1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2398 OF 2001 Iddya Thimmaya Shetty ..Petitioner V/s. Estate Manager (I) MHADA & ors ..Respondents Mr.D.H.Mehta i/b.Mr.S.M.Kazi, Advocate, for the petitioner Mr.Santosh Narvade i/b.M.P.Vashi, Senior Counsel, for the respondent No.5 Mr.S.Ingavle, Assistant Government Pleader, for the State CORAM : P. B. MAJMUDAR R.M.SAVANT, JJ. DATE : 26TH JUNE, 2009 P.C. . The son of the petitioner one Vithaldas Thimaya Shetty, who was the tenant of the five shops in Building No.185 situate at Pant Nagar MHADA Colony, Ghatkopar (E), Mumbai, died on 27th November, 1998. After his death, unfortunately a dispute started amongst the family members. The petitioner submitted an application to the Estate Manager, Mumbai Housing & Area Development Board 2 that being an heir of the son, he is ready and willing to pay transfer charges and other dues and that the said shops may be transferred in his name. The Estate Manager of MHADA by his Order dated 12th April, 2001, transferred the said shops in favour of one Mr.Ashok T. Shetty  respondent No.5, who is also a son of the present petitioner. The petitioner has challenged the said Order by way of this Writ Petition alleging that between respondent No.5 and him, he is having a better right and claim as his name appears at Sr.No.5 of Chapter 2 of the Hindu Succession Act, 1956 and that he is required to be given preference as compared to the brother of the deceased. In this connection, it is required to be noted that in the impugned decision dated 12th April, 2001, it has been observed that the shops were first offered to the mother of the deceased namely Smt.Yamunabai T. Shetty and after taking her consent the tenancy rights have been transferred in the name of her son i.e. the respondent No.5 herein. 3 2. Mr.D.H.Mehta, the learned counsel for the petitioner submitted that such an order could not have been passed by the MHADA without hearing the petitioner. It is further submitted that the petitioner had also made various representations to the Authority and even without considering his claim the aforesaid Order is passed. Various letters addressed by the petitioner are placed on record. The learned counsel for the petitioner further submitted that between the petitioner and the respondent No.5 the petitioner has got better claim as per Law i.e. as per Hindu Succession Act, 1956. 3. As against this, Mr.S.Ingavle, Assistant Government Pleader for the MHADA vehemently submitted that as per rules, the concerned shops were rightly offered to the mother of the deceased and as per her wish, the tenancy rights were transferred in favour of the respondent No.5. 4 4. We have heard the learned counsel for the parties and have gone through the pleadings. It is true that as per the rules and as per the policy of the MHADA, the shops in question were required to be offered first to the mother of the deceased but there is no material on record to suggest as to whether she had given any consent that the shops in question may be transferred in the name of the respondent No.5. The question which is required to be considered is, as to whether on mere consent of the mother, if any, the tenancy rights could have been transferred in favour of the respondent No.5 exclusive of other second heir. It is also required to be considered as to whether, if the mother refused to accept the tenancy rights, they are required to be offered to the other heirs as per Law. Since the matter is in connection with transfer of tenancy rights, in our opinion, the Authority is required to consider all the aspects after hearing the petitioner and the respondent No. 5. However, with a view to see that subsequently, 5 no heir may raise any issue regarding the shops in question, the Estate Manager of MHADA may pass appropriate order after hearing the petitioner, the respondent Nos.5 & 6 and such other heirs of the deceased Vithaldas Thimaya Shetty, who are interested in the subject matter i.e. the shops in question. The Estate Manager may take appropriate decision after hearing the petitioner and the others as mentioned hereinabove. The matter is accordingly remanded back to the Estate Manager. Appropriate decision may be taken as per the rules and regulations of the MHADA in this behalf. The said decision may be taken within a period of three months from today. Till the decision is taken by the Authority, the respondent No.5 shall maintain status-quo as on today. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs. ( R.M.SAVANT. J.) ( P. B. MAJMUDAR, J.)