1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 166 OF 2008 Ravi Nair, Plot No. 9 of Survey No. 287 (p) bearing CTS No. 29, Wireless Road, J.V.P.D. Scheme, Juhu, Mumbai 400 049. .. Petitioner. Vs. 1. Maharashtra Housing & Area Development Authority, Bandra, Mumbai. 2. Chief Executive Officer, Maharashtra Housing & Area Development Authority, Bandra, Mumbai. 3. Mr. Khotkar, Executive Engineer, Maharashtra Housing & Area Development Authority, Bandra, Mumbai. 2 4. Salunke, Police Sub Inspector, Juhu Police Station, Juhu, Mumbai 400 049. 5. The Sr. Inspector of Police, Juhu Police Station, Juhu, Mumbai 400 049. 6. Anjuman-e-Shiat-e-Ali, having thier address at Dadabhai Navroji Road, Badri Mahal, Mumbai - 400 001. 7. State of Maharashtra, Through the Office of the Government Pleader, High Court, Mumbai. .. Respondents. Mr. N.D. Deboo for the petitioner. Mr. G.W. Mattos, AGP., for Respondent / State. Mr. V.V. Joglekar i/by Pardiwala & Co. for respondent no.6. 3 CORAM : J. N. PATEL & SMT. R.P. SONDURBALDOTA, JJ DATE : 9TH SEPTEMBER, 2009 ORAL JUDGMENT (Per J.N. Patel, J. ) : 1. Heard the learned counsel for the parties. 2. Rule. Rule returnable forthwith. 3. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India for seeking a writ in the nature of certiorari or any other appropriate writ, order or directions to quash and set aside the order dated 12.2.2007 passed by respondent no. 6 by which the respondent no. 6 has allocated the subject land cancelling the allotment of the subject plot in favour of Parasmani Co-operative Housing Society (Proposed) and confirming the allotment made by order dated 19.5.1962 in favour of Dawoodi Bohra Community with a direction to hand over possession of the said land to Anjuman-e-Shiat-e-Ali Dawoodi Bohra Community. It is the case of the petitioner that Mr. Mahadeo Nair, father of the petitioner, has 4 been in possession of the subject land i.e. plot no. 6/11 along with his family prior to 1956. It is in the year 1962 that the father of the petitioner died and thereafter the petitioner and the other members of the family continued to reside on the said plot of land till 3.5.2007 when they were evicted by the officials of respondent no. 1. According to the petitioner, on 26.5.2004 he made an application to the Additional District Deputy Collector, Mumbai Suburban District, Bandra (East), Mumbai for assessing the land as non-agricultural as the subject plot of land was being used by the petitioner and his family members for residential as well as commercial purpose. In the said application it was specifically claimed that the land admeasuring 2977 sq. meters comprised in Survey No. 287, C.T.S. No. 29 of Village Vile Parle, Taluka Andheri is in possession and being used for commercial and residential purposes by the petitioner and, therefore, it was requested to levy N.A. assessment in his name. On this application being made, a Surveyor was deputed for inquiry and report by the Office of the Deputy Collector and it was found that the area of 612 sq. mtrs., built up area upon the said land is being used by the applicant for residential and 399 sq. mtrs. is being used for commercial and 1266 sq. mtrs., open land comprised in Survey No. 287 is being used by the applicant since 1972. It was also noted in the surveyor's report that the construction is without prior permission of the Collector under section 44 of the Maharashtra Land Revenue Code, 1966 and, therefore, the petitioner 5 is liable to pay penalty under section 45 of the Maharashtra Land Revenue Code, 1966. The petitioner had taken a plea that as he is not in sound financial position the penalty should be minimal which was taken into consideration and the land was assessed for non-agricultural purpose and the petitioner was directed to pay the fine amount 10 times the assessment value of annual commercial assessment as specified in the order. The order clearly records:- 1) That the Encroacher should pay N.A. Assessment at the above mentioned rate will the N.A. Rates are revised or the structure shall be removed by Municipality Demolition Squad of State Govt. or any other Govt. Body whichever is earlier. 2) This orders does not confirm any right, title or interest in the land in the Encroacher. 3) It is clarified that payment of N.A. Assessment and fine does not mean it is regularized u/s 47 (b) of M.L.R.C., 1966. 4) Occupant should pay N.A. Assessment to Tasildar (N.A.) Andheri. 6 4. It is the case of the petitioner that on 3.10.2002 he applied for allotment of the said land to respondent no. 1 but the respondent no. 1 did not take any decision in the matter. The petitioner again applied for allotment on 18.9.2006. Instead of considering the claim of the petitioner for allocation of the plot of land, by order dated 12.2.2007 respondent no. 2 allotted the land in favour of respondent no. 6. It is further submitted that on coming to know of the impugned order, the petitioner has approached this Court for seeking cancellation of the impugned order and other ancillary reliefs as prayed in the petition. 