rights to the Respondent No.2 who has
further sold out its rights to the Respondent No.3. The conduct of the
Petitioner in creating third party interest by transferring his interest in the
land was in contravention of the terms and conditions under which he was
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allowed to occupy the premises. The Petitioner therefore was called upon
to show-cause in respect of the allegations levelled against him. The
Petitioner by his reply dated 20.04.2012 to the Charge Sheet raised a
preliminary issue as regards the maintainability of the eviction
proceedings. The Competent Authority recorded the evidence of the
parties. The Competent Authority by its order dated 04.06.2013 allowed
the eviction proceedings and thereby confirmed the notice issued to the
Petitioner alleging breach of clauses 2(j) and 2(m) of the Lease Deed
executed by and between the Petitioner and the MHADA. The Competent
Authority in the light of the fact that the Respondent No.3 was in
possession, directed the Estate Manager to consider the application of the
Respondent No.3 for regularization of the suit premises.
4. Against the order dated 04.06.2013 passed by the Competent
Authority, MHADA, the Petitioner filed an Appeal before the Appellate
Officer of the MHADA. The said Appeal was numbered as Appeal No.8 of
2013. The Appellate Officer has by the impugned order dated 08.10.2013
dismissed the Appeal. The Appellate Officer has thereby confirmed the
finding recorded by the Competent Authority of the breach and
contravention of clauses 2(j) and 2(m) of the Lease Deed, in the light of
the fact that the Petitioner has transferred his leasehold interest in the
land in question to the Respondent No.2 without prior permission of the
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MHADA. As indicated above, it is the said order dated 08.10.2013 which is
taken exception to by way of the above Petition.
5. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL MR.
Y. S. JAHAGIRDAR FOR THE PETITIONER :-
A) That the Petitioner had become owner of the structure in question
by virtue of the Sale Deed executed in his favour and therefore he could
not be ousted from the structure in question by relying upon clauses 2(j)
and 2(m) of the Lease Deed which were in respect of the land.
B) That the provisions of Section 66 of the Mhada Act could not be
invoked as the structure being of the ownership of the Petitioner was not
"Authority Premises" within the meaning of the said Act.
C) That having regard to the definition of the Authority Premises as
posited in Section 2(4) of the Mhada Act, the premises in question do not
qualify to be the "Authority Premises" and therefore the proceedings
initiated under Section 66 of the Mhada Act against the Petitioner are
without jurisdiction. In support of the said contention reliance is placed by
the Learned Senior Counsel on two judgments of a Learned Single Judge
of this Court in the matter of Jiwan Nath Razdan Vs. The State of
Maharashtra and others 1 and Nirmala Dhondiram Kadam Vs.
1 1990(3) Bom.C.R. 306
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Shatrughana Padave and others 2.
D) That both the Competent Authority and the Appellate Authority had
erred in coming to a conclusion that if the eviction order is not passed
against the Petitioner, the same would prejudice the Respondent No.3.
6. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.3 BY
THE LEARNED SENIOR COUNSEL MR. P. K. SAMDANI :-
A)
That having regard to the definition of the "Authority Premises" in
Section 2(4) and having regard to the definition of the "premises" as given
in Section 2(27) that the premises in question i.e. land beneath structure
is an "Authority Premises" and therefore the provisions of Section 66 of the
Mhada Act apply.
B) That having regard to the directions issued in the order passed by
the Competent Authority as also confirmed by the Appellate Authority and
having regard to the fact that the Petitioner has divested his rights in
favour of the Respondent No.2 who in turn has created rights in favour of
the Respondent No.3, the Petitioner cannot be said to be a person
aggrieved by the order passed by the Competent Authority as confirmed
by the Appellate Authority so as to lay a challenge to the same by way of
the above Petition.
2 1984 Mh.L.J. 244
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C) That since the structure of which the Petitioner claims to be the
owner is situated on the land which is undisputedly leased to the
Petitioner vide Lease Deed dated 30.09.1993. The Petitioner was bound by
the terms of the said Lease Deed and therefore the Petitioner cannot be
heard to say that the Petitioner cannot be ousted on the allegation of the
breach of the said terms and conditions of the said lease.
