1 app343.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.343 OF 2011 Shree Om Sai Welfare Society. .. Appellant. vs Maharashtra Housing and Area Development Authority & Anr. .. Respondents Mr. M.V. Holmagi, advocate for appellant. Mr. P. G. Lad, AGP for respondent. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J 4 July 2011 P.C. Heard learned counsel for the parties. This appeal purports to be an appeal against the order dated 6 April 2011 of the learned trial Judge of this court in Notice of Motion No. 549 of 2011. While dismissing the motion, the learned Single Judge had indicated that in view of the order passed in Notice of Motion No. 439 of 2011, Notice of Motion No. 549 of 2011 was thoroughly misconceived and there was no merit whatsoever. At the oral request of the learned counsel for the appellant we have therefore, allowed the appellant to challenge the order dated 6 April 2011 in Notice of Motion No.439 of 2011 as well. 2 app343.11 2. It appears that the appellant society had made an application to MHADA for allotment of land. The appellant had filed suit being Suit No. 329 of 2011 contending that the appellant/plaintiff is in possession of the suit land and sought interim injunction during the pendency of the suit for protecting its possession. While passing ad-interim order on 1 December 2010, the learned trial Judge observed that there was no doubt that possession of the land was with the defendant No.1 authority and that it will not part with possession thereof or dispose of the same except by due process of law. 3. In the affidavit filed by MHADA it was indicated that the land in question was acquired under the Land Acquisition Act and that the initial acquisition was of 13,784 sq. meters of land. The land holder had challenged the same in a writ petition in which ultimately consent terms have been filed on 11 October, 1995 and the 50% of the land was released in favour of the owner while the balance was retained by the MHADA for its housing projects. The release of 50% land in favour of the owner was subject to certain condition that he would construct upon the land under D.C. Regulation 33(14)(d) and hand over a built up area to the MHADA 3 app343.11 free of cost. MHADA accordingly contended that the land in question was not available for allotment in view of the above consent terms. MHADA also contended in the aforesaid affidavit dated 30 November 2010 that the development has already been taken up by the MHADA and the land was not available for allotment under Regulation 16 of the Maharashtra Housing and Area Development (Disposal of land) Regulations. It was further pointed out that even if land were to be available for allotment, no allotment could be made in favour of the appellant without following procedure as prescribed by the Regulations for considering public offers. The plaintiff’s statement that it was in possession of the land was not only controverted but it was also stated that it was a false averment. 4. After considering the aforesaid defence of the MHADA, the learned trial Judge dismissed the Notice of Motion No. 439 of 2011 by order dated 6 April 2011. Notice of Motion No. 549 of 2011 is filed by the appellant on the basis that MHADA had committed breach of interim order dated 1 December 2010. The learned trial Judge has dismissed the said motion also by holding that motion was thoroughly misconceived as the plaintiff was not entitled to allotment of suit land from MHADA. 4 app343.11 5. Having heard the learned counsel for the appellant/plaintiff and the learned counsel for the MHADA, we do not find any merit in this appeal either in respect of challenge to the order in Notice of Motion No. 439 of 2011 or in respect of challenge to the order in Notice of Motion No. 549 of 2011. However, we make it clear that not accepting any of the contentions raised in this appeal will not come in the way of the appellant to make an application before the MHADA for allotment of any other land. Such application shall be considered by the MHADA in accordance with law. We may not be treated to have expressed any opinion in respect of appellant’s entitlement for allotment of land. If the MHADA has to follow any statutory regulation or instructions applicable for such allotment, the MHADA shall follow the same and we may not be treated to have given any direction to the MHADA or recommendation for allotment of land to the appellant. Subject to above clarifications, the appeal is dismissed. CHIEF JUSTICE GIRISH GODBOLE, J