1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2133 OF 1990 Smt. Ayeshabegam Jafaroddin Sayyad Age major, r/o. L.I.C. 86/523, Savedi, Ahmednagar HUDCO Colony, Ahmednagar. .. petitioners Versus 1] The Maharashtra Pune Housing and Area Development Board through the Estate Manager cum Administrative Officer, Pune Housing and Area Development Board, Pune at present Nashik H.S.A. Development Board, Grahanirman Bhawan, Gadkari Chowk, Nashik. 2] Competent Authority – II Maharashtra Housing and Area Development Authority Graha Nirman Bhavan, Bandra, East Bombay-51. 3] Appellate Authority – Officer Maharashtra Housing and Area Development Authority Graha Nirman Bhavan, Bandra, East Bombay-51. 4] House Rent Collector, HUDCO officer Savedi Road, Savedi HUDCO, Ahmednagar. 5] Sugarabi Bhrhan Shaikh since deceased through LR 5A)Sayed Layak Juber Abdul Kadar, 2 Age 32, Occ. Business, R-B-26, Sital Housing Society, Govindpura, Ahmednagar, District Ahmednagar. .. Respondents. --- Mr. A.B. Gatne, Advocate for petitioner. Mr. D.K. Kulkarni, Advocate for the respondent NO.5 Mr. P.P. More, AGP for respondent Nos. 1 5to 4. CORAM : B.R. GAVAI,J. DATE : 13th November, 2009. ORAL JUDGMENT :- 1] The petitioner, by way of the present petition, impugns the order dated 27th December, 1989, cancelling the regularization of the occupation of the petitioner in the tenement No. 523/86, in the scheme of Respondent No.1 at Hudco Colony, Savedi, Ahmednagar. ( hereinafter referred to as “the said premises”) The petitioner also impugns the orders dated 11/6/1999 and 8/1/1991, passed by the respondent No.2. 2] The litigation between the parties has a chequered history. It appears that the original respondent No.5 Sugarabi, at the relevant time was working as an Assistant Teaching in erstwhile Ahmednagar Municipal Council. It further appears that the erstwhile Ahmednagar Municipal Council alongwith the Maharashtra Housing and Area Development Board (hereinafter referred to as the “Board”) had floated a scheme for construction 3 of housing complex for its employees. Accordingly , the respondent NO.5 was allotted a tenement in the scheme at Bagroja. It further appears that the respondent No.5 had also applied for a tenement constructed by the Board in the scheme known as “Savedi Scheme”. The respondent No.5 was also allotted a tenement n the said Savedi Scheme, being tenement No. 523 in Building No.86. 3] It appears that when the said premises were inspected by the officers of the Board on 11/2/1985, it was found that the respondent No.5 was not residing in the said premises and that the said premises were sub-let without previous permission of the Board to the present petitioner and her husband namely Jafruddin Mohd. Sayyed. Accordingly, a notice was issued under Section 66(2) of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as “the said Act” for the sake of brevity) to the respondent No.5 as well as the present petitioner and her husband. It appears that the petitioner and her husband had stated before the competent authority that the original tenant was staying in the tenement allotted to her at Bagroja and that she had sub-let the said premises to the petitioner. In the said proceedings, the rent controller was also examined by the competent authority, who has found that the original tenant was not residing in the premises and that the premises were in the exclusive possession of the present petitioner and her husband. On the basis of the material placed on record, the competent authority, vide order dated 28/8/1985 passed an order 4 of eviction against the respondent No.5 as well as the petitioner and her husband. 4] It appears that after the petitioner and her husband were held to be unauthorized occupants and an order of eviction was issued against them, the present petitioner filed an application before the Board on 8/12/1986, stating therein that she was exclusively residing in the said premises making the payment of the installments as well as the rent from the salary of her husband. She had submitted that as such, her occupation be regularized on payment of the necessary charges. 5] Accordingly, an order was passed on 8th April, 1987, thereby regularizing the occupation of the petitioner in the said premises on payment of Rs. 24,456/-. An amount of Rs. 16,100/- was towards the original price of the tenement and an amount of Rs. 7500/- was towards the penal charges and remaining amount was towards the arrears of rent. It can also be seen that vide the said order, the Board directed payment of Rs. 11/- as rental charges. It further appears that the erstwhile Municipal Council had also directed payment of some municipal taxes as a condition for mutating her name on the records of the Municipal Council. However, it appears that, subsequently vide order dated 27th December, 1989, the regularization of the tenancy in favour of the petitioner, came to be set aside. 