D) That assuming there is some merit in the legal contention urged on
behalf of the Petitioner as regards whether the premises are "Authority
Premises", this Court in the facts of the present case would have to see
whether any relief can be granted to the Petitioner in the above Writ
Petition having regard to the fact that the Petitioner has divested himself
of all his rights on account of the Deed of Assignment executed in favour
of the Respondent No.2.
E) That the Petitioner is not entitled to any reliefs in the above Petition
as the justice is not on his side which is a sine-qua-non for grant of any
reliefs in the writ jurisdiction of this Court. Reliance is placed on the
judgments of the Division Bench as well as the Apex Court in the matter of
The State of Bombay Vs. Morarji Cooverji 3, M. P. Mittal Vs. State of
Haryana and others 4 and State of Maharashtra and others Vs. Prabhu
3 Bom. LR. 1958 (Vol. LXI) 318
4 (1984) 4 SCC 371
5 (1994) 2 SCC 481
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CONSIDERATION
7. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The question that arises for consideration
in the above Petition is whether the proceedings under Section 66 of the
Mhada Act could have been initiated against the Petitioner. In the said
context, the antecedent facts would have to be revisited. The premises in
question in the instant case are both land and structure thereon. The
structure in question was a ground floor structure admeasuring 991 sq.ft.
with appurtenant land admeasuring 365.85 sq. mtrs. The said premises
were allotted to the Petitioner by MHADA on rent basis. Then as per the
policy of MHADA, an offer was made to the Petitioner by MHADA for sale
of the structure in question on ownership basis, and the land in question
was offered on lease basis. The said offer was accepted by the Petitioner
and Sale Deed dated 30.09.1993 came to be executed in favour of the
Petitioner in respect of the structure. On the same day i.e. on 30.09.1993 a
Lease Deed was also executed in favour of the Petitioner granting lease of
the land beneath the structure to the Petitioner for 90 years. By a
Rectification Deed, the date of the commencement of the lease was
changed from 01.04.1980 to 15.06.1992. In the context of the present
controversy, clauses 2(j) and 2(m) of the Lease Deed are relevant and are
reproduced hereinunder for the sake of ready reference :-
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"2(j) Not to assign, sublet, underlet or other wise transfer
in any other manner whatsoever including parting with the
possession of the whole or any part of the said land or its
interest there under or benefit of this lease to any person or
persons or change the user of the said land or any part
thereof without the previous written permission of the
Authority;"
"2(m) not to make excavation upon any part of the said
land without the previous consent of the Authority in
writing first had and obtained for any additional
construction or for utilising unused F.S.I. for which the
Lessee shall have to pay additional premium plus additional
lease rent as may be decided by the Authority except for
the purpose of repairing or rebuilding the existing structure
standing on the said land;"
8. It is required to be noted that the Petitioner had applied to the
MHADA on 02.08.2005 for a "No Objection" to be granted for transfer of
the premises. The Petitioner thereafter also addressed a reminder dated
18.08.2005 to the MHADA. However, it seems that the Petitioner did not
receive any reply to the said communications. The Petitioner thereafter
executed a Deed of Assignment dated 02.12.2005 in favour of the
Respondent No.2 i.e. M/s. U. S. Roofs Ltd. Clauses (2) and (3) of the said
Deed of Assignment are also relevant and are reproduced hereinunder for
the sake of ready reference.
"2. The Assignor do hereby sell, transfer & assign in
favour of the Assignees and the Assignees do hereby agree
to accept from the Assignor the assignment in respect of
land bearing Survey no.341(Pt) and City Survey no.630
situated at Gandhi Nagar Bandra (East) Mumbai 400 051
admeasuring 361.85 sq. meters (hereinafter referred to as
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the said property) and more particularly described in the
Schedule hereunder written with an absolute right, to
consume the entire FSI that may be available in respect of
the said property as well as the TDR/Layout FSI/ titbits,
Recreation Ground (R.G.) etc that may be permitted by the
Authority to be utilized on the said property."
