-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.112 OF 2008 APPEAL NO.112 OF 2008 APPEAL NO.112 OF 2008 Shrikant Rupaji Kamble ...Appellant vs. Maharashtra Housing & Area Development Board ...Respondent Mr.Harish Pawar for the Appellant Ms S.V.Gajare A.G.P. for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 4, 2008. : MARCH 4, 2008. : MARCH 4, 2008. P.C.: P.C.: P.C.: 1. Heard Advocates for the parties. The Appellant is the plaintiff who filed a suit for declaration that he is the lawful occupier of the suit premises. The second prayer is for perpetual injunction restraining the Defendants from demolishing the suit premises and from forcibly dispossessing or disturbing use and occupation of the suit premises by the Appellant without following due process of law. The suit has been dismissed. 2. The submission of the Advocate for the Appellant is that in view of the statement made by the learned Counsel for the first Respondent, the suit ought to have decreed in terms of clause (b) of the plaint. He, therefore, seeks a decree in terms of prayer clause (b). 3. I have considered the submissions. Paragraphs 23 and 24 -2- of the Judgment of the learned trial Judge read thus : "23. The Plaintiff has mainly came with a case that MHADA is bound to resort to provision under section 66 (1) (b) of MHADA Act and no other procedure. MHADA’s Advocate fairly stated that a show cause notice will be issued to the Plaintiff, reasonable opportunity will be given to him and appropriate orders will be passed thereafter. As discussed above, the Plaintiff has failed to prove that the suit platform (otala) was lawfully allotted to him. Admittedly, structure thereon is constructed unauthorisedly. As regards evicting the Plaintiff, statement of MHADA’s Adv. (as referred above) is sufficient. Therefore, the Defendant from dispossessing him without following provision under section 66(1) (b) of the MHADA Act. Accordingly, I answer issue No.7 in the negative. Suffice to say that MHADA is bound to resort to principles of natural justice prior to taking any action against the Plaintiff. 24. As discussed above, the Plaintiff is not entitled to any relief. However, that does not mean that MHADA is entitled to forcibly evict him. I, therefore, enquired with learned Adv. representing MHADA regarding procedure for eviction of the Plaintiff. She stated that MHADA will issue show cause notice, give reasonable opportunity -3- of being heard and then appropriate orders will passed. I must make it clear that the Plaintiff has mainly come with a case that he cannot be evicted without following due procedure under section 66 (1) (b) of MHADA Act. Therefore, the material controversy is whether MHADA is bound to resort to said provision. As such, MHADA is bound to follow principles of natural justice and then only take legal action against the Plaintiff." 4. The learned Judge has recorded the categorical assurance given by the Respondent that a show cause notice will be issued to the Appellant and after giving a reasonable opportunity to the appellant of being heard, appropriate orders will be passed. The learned Judge observed that the first Respondent is bound to follow the principles of natural justice before taking any action against the Appellant. There is no challenge by the first first Respondent to this part of the Judgment of the trial court. 5. Prayer clause (b) which is pressed into service is for perpetual injunction. Grant of relief of perpetual injunction is always discretionary. When the main grievance of the Appellant was that the Respondent was bound to follow the provisions of section 66 (1) (b) of the Maharashtra Housing and Area Development Act,1976 and when a solemn statement was made before the trial court that the Respondent will follow -4- the principles of natural justice and due process of law, there was every justification for the trial court to deny an equitable relief of perpetual injunction. The learned trial Judge has accepted the solemn statement made by the Respondent that due process of law will be following by the Respondent before evicting the Appellant. 6. In the circumstances, there is no merit in the Appeal. Subject to what is stated above, Appeal is dismissed with no order as to costs. 7. Civil Application No.269 of 2008 is disposed of in view of dismissal of the Appeal. 8. It is clarified that a reply, if any, by the Appellant is received by the Respondent to the show cause notice, it will be considered by the Respondent on its own merits. JUDGE JUDGE JUDGE