1 as-wp-8914-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION jmi WRIT PETITION NO. 8914 OF 2010. Kavita Vishnu Shivdasani. ..Petitioner. vs. The State of Maharashtra through the Principal Secretary, Revenue & Forest Department & Ors. ..Respondents. .... Mr. Vaibhav Joglekar, a/w. Sahil Mahajan, for Petitioner. Mr. S.K. Shinde, ‘A’ Panel Counsel, for Respondent No.1. Dr. Ruby Jal Kharas, Respondent No.5, present in person. .... CORAM : MOHIT S. SHAH, C.J. & S.J.KATHAWALLA, J. DATE : 20TH DECEMBER 2010. P.C. The learned Advocate for the Petitioner has tendered draft amendment. He submits that the Petitioner be allowed to amend the Petition in terms of the draft amendments. The draft amendments are taken on record and marked ‘X’ for identification. The Petitioner is allowed to amend the Petition in terms of the draft amendments marked ‘X’ within a period of one week from today. 2. By this Writ Petition, the Petitioner has inter-alia sought a declaration that in view of the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (the said Act) by the Displaced Persons Claims and Other Laws Repeal Act, 2005, the Respondent Nos. 2 to 4 do not have any power to take any action as 2 as-wp-8914-10 regards the premises in occupation of the Petitioner i.e. Part of Flat No.2, First Floor, Mohammedbhai Mansion, 7, S. Patkar Marg, Mumbai-400 036 (the said premises) including the eviction of the Petitioner therefrom and that the notices dated 11th October 2010, Exhibit-Q to the Petition and 3rd November 2010, Exhibit-W to the Petition issued by the Respondent No.4 to the Petitioner is per-se illegal, null and void ab-initio and unconstitutional and liable to be quashed and set aside. The Petitioner has also sought a Writ of Mandamus directing Respondent No.1 to withdraw, rescind and cancel the notices dated 11th October 2010 and 3rd November 2010. 3. The said Mohammedbhai Mansion, 7, S. Patkar Marg, Mumbai-400 036 is an evacuee property and the Respondent No.5 is the tenant in respect of flat no.2 situated on the first floor of the said building. The Petitioner since the year 1999 is in use, occupation and possession of a part of flat no.2, i.e. the said premises which is a self- contained premises. 4. On a complaint of Respondent No.5, Respondent No.3 through Respondent No.4 had issued a notice/order dated 9th June 2010 to the Petitioner, thereby directing the Petitioner to vacate the said premises within a period of 48 hours which the Petitioner challenged in Writ Petition (Lodging) No.1372 of 2010 filed before this Court. The Respondent No.4 withdrew the said order and accordingly the Writ Petition was disposed of by an order dated 24th August 2010. Thereafter, the Respondent No.4 issued notice dated 11th October 2010 calling upon the Petitioner to submit documentary evidence showing rights to occupy the said premises failing which 3 as-wp-8914-10 action of eviction was threatened under section 19(2)(b) of the said Act. 5. The Petitioner through her Advocate issued letters to the Respondents raising certain preliminary issues including authority to proceed under the said Act. When the Respondents failed to respond to the said letters, the Petitioner filed a Miscellaneous Application dated 26th October 2010 before the Respondent No.4 raising certain preliminary issues and in the meantime, seeking stay of the notice dated 11th October 2010. The Respondent No.4 thereafter issued a notice dated 3rd November 2010 directing the Petitioner to vacate the said premises and handover the same to the Government. By the said notice, the Petitioner was called upon to remain present on 12th November 2010 in the afternoon at 3.00 p.m. at Mantralaya for a hearing. 6. According to the Petitioner, on 12th November 2010, the Petitioner attended the hearing before the Respondent No.4 and drew the attention of the Respondent No.4 to the fact that the said Act was repealed and the Respondent No.4 cannot take any action under the said Act. In response, the Respondent No.4 informed the Petitioner and her Advocate that there is a stay order dated 5th December 2008 of the Hon’ble Supreme Court in respect of the said Act passed in the Special Leave to Appeal (Civil) No.(s) 6703 of 2008 and therefore, she was entitled to take action against the Petitioner under the said Act. The Petitioner and her Advocate requested for time to file a reply and to study the said order of the Hon’ble Supreme Court but the Respondent No.4 refused to grant any such time. According to 4 as-wp-8914-10 the Petitioner, when her Advocate enquired with the Respondent No.4 as to when the Petitioner would get a copy of the order, the Respondent No.4 informed that she was not going to pass any order and that the notice /order dated 3rd November 2010 itself was a final order and that the Petitioner must vacate the premises immediately. Thereafter, the Petitioner’s Advocate by his letter dated 15th November 2010 addressed to Respondent No.4 recorded the events that transpired on 12th November 2010 in the hearing held before the Respondent No.4. The Petitioner thereafter filed the present Petition inter-alia seeking the aforestated reliefs. 7. The learned Advocate appearing for the Petitioner has submitted that at the time of hearing held before the Respondent No.4 on 12th November 2010, the miscellaneous application filed by the Petitioner raising certain preliminary issues including the issue that the said Act had been repealed and the Respondent No.4 did not have any powers to take any action against the Petitioner under the said Act was pending. However, the Respondent No.4 failed to decide the said miscellaneous application and instead relied on a stay order dated 5th December 2010 of the Hon’ble Supreme Court in Special Leave to Appeal (Civil) No.(s) 6703 of 2008 and without giving any opportunity to the Petitioner to deal with the said order and without passing any written orders verbally informed the Petitioner and her Advocate that the notice dated 3rd November 2010 itself was a final order and the Petitioner must vacate the premises immediately. He therefore, submitted that the impugned acts and omissions on the part of the Respondent No.4 are illegal, void and unconstitutional and deserve to be set aside. The learned Advocate for the Petitioner 5 as-wp-8914-10 further submitted that the Petitioner is willing to file a comprehensive application before the Respondent No.4 inter-alia pointing out that the said Act has been repealed and the Respondent No.4 cannot take any action against the Petitioner under the said Act and that the Respondent No.4 may be directed to dispose of the said application within a stipulated period of time. 8. The Respondents have not filed their Affidavit-in-reply. This Court is of the view that the Respondent No.4 ought to have decided the Miscellaneous Application filed by the Petitioner which was pending before the Respondent No.1 on 12th November 2010, i.e. the day on which the Respondent No.4 gave a hearing to the Petitioner. This Court is also of the view that the Respondent No.1 ought to have passed a reasoned order dealing with the submissions advanced on behalf of the Petitioner at the time of hearing on 12th November 2010, instead of verbally directing the Petitioner to vacate the said premises. However, the learned Advocate appearing for the Respondents has submitted that if the Petitioner files a fresh application within a reasonable period of time, the same shall be disposed of by the Respondents within the period stipulated by this Court. 9. In view of the above, the following order is passed : (i) The Petitioner may file an application with the Respondents raising objections to the notices dated 11th October 2010 and 3rd November 2010 within a period of four weeks from the date of this order. (ii) The Respondent No.4 shall after giving a hearing to 6 as-wp-8914-10 the Petitioner, dispose of the Application filed by the Petitioner by a reasoned order as expeditiously as possible and in any event within eight weeks from the date of filing of the said application. (iii) Parties shall maintain status-quo as of today until the Respondent No.4 passes an order on the said application filed by the Petitioner and, in the event of the order being adverse to the Petitioner, for a further period of four weeks from the date of the receipt of the said order by the Petitioner. 10. The Writ Petition accordingly stands disposed of. CHIEF JUSTICE [ S.J. KATHAWALLA, J. ]