AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.661 OF 2009 Shiv Singh Komal Singh Yadav, Residing at – 202/17B, Customs Colony, Powai, Mumbai – 400 076. ) ) ) ... Petitioner Versus 1. The Director (Marketing), Maharashtra Housing and Area Development Board, Gruha Nirman Bhavan, MHADA, Kalanagar, Bandra (East), Mumbai – 400 051. ) ) ) ) ) ) 2. The Chief Executive Officer, Maharashtra Housing and Area Development Authority, Gruha Nirman Bhavan, Kalanagar, Bandra (East), Mumbai – 400 051. ) ) ) ) ) 3. Pooja Estate Consultant & Construction Co. through its Sole Proprietor of Shri Daji Krishna Zinjurte, Shop No.4, Building No. 11, Veer Savarkar Nagar, Opp. Powai lake, Powai, Mumbia – 400 076. ) ) ) ) ) ) ) 4. Powai Planet Co-operative Housing Society (Proposed) through its Chief Promoter Shri K.R. Kamath, 26/101, Garden View CHS, Next to Shantivan, Ext. of New Link Road, Andheri (West), Mumbai – 400 053. ) ) ) ) ) ) ) AJN 2 5. State of Maharashtra. ... Respondents Mr. S.S. Yadav, the petitioner in person. Mr. G.W. Mattows for respondents 1 and 2. Mr. P.J. Thorat for respondent 3. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 30TH SEPTEMBER, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 8TH OCTOBER, 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. In this petition filed under Article 226 of the Constitution of India, the petitioner has sought a direction to respondents 1, 2 and 4 to give vacant possession of flat No.1404 in Building No.23-B (for short, “the said flat”), Powai Planet Co-operative Housing Society (Proposed) in AJN 3 Scheme No.125 of Maharashtra Housing & Area Development Authority (for short, “MHADA”). Respondent 1 is an officer representing Maharashtra Housing & Area Development Board (for short, “the Board”). Respondent 2 is an officer representing MHADA, a statutory body formed and incorporated under the provisions of the Maharashtra Housing & Area Development Act, 1976 (for short, “the said Act”). Respondent 3 is the original petitioner in Writ Petition No.10243 of 2004, who is aggrieved by the allotment of 110 flats to respondent 4. 3. According to the petitioner, he approached the Chief Promoter of respondent 4 – Mr. Kamath for purchase of a flat. Mr. Kamath told him that respondent 4 had been allotted 110 flats in Building Nos.22 and 23 by MHADA under “Bulk Purchase Scheme”; that he is authorized to sell those flats to the public and that there are some vacant flats which the petitioner can book. According to the petitioner, he decided to purchase the said flat in the said Scheme after being satisfied by the assurances given AJN 4 to him regarding title, price and condition of the property. He paid to the respondents earnest money deposit of Rs. 1,51,810/- vide cheque No.146146 dated 16/2/2005. 4. It is the case of the petitioner that on payment of the said amount, he was allotted the said flat and a provisional offer letter dated 16/2/2005 was issued in the name of the petitioner incorporating terms and conditions of allotment and further payments. Consequent upon provisional letter of intent, the petitioner withdrew an amount of Rs.5,50,000/- from his GPF account and applied to the ICICI bank for a loan of Rs.10,00,000/- which was sanctioned by the said bank. According to the petitioner, he also borrowed some amount from his relatives and informed his employer i.e. Department of Indian Customs, Mumbai about the transaction and acquired requisite permission from his department. It is the case of the petitioner that he was and is always ready to abide by the terms and conditions of the allotment letter. We have no reason to disbelieve this case of the petitioner. AJN 5 5. The petitioner’s case further is that after issuance of the allotment letter, he approached respondent 4 for making further payments when he was informed that MHADA is not accepting further payment due to a judgment of this court. The petitioner wrote a letter dated 28/6/2005 to respondent 1 requesting him to accept the balance payment. He was shocked to receive a letter dated 27/6/2005 from respondent 1 saying that the allotment made in favour of the petitioner was cancelled due to a judgment passed by this court on 25/2/2005 whereby allotment of flats made in favour of respondent 4 was cancelled. The petitioner was told that he may take his money back from the office of MHADA. 