1 14WP.1596-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1596 OF 2011 WITH CIVIL APPLICATION NO.405 OF 2011 Savita Vasudeo Natekar. ..Petitioner. Vs. Administrative Officer – III, Directorate of Construction, Services and Estate Management (Enforcement Section), Department of Atomic Energy, and Another. ..Respondents. .... Mr.N.J. Patil, i/b. Mr.Mohan Shetty, for the Petitioner. Mr.Girish Kulkarni a/w. Ms.Naveena Kumai, i/b. Jaydeep S. Deo, for Respondent Nos.1 & 2. .... CORAM : D. D. SINHA & A. R. JOSHI, JJ. DATED : 19th JULY, 2011 P.C. 1. Heard learned Counsel for the Petitioner and learned Counsel for the Respondents. 2. Writ Petition is directed against the order dated 25.1.2011 passed by the learned Judge of the Bombay City Civil Court, whereby the appeal filed by the petitioner under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [hereinafter referred as the said Act] against the eviction order dated 18.3.2010 passed by the Estate Officer PPD 2 14WP.1596-11 came to be dismissed. 3. Considered the contentions raised by the learned Counsel for the petitioner as well as the respondents. The relevant facts in the matter are as under : [i] The subject premises were alloted to Mr.D.T. Waghmare pursuant to the allotment letter dated 21.11.1978 being an employee of Respondent No.1; [ii] The allotment of the subject premises to Mr.D.T. Waghmare was made on certain terms and conditions. [iii] After the allotment to Mr.Waghmare, proposal was moved to the Government of India for transfer of the `Mandala Labour Tenament Colony Structure' to 'Lumbini Co-operative Housing Society'; [iv] Approval was granted by the President of India to the proposal for sale of the land admeasuring 9012 square meters along with 176 structures to the tenants through Lumbini Co-operative Housing Society; [v] The said decision was communicated to the occupants and necessary steps were taken for formation of the society; 3 14WP.1596-11 [vi] Mr.D.T. Waghmare deposited his share of the purchase price of Rs.2,730/- with the Department of Atomic Energy, Directorate of Estate Management on 3.9.1983, and resigned on 31.7.1986; [vii] The Estate Officer in 1987 issued a show cause notice to Mr.Waghmare under the provisions of the said Act on the ground of subletting the subject premises. After conducting the necessary enquiry, the eviction order was passed against Mr.Waghmare on 7.4.1989. However, the said order was not executed till this date. [viii] Mr.Waghmare inducted the husband of the petitioner in the subject premises as a sub-tenant on the basis of the purported transfer document. [ix] The society could not make payment of the full consideration and, therefore, the conveyance deed was not executed in favour of the society. In absence thereof the possession of the structure was with the Department. The transfer of ownership was to take place through the society only. 4 14WP.1596-11 4. In the backdrop of the above referred facts, the lower Appellate Court has observed that since there has been no conveyance of the property in favour of the society, only on the basis of the payment of some amount made by Mr.Waghmare to the Department, in the facts and circumstances of the case, would not render him or would not make him owner of the subject premises. The Department is the owner of the subject premises which are public premises. 5. Learned Counsel for the petitioner has submitted that Mr.Waghmare, on accepting Rs.6000/- from the husband of the petitioner executed affidavit dated 17.4.1986 and transferred the subject premises in favour of late husband of the petitioner. It is contended that however affidavit dated 17.4.1986 does not mention the fact of acceptance of Rs.6,000/- from the husband of the petitioner. 6. Learned Counsel for the petitioner has submitted that the petitioner has been put in possession of the subject premises after transferring the same in favour of late husband of the petitioner and since then the premises are in possession of the petitioner. It is submitted that even if there is no conveyance 5 14WP.1596-11 deed executed in favour of the society, however, that will not affect the rights of the petitioner who is put in possession of the subject premises by Mr.Waghmare after accepting Rs.6000/- and after transferring the subject premises in favour of the present petitioner herein. In order to substantiate this contention, decision of the Apex Court reported in (1999) 5 Supreme Court Cases 725 rendered in case of Veena Hasmukh Jain and Another V. State of Maharashtra and Others. It is submitted that in substance the Supreme Court has held that the agreement for sale of a flat plus delivery of possession is to be construed as a conveyance under Section 2(g) of the Bombay Stamp Act, 1958. 7. Before we consider the above referred contention canvassed by learned Counsel for the petitioner as well as the law and the decision of the Apex Court, it will be appropriate to peruse the order passed by the Estate Officer dated 18.3.2010 in the context of the above mentioned facts. Plain reading of the order of Estate Officer shows that the subject premises i.e. Room No.31, Labour Tenement Colony, Mandala, Mumbai was alloted to Mr.D.T. Waghmare by allotment order dated 27.11.1978. 6 14WP.1596-11 Para-17 of the Annexure `A' to the allotment order prohibits subletting of the premises or allowing a caretaker to take possession of the premises or to allow a Sub-licensee of his own to remain in possession of the licensed premises. It is further observed in the order passed by the Estate Officer that on physical verification of the subject premises by the Authorized Officials, it was noticed that the petitioner and her family members were in unauthorized occupation of the said public premises and, therefore, as per the provisions of Sub-Section (1) of Section 4 and clause (b)(ii) of Sub-section (2) of Section 4 of the said Act, issued notice to the petitioner who was called upon to appear before the Estate Officer for personal hearing on 22.1.2010. Pursuant to the said notice, a personal hearing was given to the petitioner on 22.1.2010 by the Chief Administrator & Estate Officer, Directorate of Construction Services & Estate Management. The petitioner attended the hearing with her son and Advocate Shri Mohan Shetty. The Estate Officer in the light of the above referred facts, passed an order of eviction dated 18.3.2010. Being aggrieved by the same, the petitioner filed an appeal before the Bombay City Civil Court which came to be 7 14WP.1596-11 dismissed by the impugned order and hence the present Petition. 