6] In a parallel proceeding, the petitioner had filed Regular Civil Suit No. 375/1987, seeking an order of injunction against the respondent 5 No.5. The said suit was decreed finding that the petitioner was in possession and the appeal preferred thereagainst by the respondent No.5 was allowed on the ground that in the meantime, an appeal filed by the respondent NO.5 allowed by the appellate authority under the MHADA Act. . Being aggrieved thereby, a Second Appeal bearing Second Appeal No. 153/1990 was preferred by the present petitioner in this court. However, during the pendency of the said Second Appeal, the original respondent No.5 herein, expired. In that view of the matter, vide order dated 28th August, 2007, the said Second Appeal No. 153/1998 came to be disposed of by this court, finding that since the order of injunction was an order in personam, and since the respondent No.5 had died, nothing survives in the second appeal. 7] In an another parallel proceeding , it appears that the respondent No.5 had challenged the order of cancellation of allotment in her favour before the appellate authority under the said Act, by way of Appeal No. 5/1990. the appeal was allowed vide order dated 31/1/1990. The order against the respondent No.5 was set aside and the matter was remitted back to the competent authority for trial afresh. The competent authority i.e. respondent No.2 herein, on remand, vide order dated 11th June, 1990 dropped the eviction proceeding against the respondent NO.5. The petitioner, therefore, has approached this court being aggrieved by the two orders (1) passed by the appellate authority dated 22/1/1990 remanding the matter to the competent authority and the order dated 11/6/1990 thereby dropping the 6 eviction proceedings against the respondent No.5 and the order dated 27/12/1989 thereby cancelling the regularization in favour of the petitioner. 8] Shri Gatne, learned counsel appearing on behalf of the petitioner submits that the Board has erred in passing the order dated 27/12/1989 cancelling the regularization which was granted in favour of the petitioner vide order dated 8/4/1987. He submits that the regularization is cancelled on the ground that the “No objection Certificate” of the original allottee was not obtained. It is submitted that there is no requirement under Regulation 25 of the Maharashtra Housing And Area Development Regulation, 1981 ( hereinafter referred to as “the MHADA Regulations”) for obtaining NOC of the original allottee. . He further submits that the orders passed by the appellate authority so also the competent authority dated 8/1/1990 are also illegal, inasmuch as, both the orders have been passed without the petitioner being made a party to the proceeding and without giving her an opportunity of being heard. He further submits that even on equity, since the Board had regularized the tenancy of the petitioner on payment of original price so also the penal charges, the petitioner was required to be continued as tenant. 9] Shri Kulkarni, learned counsel for the respondent NO.5 on the other hand submits that the respondent NO.5 after allotment was residing in the said premises. It is further submitted that since the respondent No.5 was 7 a spinster, instead of living alone, she had permitted the petitioner and her husband to reside with her. It is further submitted that in the month of April, 1987, the respondent No.5 was thrown away from the house alongwith her belongings by the present petitioner. He submits that in so far as the regulation which does not permit the present petitioner to apply for allotment of premises constructed by the Board, if he already possesses a tenement is concerned, the same has come into effect from January, 1990. He, therefore, submits that since the allotment in favour of the respondent No.5 , in respect of both the premises, is prior to that date and as such, the contention in that regard is without substance. He further submits that, even if it is held that the respondent No.5 is not entitled to allotment, the petitioner does not get any right to allotment in her favour, inasmuch as, there is no provision for regularization under the said Regulations. He further submits that since the petitioner herself is a wrongdoer, she is not entitled to any equitable reliefs. He, relies on the judgment of the learned Single Judge of this court in the case of “Narayan Kisan Gade Vs. Machindranath Kundlik Tarade” reported in 1994 Mh.L.J. 558 in support of this proposition. The learned counsel further relies on the judgment of the Apex Court in the case of “CCT Orissa Vs. Indian Explosives Ltd.” reported in (2008)3 SCC 688, And submits that since the petitioner had an alternative 8 remedy by way of appeal before the Appellate Authority under the said act, the present petition, which is filed without exhausting the alternate remedy, is not tenable before this court. 