"3. In consideration of the Assignees agreeing to pay to
the Assignor an agreed Monetary Consideration of
Rs.1,20,00,000/-(Rupees One Crore Twenty lacks only) the
Assignor herein hereby agree grant, assign, and assure unto
in favour of the Assignees or their nominees and the
Assignees has agreed to acquire from the Assignor, (i)
assignment and transfer of all the rights, title, interest of
the Assignor in respect of the said property more
particularly described in the Schedule hereunder written
and (ii) absolute and exclusive right to use, utilize,
consume and exploit full right of benefit of T.D.R./Layout
FSI/titbits, Recreation Ground (R.G.) whatever name called
in all forms including of D.P. Road set back, garden, slums,
etc., for construction of building is to be constructed on the
said property (all the said property and the right to use,
utilize, consume and exploit the benefit of T.D.R. Are
hereinafter referred to as for brevity's sake hereinafter
referred to as the said property") free from all
encumbrances, claims and demands. The Term FSI and
TDR Layout FSI/titbits, Recreation Ground (R.G.) shall
mean & include all subsidized/Free areas such as Balcony
& Staircase area etc. The Assignee has on or before the
execution of this Agreement paid to the Assignor the entire
consideration of Rs.1,20,00,000/- (Rupees One Crore
Twenty lacs only) (the receipt whereof the Assignor doth
hereby admit and acknowledge & release, acquit &
discharge the Assignees from the payment & receipt thereof
& every part thereof.)"
(emphasis supplied)
9. By the said Deed of Assignment, the Petitioner has thereby
sold, transferred and assigned all his rights in respect of the said land in
question which included the utilization of the FSI as well as loading of
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TDR as may be permitted by the MHADA. The consideration mentioned in
the Deed of Assignment is Rs.1,20,00,000/- (Rupees One Crore Twenty
Lacs only) which has been admittedly received by the Petitioner for which
he has issued a receipt. The said Deed of Assignment has been executed by
the Petitioner without the permission of the MHADA as the Petitioner in
the above Petition has averred that he proceeded on the basis that he has a
deemed permission to effect the transfer.
It is an undisputed position that the Respondent No.2 M/s. U.
S. Roofs Ltd. has thereafter transferred its rights to the Respondent No.3
herein M/s. Maple Tie-up Pvt. Ltd. It is the Respondent No.3 which is now
in possession of the premises in question and who has demolished the
structure and has put up the tin sheets around the land as a compound
wall.
10. In view of the transfer effected by the Petitioner a Charge
Sheet and notice came to be issued to the Petitioner which were both
dated 24.01.2012. The said Charge Sheet was issued for breach of clauses
2(j) and 2(m) of the Lease Deed dated 30.09.1993. The Charge Sheet is
founded on the fact that the Petitioner having transferred the premises in
question to the Respondent No.2 without the permission of the MHADA
and the Respondent No.2 having further transferred the premises in favour
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of the Respondent No.3. The Charge Sheet also alleges excavation being
carried out by the Respondent No.3 without the permission of MHADA. As
indicated above, the Charge Sheet was the precursor to the proceedings
initiated against the Petitioner under Section 66 of the Mhada Act which is
culminated in the order dated 04.06.2013 passed by the Competent
Authority and which order has been confirmed by the Appellate Authority
by the impugned order dated 08.10.2013.
11.
Since the invocation of Section 66 of the Mhada Act to evict
the Petitioner is questioned, it would be necessary to address the said issue
as the same goes to the root of the matter. A reading of Section 66 of the
Mhada Act discloses that the same can be invoked only when the premises
are "Authority Premises". It would therefore be relevant to reproduce
Section 66, Section 2(4) and Section 2(27) of the Mhada Act which are
the relevant provisions for the sake of ready reference :-
"Section 66: Power to evict certain persons from
Authority Premises.