8. In the instant case, there are two issues which need consideration, viz., (i) whether Mr.D.T. Waghmare could pass the right, title and ownership of the subject premises in favour of late husband of the petitioner, and (ii) what is the effect of breach of condition No.17 of the order of allotment dated 27.11.1978 by original allotee Mr.D.T. Waghmare. 9. So far as the first issue is concerned, it is not in dispute that the society in question did not pay the full consideration and, therefore, the conveyance deed could not be executed in favour of the society. In absence thereof, Mr.D.T. Waghmare though deposited his share of purchase price of Rs.2730/- with the Department of Atomic Energy, that itself, would not make him owner of the subject premises in absence of conveyance deed executed in favour of the Society. In the result, the transfer document alleged to have been executed by Mr.D.T. Waghmare in favour of the petitioner's husband shall not transfer right, title and interest of the subject premises in favour of late husband of the petitioner. And, therefore, the claim made by late husband of the petitioner as well as the petitioner herself, in our view, has 8 14WP.1596-11 rightly been disallowed by the Estate Officer as well as by the lower Appellate Court considering the scheme of the provisions of the said Act as well as in view of the facts and circumstances involved in the matter. 10. There is no quarrel with the decision and law declared by the Apex Court in case of Veena Hasmukh Jain (supra), however, in view of the facts and circumstances involved in the present case, which are completely distinct and different from the one involved in the said case, in our view, does not further the case of the petitioner. 11. In the instant case, there is neither agreement for sale placed on record executed between Mr.D.T. Waghmare and late husband of the petitioner, except affidavit dated 17.4.1986 of Mr.D.T. Waghmare which is placed on record and which is completely silent in respect of receipt of Rs.6000/- from late husband of the petitioner as consideration for sale of the subject premises. In these circumstances, the law declared by the Apex Court in the aforesaid decision is of no help to the petitioner herein. 12. The another issue regarding clause 17 of the allotment 9 14WP.1596-11 order is concerned, said clause 17 reads thus : “17. (a) Subletting with or without consideration or sharing of a residence or part thereof without prior permission is prohibited and will result in immediate eviction of the allottee without notice. (b) ........... ” 13. In the instant case, it is evident that Mr.D.T. Waghmare, for the reasons stated hereinabove, cannot be treated to be a owner of the subject premises and, therefore, though the subject premises was allotted to him vide allotment order dated 27.11.1978, he was bound by all the conditions of allotment – one of them was mentioned in Clause 17 which clearly prohibits subletting the subject premises with or without consideration or share of a residence or part thereof without prior permission of the Authorities, and if there is a breach of this condition it results in immediate eviction of the allottee without notice. 14. In the instant case, Mr.D.T. Waghmare violated condition No.17 by permitting the petitioner to occupy the premises without prior permission of the Authorities and, therefore, the action taken by the Estate Officer is not only in conformity with the provisions of the said Act but also in 10 14WP.1596-11 conformity with Clause 17 of the allotment order. 15. It is also not in dispute that Mr.Waghmare has given undertaking dated 3.9.1983, which is placed on record by the respondent. Perusal of the same would show that Mr.Waghmare has agreed to abide by the terms as mentioned below : “1) I shall remain member of the Co-op. Society 2) I shall not transfer transfer my membership to any other person without any express approval in writing from the Deptt. of Atomic Energy or proposed Lumbini Co-op. Society. 3) I shall not sub-let, mortgage the tenement without knowledge of the Department. 4) In case the Department on office bearers of proposed Lumbini Co-op. Housing Society shall notice that I am not staying in the premises and instead any other person is staying in the premises without express written permission from the Deptt. or office bearers of the proposed Lumbini Co-op. Housing Society, both Department and proposed Lumbini Co-op. Housing Society shall be at liberty to take such legal steps as deems fit against me and the unauthorized occupants for their eviction or otherwise as the premises occupied by me shall remain as public premises till it is conveyed to proposed Lumbini Co-op. Housing Society. In the abovesaid event, I admit that I shall forgo my right title interest in the premises or in any payments made by me on behalf of the Lumbini Co-op. Housing Society as it will amount to surrender of premises to the person not authorized by the Department of Atomic Energy.” 11 14WP.1596-11 16. The undertaking dated 3.9.1983 given by Mr.Waghmare clearly shows that he had agreed not to transfer any membership to any other person without express approval in writing from the Department of Atomic Energy or proposed Lumbini Co-operative Housing Society, not to sublet, mortgage and not to permit subject premises to be occupied by person other than the petitioner without express written permission from the Department. However, Mr.Waghmare did not honor the undertaking and, therefore, the action taken by the Estate Officer is also consistent with the undertaking given by the petitioner apart from the fact that it is sustainable in law. For the reason stated herein above, the impugned order passed by the Judge, City Civil Court confirming the order of the Estate Officer, in our view, is just and proper. 17. Petition suffers from lack of merits. Same is dismissed. Civil Application also stands disposed of. (D. D. SINHA, J.) (A. R. JOSHI, J.)