10] Shri More, the learned AGP, who has instructions to appear on behalf of the respondent Nos. 1 to 4, submits that the scheme has been framed by the Board for providing residential accommodation to the needy persons. He submits that the conditions were imposed that if a person possesses one tenement, he cannot apply for another tenement, so that such persons do not indulge in profiteering in a scheme meant for providing houses to the needy persons. He further submits that since the present respondent NO.5 has obtained allotment by suppressing her earlier allotment of tenement to her at Nalegaon Bagroja, she is not entitled to be continued as a tenant of the said premises. He further submits that, equally, the petitioner who is unauthorizedly occupying the said premises is also not entitled for possession. He further submits that the non-production of NOC was not the only ground for cancellation of regularization in favour of the petitioner. He submits thatalso cancelled on the ground that the petitioner was not found to be in occupation of the said premises in the year 1987. 11] I will first deal with the preliminary objection raised by Shri Kulkarni, regarding the non-entertaining the present petition, on the ground of availability of alternate remedy. No doubt, when a party has an equally 9 efficacious remedy to seek redressal of his grievance before any other forum, normally, this court would not entertain the petition and relegate the party to exhaust the alternate remedy available to him under the law. However, it is a settled law that the said rule is a rule of self-restraint and not an absolute rule. It is also equally a settled law that the preliminary objection regarding non- entertaining the petition on the ground of availability of alternate remedy has to be raised at the earliest possible opportunity and hence, when a petition is admitted for final hearing a party cannot be permitted to raise such a ground. Admittedly, the present petition has been filed in the year 1990 and has been admitted on 24/7/1990. As such, I find that it will not be appropriate to non- suit a party on this ground, after it has waited at the doors of justice for almost for 2 decades. It is further to be noted that though vide order dated 28/6/1985 the petitioner was found to be in unauthorized occupation and served with an order of eviction, the petitioner had immediately taken steps for regularization of her tenancy rights. Not only this, but as a matter of fact, vide order dated 8th April, 1987, the tenancy of the petitioner was regularized. I find that the background of the petitioner making attempts of regularization of her tenancy rights and her tenancy being in effect regularized, she would not have found it necessary to challenge the order of eviction before the appellate court. In this view of the matter, I am not inclined to accept the objection raised by the respondent No.5 about the non-tenability of the present petition. 10 12] From the perusal of page 20 and 21 of the paper book, it can be seen that the respondent NO.5 was allotted a tenement in a scheme floated jointly by the erstwhile Ahmednagar Municipal Council and the Board. It can further be seen from the said allotment order that it has also been specifically stated in the order of allotment that if a person has claimed an allotment in the scheme framed by the Board and if he is successful in the lottery, then he will not be entitled to claim the said allotment. Not only this, but in the advertisement which is issued by the Board for allotment of the tenements at the Savedi Scheme at Ahmendagar, it has been specifically stated in condition NO.4 that if a person is possessing any house, plot or tenement in the name of such person or his spouce, the said person shall not be entitled to make an application for allotment. Admittedly, the respondent No5 was already allotted a tanament in the scheme at Bagroja, when she had applied for the allotment in the Savedi scheme. It is thus clear that at the time of application itself, the respondent NO.5 was not entitled for allotment of a tenement in Savedi scheme, wherein, the said premises are situated. 