(1) If the Competent Authority is satisfied-
(a) that the person authorised to occupy any Authority
premises has-
(i) not paid rent or compensation or amount lawfully due
from him in respect of such premises for a period of more
than two months, or
(ii) sub-let, without the previous permission of the
Authority, the whole or any part of such premises, or
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(iii) committed, or is committing any act which is
destructive or permanently injurious to such premises, or
(iv) made, or is making, material addition to, or alteration
in, such premises without the previous permission of the
Authority, or
(v) otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to occupy
such premises, or
(vi) failed to vacate the premises required by the Authority
for the purpose of implementing any plan or project for the
sale of tenements and to accept the alternative
accommodation offered by the Authority;
(b) that any person is an unauthorised occupation of any
Authority Premises, the Competent Authority may, for
reasons to be recorded in writing, by notice served (i) by
post, or (ii) by affixing a copy of it on the outer door or
some other conspicuous part of such premises, or (iii) in
such other manner as may be prescribed, order that person,
as well as any other person, who may be in occupation of
the whole or any part of the premises, to vacate the
premises in unauthorised occupation, within 24 hours of
the date of service of notice, and in any other case within a
period of seven days of the date of such service.
(2) Before an order under sub-section (1) is made against
any person, the Competent Authority shall issue, in manner
hereinafter provided, a notice in writing calling upon all
persons concerned to show cause within ten days why an
order of eviction should not be made.
The notice shall-
(a) specify the grounds on which the order of eviction is
proposed to be made; and
(b) require all persons concerned, that is to say, all persons
who are or may be in occupation of, or claim interest in,
the Authority premises, to show cause against the proposed
order, on or before such date as is specified in the notice.
If such persons makes an application to the Competent
Authority for the extension of the period specified in the
notice, such Authority may grant the same on deposit of
one hundred rupees and on such terms as to payment and
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recovery of the amount claimed in the notice, as such
Authority thinks fit.
Any written-statement put in by any person and documents
produced in pursuance of the notice, shall be filed with the
record of the case, and such person shall be entitled to
appear before the Competent Authority by advocate,
attorney or other legal practitioner.
The notice to be served under this sub-section shall be
served in the manner provided for the service of a notice
under sub-section (1); and thereupon, the notice shall be
deemed to have been duly given to all persons concerned.
(3) If any persons refuses or fails to comply with an order
made under sub-section (1), the Competent Authority may
evict that person and any other persons who obstructs him
and takes possession of the premises, and may for that
purpose use such force as may be necessary.
(4) The Competent Authority may, after giving ten clear
days notice to the person from whom possession of the
Authority premises has been taken under sub-section (3),
and after publishing such notice in the prescribed manner,
remove or cause to be removed or disposed of by public
auction, any property remaining on such premises. Such
notice shall be served in the manner provided for the
service of a notice under sub-section (1).
(5) Where the property is sold under sub-section (4), the
sale proceeds shall, after deducing the expenses of sale, be
paid to such person or persons as may appear to the
Competent Authority to be entitled to the same.
Provided that, the Competent Authority is unable to decide
as to the person or persons to whom the balance of the
amount is payable or as to the apportionment of the same,
he shall refer such dispute to a civil court of competent
jurisdiction, and the decision of the court thereon shall be
final.
(6) If a person, where who has been ordered to vacate any
premises under sub-clause (i) or (v) of clause (a) of sub-
section (1), within seven days of the date of service of the
notice, pays to the Authority the rents or compensation or
amount in arrears or carries out or otherwise complies with
the term contravened by him to the satisfaction of the
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Competent Authority, such Authority shall, on such terms, if
any (including the payment of any sum by way of damages
or compensation for the contravention aforesaid), in lieu of
evicting such person under sub-section (3) cancel his order
made under sub-section (1) and thereupon, such person
shall continue to hold the premises on the same terms on
which he held them immediately before such notice was
served on him:
Provided that, if a person authorised to occupy the
Authority premises fails to pay the arrears of rent,
compensation or amount for three times within a period of
two consecutive years, he shall be liable to be evicted under
the provisions of this section.
