1 (WP 1461 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1461 OF 2010 Shaikh Amin Akhtar and Anr. … Petitioners vs. State of Maharashtra and Ors. … Respondents ----- Mr. N.S. Nappinai for Petitioners Mr.R.M. Patne -AGP for Respondent No.1 Mr.G.S. Hiranandani for Respondent No.4 Mr.Vinod L. Desai for Respondent No.5 ----- CORAM: V.M. KANADE J. DATED: 18th February, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners, learned counsel appearing on behalf of the Respondent No.5 and the Shri Hiranandani who has been appointed as the Court Receiver by the Lower Appellate Court, who is Respondent No.4 herein. 2. The Petitioner herein is challenging the orders passed by the Lower Appellate Court dated June 11, 2010, 28th October, 2010, 30th November, 2010, 6th 2 (WP 1461 of 2011) December, 2010 and 22nd December, 2010 by way of an interim order, the Petitioner no.2 is seeking leave of this Court to permit him to remove his articles which are kept in one room of flat No.703, which is in possession of the Respondent No.5 pursuant to the orders passed by the Lower Appellate Court. 3. Brief facts are that the Respondent No.5 filed a dispute against the society-Respondent No.2 herein, claiming the possession of flat No.402 or any other flat which was vacant in the said society. Flat No. 402 was already in occupation of Mrs. Madhuri Pal, who is Opponent No.2 in the dispute. The Co-operative Court allowed the dispute filed by the Respondent No.5 and directed that the Respondent No.5 should be put in possession of Flat No.402 or any other flat which was vacant in the society. This order was challenged by the Original Opponent No.2-Mrs. Madhuri Pal by filing an appeal before the Appellate Court. During the tenancy of the appeal, the Appellate Court directed the society to file an affidavit, pointing out which flat is vacant in the society. Accordingly, an affidavit was filed by the Society in which they had stated that flat Nos. 701, 702 and 705 3 (WP 1461 of 2011) are vacant. In the affidavit,however, it was also stated that the dispute in respect of three flats was pending in the Civil Court at Dindoshi. It appears that the Lower Appellate Court in spite of the said affidavit which was filed, surprisingly modified the award passed by the Co- operative Court and directed the Court Receiver to take forcible possession of Flat No. 702 by removing any person who was found to be in occupation of the said flat and put all the articles of the said person in one room. The Petitioner No.1 claims to be the owner of the said flat and also claims that he has given the said flat on leave and licence basis to the Petitioner No.2. It is submitted that the impugned orders, which are passed, are not only perverse but could not have been passed without passing an award and without making the Petitioner Nos. 1 and 2 parties to the dispute. It is submitted that at the moment, the Petitioner no.1 has to go to Australia on Sunday and his passport, POI Card, registration documents, cheque book and personal belongings are kept in one room of flat No. 702. 4. Prima facie, in my view, the impugned orders could not have been passed by the Co-operative Appellate 4 (WP 1461 of 2011) Court and the award which was passed by the Co- operative Court could not have been modified particularly when the society had clearly stated in their affidavit that a dispute in respect of flat Nos.701, 702 and 705 was pending in the Civil Court. Prima facie, these orders, in my view, to say the least are perverse. 5. The learned counsel appearing on behalf of the Respondent No.5 has submitted that the petition filed under Article 226 and/or 227 of the Constitution of India is not maintainable. He has relied on several judgments of the Apex Court. 6. In my view, the Respondent No.2 can file a short affidavit in reply within one week from today and all the questions including the question of maintainability of the Petition will be considered on the next date. However, in view of the fact that the Petitioner No.2 urgently wants some of his own articles which are lying in one room of flat No.702, Court Receiver is directed to co-ordinate with the Petitioner No.2 and permit him to take all the articles and belongings from the said room after preparing an inventory of the said articles. The 5 (WP 1461 of 2011) Respondent No.5 shall not create any kind of obstruction and/or interference in the said process of Petitioner No.2 removing the articles from one of the rooms of the said flats where the articles are now kept. The Petitioner No.2, the Court Receiver- Mr. Hiranandani and either the Respondent No.5 or one of his representative shall remain present at 9.00 a.m. tomorrow on 19th February, 2011. The Court Receiver shall prepare an inventory of the articles which are to be taken away by the Petitioner no.2. Parties to act on the authenticated copy and even if the copy is not available, in view of the oral order which is dictated in the Court in the presence of all the parties. The Petitioner No.2 shall pay Rs.7,500/- as fees of the Court Receiver for tomorrow’s visit. 7. Stand over to 25th February, 2011. In the meantime, the Respondent No.5 shall not create any third party rights in respect of the said flats. (V.M. KANADE J.) 6 (WP 1461 of 2011)