13] From the record, it is clear that when the premises were inspected by the Officers of the Board, it was found that the present petitioner alongwith her husband were in occupation of the said premises. Finding that the original tenant was not in occupation of the premises, and the present petitioner alongwith her husband were in occupation of the said premises, the proceedings were initiated vide order dated 15/5/1985. From the perusal of order dated 28/6/1985, it could be seen that the competent authority, on the 11 basis of the evidence of the petitioner, so also, the Rent Controller found that the present petitioner, and her husband were in occupation of the premises. From the evidence of the Rent Controller, it could be found that, it was the present petitioner, who was paying the rent to the Rent Controller. In that view of the matter, I do not find any error in the order dated 28/6/1985, vide which the order of eviction was passed against both, the petitioner as well as the respondent No.5. 14] As already stated hereinabove, immediately after the order of eviction was passed against the petitioner, she has persued the matter with the Board, for transfer of the said premises in her name and for regularizing her tenancy. For considering the question as to whether the Board was empowered to regularize the tenancy of the petitioner herein, it would be necessary to refer to Regulation No.25 of the MHADA Regulations, which reads thus :- “25. Prohibition against transfer of tenement : (1) No allottee shall during the currency of the tenancy under Regulation 20, transfer any tenement allotted to him except with the previous permission in writing of the Board and also of the housing society of the company, if such a society or company has already been formed and registered. It shall be open to the Board to refuse the permission or to grant the same subject to such cond/itions including a condition regarding payment 12 of a portion of the unearned increase in the value of the tenement not exceeding fifty per cent, of such increase as the Authority may, in its absolute discretion but subject to the other provisions of this Regulation, thinks fit.” It can thus be seen that though basically Regulation 25 deals with the prohibition against the transfer of tenement, it also permits the Board to grant permission for transfer, on such conditions, including a condition regarding payment of portion of unearned increase in the valuation of the tenement not exceeding 50% of such increase. 15] From the perusal of the order dated 8th April, 1987, it would clearly reveal that the application of the present petitioner was for regularization from 16th April, 1987. It can further clearly be seen that the application of the present petitioner for regularization was favourably considered by the authorities of the Board on the condition that the petitioner pays the entire amount towards the costs of the tenement and also penal fees of Rs. 7,500/-. Undisputedly, such an amount has been paid by the petitioner and accepted by the respondent Board. It is, therefore, not in dispute that the right from the allotment till as on today, the petitioner is in occupation of the said premises. However, it appears that on 27th December, 1989, the order of regularization passed in favour of the petitioner was unilaterally cancelled by the Board. One of the reasons given therein is that, the tenancy is regularized without the NOC of the original allottee. However, the learned counsel appearing of behalf of the Board is not in position to point out any provision which requires that the NOC of the previous allottee should be submitted prior 13 to the regularization of the tenancy. In any case, it has to be noticed that the order dated 27/12/1989 was an order inviting adverse civil consequences and thereby taking valuable rights accrued in favour of the petitioner vide order dated 8/4/1987. It is a settled law that no order, inviting adverse civil consequences can be made against a party without giving him an opportunity of being heard. The said order is patently in violation of the principles of natural justice and as a naturally corollary thereof the said order cannot withstand the scrutiny of law and therefore,will have to be set aside. 16] Now let us consider the second aspect of the matter. It appears that after the order of eviction was passed on 18/6/1985, the respondent No.5 has filed an appeal challenging the order in the year 1990 by way of Appeal No. 5/1990. It is further to be noted that in the said appeal, the petitioner was not impleaded as a party respondent. It is pertinent to note that in th year 1987 itself, the petitioner had filed a suit for injunction against the respondent No.5. The respondent No.5 had also participated in the said proceeding. The respondent No.5 was, therefore, very well aware about the steps taken by the petitioner for regularizing her tenancy. Even inspite of that, and inspite of respondent No.5 knowing that the tenancy rights of the petitioner were regularized on 8th April, 1987, as is evidenced from the order passed by the Estate Manager of respondent Board, he had chosen not to implead the petitioner in appeal, which is filed in the year 1990. The learned Appellate Authority, knowing very well that the rights of the present petitioner were 14 involved in the appeal, could not have proceeded further in the appeal, without joining the present petitioner as a party respondent. 