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2013 Supreme(Bom) 1754
HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Seema Santosh Jadhav & Others
Versus
Maharashtra Housing Area Development Authority
Case No : Appeal From Order (ST.) Nos.24265, 21462, 21426, 21417, 21391, 21445, 21475, 21431, 21437, 21472, 21448, 21456, 21616, 21466, 21441, 21480, 22882, 23884, 22403, 22445, 24453, 24449, 24445, 24461, 24442, 24458 24537, 24530, 24522, 24513, 24502, 24560, 24570, 24578, 24585, 24591, 24598, 24590, 24596, 24584, 21426, 21441& CAA Nos. 1148, 1149, 1150, 1151, 1152, 1153, 1154, 1155, 1156, 1157, 1158, 1159, 1160, 1161, 1162, 1163, 1164, 1165, 1166, 1167 of 2013 & CAA (ST) Nos. 21429 of 2013
Decided on: 04-09-2013
For the Appellants:Mihir Desai a/w Ms. Ushajee Peri, Indraprakash Tripathi with Narendra Dubey i/b C.K. Tripathi, Advocates.
For the Respondent:Ms. S.U. Deshmukh, Advocate.
Headnote:Maharashtra Housing & Area Development Act, 1976 - Section 95-A(3) - Order of Eviction.
Order of eviction, passed without following due procedure of law, being against principle of natural justice, fair play and equity, cannot be sustained. - The summary power so invoked in the present facts and circumstances of the case by the defendant-MHADA, even assume for granted is permissible, but unless they give full opportunity to the applicants and pass reasoned order after considering the rival submissions, the eviction order so passed so also action so initiated by invoking Section 95-A of the MHADA Act is impermissible. The Court is not there to give reason for the first time in support of the such action initiated by the authority. The Executive Engineer if is empowered and takes action by invoking this provision, the basic reason after giving opportunity to all the parties, is a must and just cannot be overlooked. No summary power can be invoked unless the rights and the conclusion is arrived at accordingly. The basic reason to justify their action to evict the person who are in occupation for long 25 years is a must.
The concept of prima facie observations in such a situation will lead to a total injustice and hardship against whom the action so initiated, specially when such summary eviction always results in displacement of their occupation/premises permanently. There is no such thing that the displacement or action is temporary and based upon prima facie observations by giving prima facie finding. Taking permanent action of eviction itself shows misuse of power, which is never permissible under the provision of law and specifically Section 95-A so sought to be invoked and utilized to evict such occupant/ person. The counsel appearing for the respondent contended that the Judge, based upon the material as well as the reply filed by the defendant and also the averments so made by the plaintiffs/appellants, comes to the conclusion and gave reasons, is unacceptable in the above background of facts and the law.
1. Rule made returnable forthwith. Heard finally, by consent of the learned Counsel appearing for the parties. The common issues, facts and the law are interlinked, therefore, this common Judgment. The common factual background
2. All these Appeals from Order are arising out of common and similar action initiated by the Defendant-Respondent-Maharashtra Housing And Area Development Authority (MHADA), invoking Section 95A(3) of Maharashtra Housing And Area Development Act 1976 (for short “MHADA Act”) and directed individual occupants/Plaintiffs in all these matters to file reply and then the Executive Engineer C-3 of MHADA unilateral orders dated 1 to 8 June 2013 passed the eviction, thereby directed all the occupants/Plaintiffs to vacate the premises, which they are in their occupation (since year 1979-1986) for more than 25 years. The Plaintiffs are also paying the monthly rent (compensatory costs) to the MHADA since long.
3. The Plaintiffs therefore filed separate Suits in the City Civil Court, Dindoshi and sought declaration that the action so initiated by the purported individual notices in respect of the respective suit premises at Old Siddharth Nagar Transit Campt, Goregaon (W)-be declared illegal, malafide and without jurisdiction. The prayer is also made for a permanent alternate accommodation as per the master list available with the Defendant. They also prayed for a permanent injunction against the Defendant restraining them, their servants, agents, officers from evicting/ dispossessing and/or taking any coercive steps based upon it. An interim injunction also sought by filing a separate Notice of Motion. The statement is made by the learned Counsel appearing for the Plaintiffs that till the decision of Notice of Motion, an ad-interim order has been in force till 31.8.2013. In the result, all the Plaintiffs/Appellants are in possession of the respective property/premises till this date.
4. Admittedly, separate show cause notice dated 4.2.2013 issued to all the Plaintiffs/Appellants directing them to file their reply. In all these matters, they filed separate reply (on 4.2.2013 to 11.2.2013) and provided supporting documents, including receipts issued by the Bombay Housing and Area Development Board, possession order, and the rent receipts. Similar and identical documents were submitted by other occupants. Allotment letter is (28.12.1983) issued by the Competent Authority-Bombay Housing and Area Development Authority referring the form 33(2) and Section 77 of Mumbai Building Repair And Reconstruction Board Act, 1969 (for short “MBRRB Act”) also filed. The statement is made that similar allotment letters have been issued to all the Appellants/Plaintiffs. The possession letters so annexed are ranging from 11.8.1978 to 28.12.1983. A document showing occupation of the original premises of 11.8.1978 is also annexed with the reply, as the Board had decided to reconstruct the area under the provisions of the MBRRB Act. Similar notices were also issued to others also. A receipt is also placed on record dated 1.11.1983 to show that they deposited the amount towards security deposit for transit camp. Some old receipts of the earlier premises from the landlord of the year 1978 to show that they were in occupation as monthly tenant. Some receipts also placed on record to show the payment which they have made with regard to the shifting charges for changing one transit camp to another transit camp. The respective details are part of the records also.
Unilateral-unreasoned decision by the Executive Engineer.
5. The Executive Engineer on 8.6.2012 to 5.3.2013, referring to earlier notices from 2005 to 2011 and show cause notice in question comes to the conclusion by holding that the Plaintiffs were absent though called for with papers. No reason given upon the reply and the documents annexed with it as referred in earlier paras. The learned Judge, while rejecting the Notice of Motion by referring to various provisions added m