5. During the pendency of the petition, it appears that the petitioner came to be dispossessed of the subject land and, therefore, the petitioner took out Notice of Motion No. 270 of 2007 in the petition for seeking a declaration that the act of respondent nos. 1 to 6 in dispossessing the petitioner without following due process of law is illegal and, therefore, sought restitution of the same. The said notice of motion when called for hearing the petitioner sought permission to withdraw the same and accordingly on 28.8.2007 the Court passed the following order :- "The Notice of Motion is dismissed as withdrawn." Thereafter on 23.10.2007 the petitioner moved for clarification of the 7 said order by taking out a praecipe stating that the counsel had withdrawn the notice of motion while reserving his right to file a suit claiming the said reliefs and, therefore, by the second order dated 23.10.2007 it was clarified that the notice of motion is dismissed as withdrawn with liberty to the petitioner to file a suit claiming the said reliefs. 6. It is not disputed by the learned counsel for the petitioner that thereafter on the original side of the High court the petitioner has filed Suit No. 2417 of 2007 and the said suit is still pending. 7. The learned counsel for the petitioner submitted that right to shelter is now recognized as the fundamental right under Article 21 of the Constitution of India i.e., right to life and, therefore, the petitioner should not have been deprived of his possession of the plot by the authorities of Respondent No. 1 without following due process of law. 8. It is further contended that the right of the petitioner which he claims to be is that of an encroacher / occupant therefore, cannot be snatched away without taking recourse to law and the impugned order directly affects such a right vested in the petitioner whose father was in possession of the subject plot since the year 8 1956 and which possession continued with the petitioner after the death of his father. 9. The learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and others, reported in 1996 AIR SCW 4315 in which the Supreme Court has specifically spelt out that any statutory body and in the case of Ahemedabad Municipal Corporation the Corporation ought to have followed the rules of natural justice before removing the encroachment particularly in cases where persons are found to be in settled possession though they may be encroachers or tresspassers. 10. In reply to the petition, it is the contention of the respondent no. 1 that the plot came to be originally allotted to Dawoodi Bohra Community and in so far as the order dated 12.2.2007 is concerned which is passed by the Ministry Sub- Committee constituted under regulation 16 of the Maharashtra Housing & Area Development (Allotment of Land) Regulations, 1982. Regulation 16 of the Maharashtra Housing & Area Development (Disclosure of Land) Regulations, 1982 enables the government to issue directions to MHADA for allocation of land and, therefore, the petitioner has no right to claim allotment of the said land particularly when the said allocation has been made by the Ministry 9 Sub-Committee after taking into consideration that initially the land was allotted to Dawoodi Bohra Community vide letter dated 19.5.1962 and, therefore, the allotment order made by the Board in favour of Parasmani Co-operative Housing Society (Proposed) has been cancelled and the Executive Engineer Housing, Bandra Division/ Mumbai Board was directed to give possession of the said land to Anjuman-E-Shiat Ali Dawoodi Bohra Community. This itself goes to show that when the land was allotted in favour of Parasmani Co- operative Housing Society (Proposed) by the respondent Board, the petitioner did not raise any grievance in the matter or approached the State Government as it is at that point of time the petitioner had a cause of action if at all, he was claiming any right of allotment. The very order which came to be passed in favour of Parasmani Co-operative Housing Society (Proposed) depriving the petitioner of his claim or by implication his application for allotment was not considered. The petitioner did not even protest the allocation in favour of Parasmani Co-operative Housing Society (Proposed) but subsequently felt aggrieved when the allotment of the said plot of land to Parasmani Co-operative Housing Society (Proposed) came to be cancelled and the possession of the land was ordered to be given to Anjuman-E-Shiat Ali Dawoodi Bohra Community on the basis that by letter dated 19.5.1962 the Dawoodi Bohra Community has been allocated the land by the Respondent Commissioner which came to be confirmed by the Government. 10 Therefore, in so far as the relief claimed by the petitioner in respect of cancelling the impugned order is concerned, cannot be granted to him as the petitioner has no claim over the sid plot of land as of right and did not agitate his right when his application for allotment was not considered and the subject plot of land was allocated to Parasmani Co-operative Housing Society (Proposed). Thereafter the petitioner has no locus standi to challenge the cancellation of land to Parasmani Co-operative Housing Society (Proposed) and handing over its possession to Dawoodi Bohra Community by Respondent no. 1. Secondly, the grievance of the petitioner that he has been dispossessed of the land without following due process of law and in violation of Article 21 of the Constitution of India is concerned, the petitioner has already filed a suit under Section 6 of the Specific Relief Act which will be decided on its own merits. Therefore, it can be safely concluded that the petitioner gave up his right for seeking restoration of the possession of the land by withdrawing the notice of motion with liberty to file a suit. 11. We, therefore, do not find any merit in the petition. The same is dismissed with costs. Rule stands discharged. ( J. N. PATEL, J) (SMT. R.P. SONDURBALDOTA, J.)