Explanation I. - For the purpose of this Chapter, the
expression 'unauthorised occupation' in relation to any
person authorised to occupy any Authority premises
includes the continuance of occupation by him or by any
person claiming through or under him of the premises after
the authority under which he was allowed to occupy the
premises has expired or has been duly determined.
Explanation II. - For the purpose of this Chapter, to the
term rent, compensation or amount includes any payment
to be made by a person in respect of any premises taken by
him from the Authority under hire- purchase agreement
and also any penalty [imposed such rate as may be
prescribed] for the default in the payment of rent,
compensation or amount. The amount of such penalty shall
not exceed 10 per cent of such rent, compensation or
amount.
(7) Notwithstanding anything contained in this Chapter
including this Section, if any person fails to vacate the
premises required by the Board for the purpose of
demolition of building containing such premises which are
unfit for human habitation then, the Board may require the
occupants thereof to vacate the premises within 24 hours of
the date of service of the notice; and at the same time allot
them alternative accommodation in any building of the
Authority at such place as it thinks fit. The accommodation
may not be in the same locality or of the same floor area as
the premises vacated by the occupiers. If any occupier fails
to accept and occupy the alternative accommodation
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allotted to him within the time specified by the Board the
responsibility of the Board to provide him with any
alternative accommodation shall cease. Such occupier shall,
have a right to re-occupy his premise in the building if a
building is re-erected on the land on which the demolished
building stood.
(8) Where an occupier does not vacate his premises, the
Board may take or cause to be taken such steps and use or
cause to be used such force as may be reasonably necessary
for the purpose of getting the premises vacated.
(9) The decision of the Board under sub-sections (7) and
(8) shall be final and conclusive and shall not be called in
question in any Court nor any injunction against the order
of demolition or vacation of the premises shall be made by
any court."
"2. Definitions
(1)...................
(2)...................
(3)...................
(4) "Authority premises" means any premises
belonging to, or vesting in the Authority, or taken on lease
by the Authority, or entrusted to, or placed at the disposal
of, the Authority for management and use for the purposes
of this Act;"
Explanation- In this clause "Authority premises" includes
any premises taken by persons from the Authority under
hire purchase agreement, during the period any payments
are to be made by such person to the Authority under such
agreement or until such agreement is duly terminated;
"2(27) "premises" means any land or building, or part of a
building whether authorised or otherwise, and includes-
(a) gardens, grounds and out-houses, if any,
appertaining to such building or part of a building;
(b) any fitting affixed to such building or part of a
building for the more beneficial enjoyment thereof; and
(c) building or a part of building let or intended to be
let or occupied separately;"
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12. A reading of Section 2(4) of the Mhada Act would disclose
that any premises belonging to or vesting in the authority comes within
the definition of authority "Premises" have been separately defined in
Section 2(27) which definition includes any land or building. The
definition further stipulates who is included in the said definition. Hence a
conjoint reading of Section 2(4) and 2(27) would indicate that the
definition of "Authority Premises" is an inclusive definition and in so far as
the instant case is concerned wherein admittedly the land is granted on
lease on the terms and conditions mentioned therein, the same leaves no
room for doubt that the premises in question are "Authority Premises"
within the meaning of the Mhada Act.
13. It is not possible to accept the contention urged on behalf of
the Learned Senior Counsel Mr. Y. S. Jahagirdar appearing on behalf of the
Petitioner since the structure is of the ownership of the Petitioner, the
structure would therefore not be covered by the definition of the
"Authority Premises" as postulated in the Mhada Act and therefore the
provisions of Section 66 of the Mhada Act could not have been invoked. In
the instant case, though the structure can be said to be of the ownership of
the Petitioner, the land on which the structure is situated is a land granted
on lease to the Petitioner by the MHADA. The structure obviously
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therefore cannot be divorced from the land on which it is situated. It is
also required to be noted that the rights regarding FSI or loading of TDR
flow from the land and not the structure. The Petitioner having admittedly
transferred his rights in the land to the Respondent No.2 for consideration
without the permission of MHADA, the breach of clauses 2(j) and 2(m)
was complete and the MHADA was therefore entitled to invoke Section 66
of the Mhada Act to evict the Petitioner from the premises in question.
