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2016 Supreme(Bom) 379
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Dr. Ashok Trivikram Wagle and Ors. – Petitioners
Versus
Estate Manager-5 and Ors. – Respondents
WRIT PETITION NO.957 OF 2014 WITH CIVIL APPLICATION NO.3260 OF 2015
Decided On : 7-04-2016
Advocate Appeared:
For the Petitioners:Mr. Y. S. Jahagirdar, Senior Advocate a/w Mr. S. S. Kanetkar.
For the Respondents:Mr. P. G. Lad, Mr. D. S. Mhaispurkar, Mr. P. K. Samdani, Senior Advocate i/by Maniar Srivastava Associates,
The main legal point established in the judgment is that the premises in question were 'Authority Premises' within the meaning of the Mhada Act, and the Petitioner, having divested himself of all his rights in the premises, could not be considered an 'aggrieved person' to challenge the eviction orders.
Headnote:
Rule - Writ Jurisdiction against order dated 08.10.2013 passed by the Appellate Officer, Maharashtra Housing and Area Development Authority (MHADA) in Appeal No.8 of 2013 - Maharashtra Housing and Area Development Act, 1976 (Mhada Act) - Section 66 - The court considered the breach of clauses 2(j) and 2(m) of the Lease Deed executed between the Petitioner and MHADA, and the transfer of leasehold rights to the Respondent No.2 and further to the Respondent No.3. The court analyzed the definition of 'Authority Premises' under Section 2(4) and 'premises' under Section 2(27) of the Mhada Act, and concluded that the premises in question were 'Authority Premises' within the meaning of the Act. The court also discussed the judgments of Jiwan Nath Razdan Vs. The State of Maharashtra and Nirmala Dhondiram Kadam Vs. Shatrughana Padave, and found that they did not further the case of the Petitioner. The court also considered the legal principles laid down in The State of Bombay Vs. Morarji Cooverji, M. P. Mittal Vs. State of Haryana and State of Maharashtra and others Vs. Prabhu, and held that since the Petitioner had divested himself of all his rights in the premises, the exercise of writ jurisdiction was not warranted.
Fact of the Case:
The Petitioner, who was practicing as a doctor, rented premises from MHADA in 1960 for a dispensary and residence. MHADA offered the premises on ownership basis, and a Sale Deed and Lease Deed were executed in 1993. In 2005, the Petitioner applied for a 'No Objection' for transfer of the premises and subsequently executed a Deed of Assignment in favor of the Respondent No.2. The Respondent No.2 further assigned the premises to the Respondent No.3. Eviction proceedings were initiated against the Petitioner for breach of clauses 2(j) and 2(m) of the Lease Deed.
Finding of the Court:
The court found that the premises in question were 'Authority Premises' within the meaning of the Mhada Act, and the invocation of Section 66 of the Act to evict the Petitioner was valid. The court also held that the Petitioner, having divested himself of all his rights in the premises, could not be considered an 'aggrieved person' and that the exercise of writ jurisdiction was not warranted.
Issues: The main issue was whether the proceedings under Section 66 of the Mhada Act could have been initiated against the Petitioner for breach of clauses 2(j) and 2(m) of the Lease Deed, and whether the Petitioner could be considered an 'aggrieved person' to challenge the eviction orders.
Ratio Decidendi: The court's decision was based on the interpretation of the definition of 'Authority Premises' and 'premises' under the Mhada Act, and the legal principles laid down in relevant judgments. The court also considered the Petitioner's divestment of rights in the premises and the principles of justice in exercising writ jurisdiction.
Final Decision: The challenge to the orders passed by the Competent Authority and the Appellate Authority of MHADA was dismissed, and the Writ Petition was accordingly dismissed. The court also rejected the Petitioner's prayer for continuation of the order of status quo.
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 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 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 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