6. According to the petitioner, he was not informed by MHADA that any litigation was pending when he booked the flat. If he was informed about the pending litigation, he would have booked a flat elsewhere. AJN 6 7. The petitioner has pointed out that respondent 3 i.e. Pooja Estate Consultant & Construction Company had filed Writ Petition No.10243 of 2004 in this court praying that allotment made in favour of respondent 4 i.e. Powai Planet Co-operative Housing Society (Proposed) be cancelled on the ground that it’s application for allotment of the flats was not considered though it was pending when allotment was made in favour of respondent 4. This court vide its judgment dated 25/2/2005 cancelled the allotment made in favour of respondent 4. The said judgment was challenged in the Supreme Court. By judgment and order dated 14/5/2007, the Supreme Court set aside the judgment of this court and remanded the petition to this court for fresh hearing. 8. In the meantime, the petitioner and five others had filed Writ Petition No.7668 of 2006 and other companion writ petitions challenging the cancellation of allotment letters issued in their favour. By judgment and order dated 4/8/2008, this court set aside the cancellation of AJN 7 allotment letters issued in favour of the petitioner and others. Thereafter, the petitioner wrote letter dated 20/8/2008 to the Board annexing thereto judgment of the Supreme Court dated 14/5/2007 and judgment of this court dated 4/8/2008, requesting the Board to accept the balance payment and give possession of the said flat. The petitioner sent a reminder to the Board. However, there is no response to the petitioner’s letters. It is in these circumstances that the petitioner has filed this writ petition seeking direction to respondents 1, 2 and 4 to give him vacant possession of the said flat. 9. The petitioner has appeared before us in person. He submitted that MHADA never informed him about the pending litigation and accepted money from him. Had he known about the litigation, he would not have put his hard earned money in booking the said flat. He pointed out that he had collected money by obtaining loan. He submitted that in any event, the Supreme Court has now set aside cancellation of letter of intent and provisional AJN 8 offer letter issued in favour of respondent 4 and this court had set aside cancellation of allotment of the said flat in his favour and, therefore, direction be given to allot the said flat to him. 10. We have also heard Mr. Mattos appearing for respondents 1 and 2. Mr. Mattos submitted that the petitioner and others, who had filed Writ Petition No.7668 of 2006 and other companion writ petitions have undoubtedly paid part of the purchase price. The deposited amount was offered to be refunded to them but they have refused to accept the same. Mr. Mattos submitted that vide letter dated 18/7/2005 respondent 4 sought refund of earnest money deposit of Rs.27,50,000/- paid by it as per provisional offer letter dated 17/11/2004 issued to it, which was cancelled by this court vide its order dated 25/2/2005. Mr. Mattos submitted that the said amount will be refunded in accordance with law. Mr. Mattos submitted that respondent 4 having sought refund of earnest money deposit, respondent 4 cannot claim any AJN 9 subsisting right in its’ favour pursuant to letter of intent dated 25/10/2004 and provisional offer letter dated 17/11/2004. He submitted that therefore the claim of the petitioner and others, who had filed writ petitions mentioned hereinabove, would not survive because they have made payment through respondent 4. Mr. Mattos submitted that therefore, the petitioner and others are not entitled to allotment of flats. 11. By a detailed judgment and order delivered on 8/10/2009, we have dismissed the petition filed by respondent 3 – Pooja Estate Consultant & Construction Company being Writ Petition No.10243 of 2004 praying that letter of intent dated 25/10/2004 and provisional offer letter dated 17/11/2004 issued in favour of respondent 4 be quashed and set aside. 