14.
Now coming to the judgments (supra) cited on behalf of the
Petitioner by the Learned Senior Counsel Mr. Y. S. Jahagirdar, in Jiwan
Nath Razdan's case (supra), the premises in question being a flat was
taken on hire purchase basis by the person who had put the Petitioner i.e.
Jiwan Nath Razdan in possession. In view of the said occupation of the flat
by the Petitioner proceedings under Section 66 of the Mhada Act came to
be initiated against the original allottee and the Petitioner, an order of
eviction came to be passed by the Competent Authority both against the
original allottee and the Petitioner in the said Writ Petition. The order
passed by the Competent Authority was confirmed by the Appellate
Authority. Before the Learned Single Judge of this Court, the invocation of
Section 66 of the Mhada Act was sought to be questioned on behalf of the
Petitioner on the ground that since the amount towards the Hire Purchase
Agreement was paid up, the premises are no more "Authority Premises"
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within the meaning of Section 2(4) of the Mhada Act and therefore the
orders of eviction could not have been passed. The said contention was
rejected by the Learned Single Judge by holding that the premises would
not cease to be "Authority Premises" merely on making payments with
regard to the Hire Purchase Agreement, but the same will have to be
properly conveyed to the society comprising of the flat purchasers. The
judgment in Jiwan Nath Razdan's case (supra) is sought to be relied upon
to contend that since the Petitioner is the owner of the structure in
question, the provisions of Section 66 of the Mhada Act could not have
been invoked.
In so far as the judgment in Nirmala Dhondiram Kadam's case
(supra) is concerned, the said judgment concerns the bar as contained in
Section 71 of the Mhada Act. It has been held in the said judgment that
the bar would apply to entertaining any suit or proceedings for eviction of
any person by any Court if the Competent Authority under the said Act is
entitled to evict the person under the provisions of the said Act. It has
further been held that the Competent Authority cannot adjudicate the
dispute between two private persons who lay a claim to the property.
15. In my view, the aforesaid judgments (supra) do not further
the case of the Petitioner in any manner. As indicated above, the action
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against the Petitioner under Section 66 of the Mhada Act has been
initiated for breach of clauses 2(j) and 2(m) of the Lease Deed on account
of the Deed of Assignment executed by the Petitioner in favour of the
Respondent No.2. As observed hereinabove, the structure cannot be
divorced from the land on which it vests and therefore the premises in
question are "Authority Premises" within the meaning of Section 2(4) of
the Mhada Act and therefore the invocation of Section 66 of the Mhada
Act cannot be found fault with. In so far as the present case is concerned,
the issue is as regards the eviction of the Petitioner on account of the
breach of the covenants of the Lease Deed from the premises in question.
There is no dispute between two private parties who have competing
claims and therefore the judgment in Nirmala Dhondiram Kadam's case
(supra) has no application.
16. It is required to be noted that though the Petitioner has by the
Deed of Assignment executed in favour of the Respondent No.2 has
divested himself of all his rights in respect of the premises in question as
long back as in December 2005. Notwithstanding the same, the Petitioner
has chosen to challenge the order of eviction passed against him. The
entire attempt of the Petitioner therefore appears to be to keep the issue
alive though he has now no semblance of any right in the property. The
bonafides of the Petitioner therefore are in question. Such a conduct on
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the part of a Writ Petitioner would obviously have to weigh with a Writ
Court whilst exercising the discretionary jurisdiction.
