1 wp-6241.95 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6241 OF 1995 Kishore Shankar Gadkari .. Petitioner Vs Bombay housing and Area Development Board & Another. .. Respondents -- Shri C.M. Kothari for the Petitioner. -- CORAM : A.S.OKA, J. DATE : 30TH SEPTEMBER, 2010 ORAL JUDGMENT : . On 30th August, 2010, when this Petition was called out, none appeared for the 1st Respondent. Therefore, the Advocate for the Petitioner was directed to serve notice to the 1st Respondent. He states that accordingly notice has been duly served. Today, none appears for the Respondents. 2. With a view to appreciate the submissions made by the learned counsel appearing for the Petitioner, it will be necessary to briefly refer to the facts of the present case. The petitioner was in possession of a tenement No.113/3921 at Tilak Nagar, Chembur, Mumbai. By a communication dated 14th October, 1994, the Estate Manager of the 1st 2 wp-6241.95 Respondent informed the Petitioner that the said tenement standing in the name of the 3rd Respondent – Maharashtra State Textile Corporation Limited has been transferred to the Petitioner. The Petitioner was called upon to pay monthly rent to Manovaishwa Sanstha with effect from 1st May, 1994. 3. On 4th April, 1995, a show cause notice was issued by the 2nd Respondent to the Petitioner. It was alleged in the show cause notice that the 3rd Respondent has objected to regularization of the said tenement and has contended that the vacant possession of the tenement should be handed over to the Maharashtra State Textile Corporation ( 3rd Respondent ). It was stated in the show cause notice that the petitioner should submit an explanation as to why the order of regularization passed earlier should not be cancelled. The Petitioner filed a reply in which it was contended that the order of eviction has been already passed against the 3rd Respondent and that the 3rd Respondent has not challenged the said order. It was pointed out in the reply that there was a letter dated 18th March, 1994 sent by the 1st Respondent by which he was called upon to withdraw a suit filed by him in the City Civil Court at Mumbai and accordingly the suit was withdrawn. By the impugned order, the earlier order passed granting regularization in favour of the Petitioner has been cancelled on the ground that the No Objection Certificate of the 3rd Respondent was not submitted at the time of regularization and that the 3rd Respondent has expressed great displeasure on regularization of tenancy in the name of the Petitioner. 3 wp-6241.95 4. Learned counsel appearing for the Petitioner has pointed out that in fact an order of eviction was passed against the 3rd Respondent and that the 3rd Respondent had decided to surrender the said tenement. He invited attention of the Court to the communication dated 15th September, 1995 issued by the 3rd Respondent to the Petitioner recording its decision to surrender. He pointed out that the order of regularization has been cancelled only on the ground that No Objection Certificate of the 3rd Respondent has not been submitted and the 3rd Respondent has expressed a displeasure on regularization of the tenement in favour of the Petitioner. He, therefore, submitted that the impugned order is illegal and perverse. 5. I have given careful consideration to the submissions. It appears that the tenement in question was originally allotted to the 3rd Respondent and the 3rd Respondent allowed the Petitioner to occupy the same as the Petitioner was an employee of the 3rd Respondent. It appears that the proceedings for eviction were initiated under the provisions of the Bombay Housing Board Act, 1948 against the 3rd Respondent and an order of eviction was passed against the 3rd Respondent. The order of eviction was not challenged by the 3rd Respondent and in fact the order was challenged by the Petitioner by preferring an appeal before the Appellate Authority. The appeal was dismissed by the Appellate Authority by holding that the Petitioner himself admitted in the appeal that he had not entered into any agreement with the 3rd Respondent. The order of eviction was 4 wp-6241.95 passed on 31st July, 1976. Prior to that, the 3rd Respondent had communicated to the Petitioner its decision to surrender the premises. Admittedly, the 3rd Respondent did not challenge the order of eviction. 6. On 7th April, 1994, the Petitioner was called upon by the 1st Respondent to pay sale price of Rs.22,500/-, service charges and other dues of Rs.67,988/- upto 30th April, 1994. After giving adjustment of the amount of Rs.67,988/- paid by the Petitioner, a demand for balance amount of Rs. 23,800/- was made. Accordingly, the said amount was deposited by the Petitioner and receipt thereof has been annexed to the Petition. It is pointed out that on 14th October, 1994, further amount of Rs.31,779/- was paid by the Petitioner to the 1st Respondent. The Petitioner acted upon order an order of regularisation by paying the aforesaid amounts and by withdrawing the suit filed by him. 7. The order of regularization was passed in favour of the Petitioner has been cancelled essentially only on one ground namely that the No Objection Certificate of the 3rd Respondent was not submitted and the 3rd Respondent had expressed great displeasure on regularization order passed by the 1st Respondent. As stated earlier, the 3rd Respondent had already suffered an order of eviction which was not challenged by the 3rd Respondent. The order of regularization was passed by the 1st Respondent on 14th October, 1994. When the order of regularization was passed, there was already an order of eviction passed against the 3rd Respondent which 5 wp-6241.95 was confirmed in the appeal. Thus, the 3rd Respondent was not entitled to claim right, title and interest in respect of the said tenement. The 3rd Respondent has not chosen to appear in this Petition. Thus, the order of regularization passed in favour of the Petitioner could not have been cancelled on the ground that the No Objection Certificate of the 3rd Respondent was not produced and that the 3rd Respondent has expressed displeasure on account of order of regularization. The grounds on which the order of regularization was cancelled are completely irrelevant considering the facts of the case. Hence, the Petition must succeed and I pass the following order. O R D E R (a) The Writ Petition is allowed. (b) Rule is made absolute in terms of prayer clause (a). (c) No orders as to costs. (A.S.OKA, J)