IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.494 OF 2007 OF MOTION NO.494 OF 2007 OF MOTION NO.494 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO.3036 OF 2006 PETITION NO.3036 OF 2006 PETITION NO.3036 OF 2006 IN IN IN CHAMBER CHAMBER CHAMBER SUMMONS NO.336 OF 2007 SUMMONS NO.336 OF 2007 SUMMONS NO.336 OF 2007 Aiman Ali Akbar Jalgaonkar ..Petitioner V/s. Mumbai Housing and Area Development Board & Ors. ..Respondents And Mr. H.M. Chandrashekar ..Applicant ....... Mr. R.V. Govilkar for the Petitioner Ms. Madhubala Kajale, AGP for Respondent Nos.1 to 3 Mr. V.M. Parshurami i/by Mr. Ashish S. Gaikwad for Applicants in CHS 336 of 2007 ....... CORAM CORAM CORAM : SHRI J.N.PATEL & : SHRI J.N.PATEL & : SHRI J.N.PATEL & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE : 4TH SEPTEMBER, 2008 : 4TH SEPTEMBER, 2008 : 4TH SEPTEMBER, 2008 P.C.: . Heard the learned counsel for the parties. Taking into consideration that the applicant has been allotted the subject tenement by MHADA after cancelling the allotment of the Petitioner, in our view the third party interest have been created in favour of the : 2 : Applicant, who is supposed to be allotted the subject tenement by MHADA. As per the draw of lottery for code No. 174 Category GP was held on 16-17/8/2004. The impeading of the applicant as party Respondent will have to be permitted. We, therefore, allow the Chamber Summons in terms of prayer clause (a). The Petitioner is directed to implead the applicant as party Respondent by carrying out necessary amendment within a period of two weeks. 2. This Court has admitted the Petition and continued the interim relief granted on 14.11.2006. The Court particularly observed that the pendency of the petition does not preclude the Respondent for reconsidering the claim of the Petitioner. 4. The Petitioner has taken out the Notice of Motion seeking direction of this Court against the Respondent-MHADA to consider the eligibility of the Petitioner for allotment of the tenement in question by scrutinizing the documents of subject tenement (Flat No.403, Building No.4A, under the Code No.174, GP Category at Oshiwara). In view of the liberty granted by this Court on 7th February, 2007, nothing prevents MHADA from scrutinizing the documents of the applicants. : 3 : In the meantime, on 29th July, 2008, the matter was taken up for hearing and it was felt by this Court that tenement is lying vacant, the parties may make their offer in respect of consideration of the flat so that in the meantime, the Petitioner or the applicant can be permitted to occupy the flat rather than keeping it vacant as it would result in detoriation of flat in question for want of maintenance. Accordingly, the learned counsel for the applicant (newly added Respondent) H.M. Chandrashekhar has tendered undertaking by giving an offer of depositing a sum of Rs.12 lakhs which is the approximate cost determined by MHADA of the said tenement and a Bank guarantee of Rs.18 lakhs to meet the market price as per the ready reckoner, if he is permitted to occupy the flat on the basis of the next allotee of the flat. The offer was also open to the Petitioner but according to the learned counsel for the Petitioner such a sum cannot be deposited for the reason that the Petitioner’s rights are yet to be determined and the Petitioner is not financially sound to compete with the Respondent and that the allotment of the subject tenement by MHADA to the Respondent is itself disputed. 5. In our view, in order to preserve the property, : 4 : it will be just and proper for this Court to appoint Director Marketing of MHADA as Court receiver of the subject tenement and permit the applicant (newly added Respondent - H.M. Chandrashekar) to occupy the flat in question on the terms and conditions given in the undertakings. We further make it clear that the applicant shall not claim any equity in the matter and if subsequently the Court finds that the cancellation of flat in favour of the Petitioner by MHADA was not in accordance with law, the applicant will handover peaceful and vacant possession of the subject tenement to the Court Receiver. 6. The amount of Rs.12 lakhs which the applicant has undertaken to pay to MHADA and also a Bank Guarantee of Rs.18 lakhs may be executed within the stipulated period. The learned counsel for the Petitioner submits that the Petitioner has already deposited 25% of the cost as per the terms and conditions, on which the allotment was made in his favour and atleast he may be permitted to withdraw the sum without prejudice to his right and contention. In our view, it will also be equitable to order the refund of 25% of the amount particularly when the MHADA has taken a stand that the Petitioner failed to comply with the terms and : 5 : conditions of the allotment after depositing 25% of the initial amount, his allotment has been cancelled. We, therefore, direct that after the applicant (newly added Respondent) H.M. Chandrashekar has complied with the undertaking and is put in possession of the subject tenement, MHADA is directed to return 25% of the amount to the Petitioner. 7. The undertaking given by the applicant (newly added Respondent) is accepted subject to the aforesaid order. The learned counsel for the Petitioner states that he would like to seek instructions from the Petitioner in the matter, whether he would like to challenge this interim arrangement and for that this Court may hold the interim order in abeyance for a period of six weeks. We, therefore, grant stay to the effect and operation of the order for a period of six weeks. Thereafter, parties will be free to act upon the order. The Petition to be heard expeditiously. 8. The Notice of Motion is disposed off accordingly. (J.N. (J.N. (J.N. Patel, J.) Patel, J.) Patel, J.) : 6 : (K.K. (K.K. (K.K. Tated, J.) Tated, J.) Tated, J.)