SSK/919 1 WP/4362.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4362 OF 2011 Manohar Umaji Rane ....Petitioner Versus The Estate Officer_I & Ors. ...Respondents Mr.Prabhavalkar i/b. Ms. Dipashri Raorane, Advocate for the petitioner. Mr. P. G. Lad, Advocate for Respondent No.1. Ms. Aparna Murlidharan, Advocate for MHADA. CORAM : RANJIT MORE, J. DATED : 29th SEPTEMBER, 2011. P.C.: Mr. Prabhavalkar, at the outset, seeks leave to delete the names of respondent nos. 2 & 3. Leave is granted at his own risk. Necessary amendment to be carried out within a period of one week from today. 2. Heard Mr.Prabhavalkar and Mr.Lad, learned counsel appearing for the petitioner and respondent no.1 respectively. 3. The writ petition arises out of eviction proceedings on account of alleged unauthorized occupation. The petitioner is a monthly tenant of tenement bearing no.25/B-406, Majaswadi, Jogeshwari, Mumbai. In the SSK/919 2 WP/4362.11 year 1998, the petitioner was working as Conductor with the BEST Undertaking. He was alloted quarters at Parel. It is the case of the petitioner that though he was residing in service quarters, his other family members were residing in the tenement alloted by MHADA. MHADA, on the contrary, alleges that the petitioner along with his family members was at the relevant time, residing in his service quarters and MHADA’s tenement was given to Mr. Bharat and Sheetal Rathod on leave and license basis. 2. In the above circumstances, the 1st respondent initiated eviction proceedings i.e. Case No.35 of 2000 against the petitioner before the Competent Authority-1. This case was dismissed as neither the petitioner nor respondent no.1 appeared on 14th November, 2000. The 1st respondent, thereafter, took out Restoration Application under Order 9 Rule 9 for setting aside the ex-parte order dismissing Case No.35 of 2000. On 4th December, 2000, the Competent Authority allowed the 1st respondent’s application and Case No.35 of 2000 was restored to file and fresh notices were directed to be issued to the parties. 3. It is the specific case of Mr. Prabhavalkar, learned counsel for the petitioner that neither the petitioner was aware nor he was served, and therefore, the petitioner was not aware about the application for restoration SSK/919 3 WP/4362.11 filed by the 1st respondent. He submits that after restoration, the petitioner was not served, and therefore, the order of the Competent Authority is vitiated. 4. Mr. Lad, learend counsel for respondent no.1, on the contrary, supports the impugned order. He submits that in the inquiry, it was found that Mr.Bharat and Sheetal Rathod were staying in the premises alloted to the petitioner. It was also found that they are still residing there on leave and license basis. He further submits that the petitioner has breached the condition of allotment, and therefore, he is liable to be evicted. He also submits that subsequent to the restoration order, the petitioner was served twice on 18.01.2001 and 28.05.2001 by affixing. He has produced copies of the panchanama to that effect. He lastly submitted that no interference is called for in the writ petition. 5. Having considered the rival submissions and having gone through the compilation of the petition along with the annexures thereto, I find merit in the petition. In Paragraph No.2, page 19, the Competent Authority has observed that the petitioner is served on 12.06.2000. So far as service dated 12.06.2000 is concerned, same is not disputed. The original application for eviction was dismissed on 14.11.2000, and thereafter, on 4th December, 2000, the respondent no.1 was constrained SSK/919 4 WP/4362.11 to file restoration application for setting aside that order. The restoration application was allowed by the Competent Authority by passing the order on the same day. Thus, it is evident that the petitioner was not heard before setting aside the order of dismissal. The Competent Authority, therefore, directed issuance of fresh notices to the petitioner as well as to the respondent. 6. As stated above, Mr.Prabhavalkar, learned counsel, contends that the petitioner was never served after the respondent’s Case No.35 of 2000 was restored to the file. Mr. Lad, learned counsel, however, asserts that the petitioner was served twice by affixing and panchanama to that effect was recorded in writing. In any case, the question, whether the petitioner was served properly subsequent to the restoration order dated 4th December, 2000 is not adverted to by the Competent Authority. The Competent Authority refers to service on the petitioner on 12.06.2000. However, he has not recorded any finding as to whether the petitioner is served subsequent to the restoration of the original application for eviction. The fact remains that the order of the Competent Authority is ex-parte. In these facts and circumstances of the case, I am of the opinion that the petitioner deserves to be given an opportunity to put forth his case on merits before the Competent Authority. The petition is, therefore, disposed of by passing the following order : SSK/919 5 WP/4362.11 1. The impugned order passed by the Competent Authority on 25th June, 2003 in Case No.35 of 2000 as confirmed by the Appellate Authority in Appeal No.21 of 2003 on 28th April, 2011 is quashed and set-aside. The matter is remanded to the Competent Authority No.1-MHADA to decide the eviction proceedings against the petitioner. 2. The Competent Authority No.1 shall decide the said case independently, on its own merits, as expeditiously as possible and after giving an opportunity to the petitioner as well as to the respondent. 7. Mr. Prabhavalkar and Mr. Lad, learned counsel appearing for the respective parties state that their clients will approach the Competent Authority on 17th October, 2011 at 11.00 a.m. for reporting compliance. (RANJIT MORE, J.)