12. So far as the petitioner’s claim that he is entitled to allotment of the said flat is concerned, that prayer will have to be granted because Writ Petition No.7668 of 2006 AJN 10 filed by the petitioner was disposed of by this court on 4/8/2008 holding that the cancellation of allotment of the said flat made in favour of the petitioner was illegal. This court observed that allotment made to the petitioner was cancelled solely on the ground that this court on 25/2/2005 in a dispute between the developers and MHADA had held that the MHADA could not allot flats in the building in question without issuing advertisement. This court observed that the petitioners therein were not parties to the said proceedings and the Supreme Court by its order dated 14/5/2007 reversed the said order dated 25/2/2005. This court further observed that since order dated 25/2/2005 on the basis of which the petitioner’s allotment order was cancelled, is set aside by the Supreme Court, the order of cancellation of allotment of the said flat in favour of the petitioner would not survive. In the circumstances, it was quashed. 13. Admittedly, judgment and order dated 4/8/2008 setting aside cancellation of allotment order issued in AJN 11 favour of the petitioner is not challenged by MHADA. In view of the said judgment, MHADA will have to allot the said flat to the petitioner because the petitioner has already deposited an amount of Rs.1,51,810/- with MHADA. The petitioner was always ready and willing to pay the remaining amount. It is MHADA who did not accept the amount. It must be borne in mind that the petitioner has raised the amount by taking loan. MHADA also did not inform him about the pending litigation when it accepted the amount from the petitioner. Being a public body, MHADA is expected to be fair in its dealings. We are informed that the case of the other five persons who had filed petitions along with the petitioner is similar. They have not filed petitions praying for a suitable direction to MHADA like the petitioner. We, therefore, cannot pass any order in favour of those persons. But if their case is similar, MHADA should consider giving them similar benefit. 14. We do not find any substance in Mr. Mattos’ AJN 12 submission that the petitioner and others paid the money through respondent 4; respondent 4 asked for refund of earnest money deposits paid by it to MHADA, therefore respondent 4 cannot claim any subsisting right in its favour pursuant to letter of intent dated 25/10/2004 and provisional offer letter dated 17/11/2004 and, therefore, claim of the petitioner would also not survive. We have already noted that we have dismissed the writ petition filed by respondent 3 challenging letter of intent dated 25/10/2004 and provisional offer letter dated 17/11/2004. But we have refrained from expressing any opinion as to whether in view of passage of time or change in circumstances, MHADA can sell rest of the flats by issuing fresh advertisement or by any other mode and whether any subsisting right exists in favour of respondent 4 pursuant to the said letter of intent and the said provisional offer letter. We have stated that these submissions involve alleged legal rights of the parties based on several disputed facts which cannot be decided in writ jurisdiction. Even otherwise, it is not possible for AJN 13 us to hold that the petitioner's right to allotment is dependent on the rights which respondent 4 is claiming through the said letter of intent and provisional offer letter. The case of the petitioner and five others who had filed writ petitions in this court stands on a different footing from that of respondent 4 on account of facts which we have stated in detail hereinabove. This submission is, therefore, rejected. 15. In the circumstances, we direct MHADA to give vacant possession of the said flat to the petitioner after accepting the balance purchase price in accordance with law. 16. We are informed by Mr. Mattos that as per rules, MHADA may have to charge some interest. The petitioner has denied this submission. The petitioner has informed us that for a long period a stay order was in operation and, therefore, in any case, no interest can be charged for that period. In this connection, he has relied on the AJN 14 judgment of the Supreme Court in Ghaziabad Development Authority v. Balbir Singh, (2005) 9 SCC 573. 17. On this aspect, we do not want to express any opinion. But should the question of interest arise we expect MHADA to take into account all relevant aspects including operation of stay order, if any, and take appropriate decision sympathetically considering the fact that for no fault of his, on account of pending litigation, the petitioner was put to inconvenience. We expect MHADA to complete the entire exercise of allotment within a period of three months from the date of this judgment. 18. The petition is disposed of. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]