17] Perusal of the order dated 22/1/1990 would reveal that there are various adverse observations against the present petitioner in the said order. As already discussed hereinabove, no orders inviting adverse civil consequences against a person can be passed without the said person being made a party and without giving him an opportunity of hearing and meet the case of his adversary. The order dated 11/6/1990 passed by the competent authority would also suffer from the said vice. Perusal of the said order would reveal that the petitioner was also not given any notice prior to passing of the said order nor an opportunity of hearing was given to the petitioner. It is a specific averment of the petitioner that the said order has also been passed without hearing the petitioner. In that view of the matter, both these orders passed by the Appellate Authority, so also, the competent authority, are not sustainable in the eyes of law and will have to be set aside. 18] The learned counsel for the respondent NO.5 has streneously urged that the respondent NO.5 was residing in the said premises. However, since she was a spinster, she had permitted the present petitioner and her husband to reside with her. However, in the month of April, 1987, the petitioner's husband had thrown the respondent No.5 out of the house alongwith her belongings. However, the said stand is contradictory to the stand taken by the respondent NO.5, in R.C.S. No. 375/1987. In the said suit, she had taken a stand that the she had kept the plaintiff in the house due 15 to love and affection. However, she used to be always out of the house on account of her duties. It is stated that petitioner, taking advantage of this fact, had prepared a false document in collusion with the officers. It is thus clear that the respondent NO.5 has taken a totally contradictory stand. Had the petitioner really thrown the respondent NO.5 out of her house alongwith her belongings, the reasonable action on the part of any law abiding citizen would have been to lodge a complaint either to the police authorities or to the Board. However, the learned counsel for the respondent NO.5 has not been in a position to place any such document on record. It is further to be noted that there is not even an averment made in the affidavit in reply that any complaint to the police authorities or the Board was given by the respondent No.5. 19] It thus clearly appears that the respondent NO.5 was residing at the house allotted to her in a scheme framed by the Municipal Counsel and the Board in Bagroja and was not residing in the said premises, as has been found by the Officers of the Board while inspecting the said premises. 20] It is equally clear that the respondent NO.5 had obtained the allotment of the said premises by suppressing the allotment of the tenement in the scheme at Bagroje, which was not permissible in view of document at Exhibit A, so also, the advertisement issued by the Board for inviting applications for allotment of the tenement at Savedi scheme. 21] It is thus clear that the petitioner has been residing in the said house right from the beginning and after their possession was found to be 16 unauthorized, an order of eviction was issued against them, they applied to the Board for regularization, which regularization was done in accordance with law, after receiving the costs of the tenement alongwith the penal charges. I find that in this background, it will not be equitable to oust the present petitioner from the said premises when her occupation was regularized in accordance with law, by paying the necessary charges. 22] In that view of the matter, rule is made absolute in terms of prayer clauses (B) (C) and (D) with no orders as to costs. It is also to be noted that the original respondent NO.5 died in the year 2007 and the petition, at the present, is prosecuted on behalf of the respondents, who claim to be legal heirs on the basis of a will executed by the original respondent NO.5 in his favour. However, it appears that vide order dated 9/7/1999, the petitioner was directed to deposit an amount of Rs. 15,000/- as a condition for continuation of interim relief. Shri Gatne, learned counsel appearing on behalf of the petitioner submits that the petitioner is not