17. In the light of the submission made by the Learned Senior
Counsel Mr. P. K. Samdani on behalf of the Respondent No.3, it would
have to be seen whether the Petitioner can be said to be an "aggrieved
person" in so far as the impugned orders are concerned. In the said
context, it is required to be noted that the Petitioner has executed a Deed
of Assignment in favour of the Respondent No.2. According to the
Petitioner the said Deed of Assignment was executed by him on the
assumption that he had a deemed No Objection from MHADA for the
proposed transfer to the Respondent No.2, as he had not received any
reply to his letter dated 02.08.2005 by which he had sought the "No
Objection" from the MHADA. The Petitioner has therefore consciously
executed the Deed of Assignment in favour of the Respondent No.2 for the
consideration of Rs.1,20,00,000/-. A perusal of the said Deed of
Assignment and especially clauses (2) and (3) thereof make it absolutely
clear that the Petitioner has divested himself of all his rights in respect of
the premises in question. As indicated above, all the rights flowing from
the land, like utilization of the FSI and loading of TDR have been
transferred by the Petitioner to the Respondent No.2. The Petitioner in
view of the said execution of the Deed of Assignment cannot be said to
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have any semblance of right left in the premises in question. The
Competent Authority in its order has also held that it is the Respondent
No.3 who is in possession. In fact, it is on account of the alleged
excavation by the Respondent No.3 and putting up a compound of tin
sheets that the Charge Sheet came to be issued to the Petitioner. In the
light of the fact that the Petitioner has divested himself of all his rights in
respect of the premises in question, the Petitioner cannot be said to be
"aggrieved person" who can be said to be aggrieved by the orders passed
by the Competent Authority as confirmed by the Appellate Authority.
18. Now coming to the judgments cited (supra) by the Learned
Senior Counsel Mr. P. K. Samdani appearing for the Respondent No.3. In so
far as the Division Bench judgment of this Court in the case of The State of
Bombay (supra) is concerned, the Division Bench held that in a Writ
Petition the Petitioner has not merely to show good faith, but he has not to
suppress and has also to show that justice lies on his side.
In so far as the judgment of the Apex Court in M. P. Mittal's
case (supra), the Apex Court has held that when the writ jurisdiction of
the High Court is invoked under Article 226 of the Constitution of India, it
is open to the High Court to consider whether in the exercise of its
undoubted discretionary jurisdiction it should decline relief to such a
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Petitioner if the grant of relief would defeat the interest of justice.
In so far as the last judgment in State of Maharashtra and
others Vs. Prabhu (supra) is concerned, the Apex Court has once again in
the context of the exercise of writ jurisdiction has held that one of the
principles inherent in the exercise of writ jurisdiction is that the exercise of
power should be for the sake of justice. The Apex Court went on to
observe that if the quashing of the order results in greater harm to the
society, then the Court may restrain exercising the power.
19. Hence, the test laid down by the Apex Court for exercise of
writ jurisdiction is as to on whose side the justice is, and that power
should be exercised for the sake of furtherance of justice, applying the said
test laid down by the Apex Court in the judgments (supra) to the facts of
the present case, it would have to be held that since the Petitioner has
divested himself of all his rights in the premises in question for a
handsome consideration, hence even assuming that there is any merit in
the Petitioner's case, since justice is not on the side of the Petitioner the
exercise of writ jurisdiction is not warranted.
20. For the reasons aforestated, the challenge to the orders passed
by the Competent Authority dated 04.06.2013 as confirmed by the
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impugned order dated 08.10.2013 passed by the Appellate Authority of
the MHADA, must fail. The above Writ Petition is according dismissed.
Rule discharged with parties to bear their respective costs.
21. In view of the dismissal of the above Petition, the above Civil
Application does not survive and to accordingly stand disposed of as such.
[R. M. SAVANT, J]
After Pronouncement of the Judgment
At this stage, the Learned Senior Counsel for the Petitioner
applies for continuation of the order of status-quo. In the facts and
circumstances of the case, the said prayer is rejected.
07.04.2016 [R. M. SAVANT, J]
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