1 CA 2103/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2103 OF 2010 IN WRIT PETITION NO. 3886 OF 2010 Ami Merchandising Pvt. Ltd. .. Petitioner V/s State of Maharashtra & Ors. .. Respondents And Mrs. Sudha Agarwal .. Applicant ... Mr. Y.S. Jahagirdar with Mr. B. D’Souza i/b Malvi Ranchiddas & Co. for the petitioner. Mr. Cyrus Ardeshir with Ms. Pooja Patil and Mr. Punit Damodar i/b Kanga & Co. for respondent nos.4 and 5. Mr. Rishabh Shah with Mr. Amit Jajoo and Mr. A. Chaturvedi i/b Paras Kuhad & Associates for the applicant/intervener. CORAM : D.G. KARNIK, J. DATE : 13TH AUGUST 2010 P.C. : 1. By this civil application, the applicant prays for being impleaded as a respondent to the writ petition. 2 CA 2103/10 2. Respondent nos.4 and 5 are the licensors and the petitioner is the licensee of the suit premises. Respondent nos.4 and 5 filed an application under section 24 of the Maharashtra Rent Control Act for eviction of the petitioner, in which an order for eviction was passed by the Competent Authority and was confirmed in Revision by the Additional Commissioner, Konkan Division, by an order dated 5 March 2010. It appears that the order was executed forthwith and the petitioner was dispossessed on or about 8 March 2010. The petitioner thereafter filed a petition (W.P No.3886 of 2010) challenging the order of the Competent Authority as well as the Revisional Authority. By consent of the parties, it was agreed that the writ petition be heard finally at the stage of admission itself. At the hearing of the petition, Mr. Jahagirdar, learned Senior Advocate appearing for the petitioner, submitted that the order for delivery of possession was executed high handedly and executed with the police help without following the due procedure of law. He further submitted that under section 45 of the Maharashtra Rent Control Act, an order for eviction could be executed only after expiry of 30 days of the order becoming final. Since the order was passed by the Revisional Authority on 5 March 2010 it could not have been executed earlier than 5 April 2010. But the order was executed and the petitioner was dispossessed with the help 3 CA 2103/10 of the police on 8 March 2010 itself. Thereupon, Mr. Aspi Chenoy, learned Senior Advocate on instructions of Mr. Vijay Agarwal (brother of respondent no.4) who was present in the Court gave an undertaking that irrespective of the decision of the petition the respondent nos.4 and 5 would hand over the possession of the suit premises to the petitioner. He further stated that the licensee (the applicant herein), who was inducted during the pendency of the writ petition would also give a similar undertaking but sought time to file written undertaking which was granted. On the next date an oral request was made to extend the time on the ground that though the undertaking of the respondent nos.4 and 5 was ready the licensee (present applicant) was not available. Subsequently, respondent nos.4 and 5 resiled from their position and declined to file undertaking. Accordingly, the writ petition was posted for hearing when present civil application was made by the applicant for joining her as a party to the writ petition. 3. During the course of his argument, Mr. Shah, learned counsel for the applicant stated that the applicant is a family member of the respondent nos.4 and 5 and when asked about the relationship, he submitted that the applicant is the mother of respondent no.5 and she is also the wife of the brother of 4 CA 2103/10 respondent no.4. Prima facie, it appears that there is a collusion between the present applicant and the respondent nos.4 & 5 who want to resile from oral undertaking given to the Court. Be that as it may, I am inclined to consider the request of the applicant to permit her to intervene and address the Court but without being formally joined as a party to the writ petition. This is because being a transferee during the pendency of the writ petition the transaction (assuming it to be a transfer) would be hit by section 52 of the Transfer of Property Act. 4. Learned counsel for the applicant inviting my attention to the decisions of the Supreme Court in (i) Bhagwati v. Subordinate Services Selection Board, 1995 Supp. (2) SCC 663, (ii) Ishwar Singh v. Kuldip Singh, 1995 Supp. (1) SCC 179, and (iii) Sadhu Bhagwandas Durlabhram v. Udaykumar H. Dave, (2006) 9 SCC 599, submitted that the applicant is a necessary party to the writ petition. In the case of Bhagwati (supra), the question before the Supreme Court was that whether the High Court could have set aside the selection made by the Subordinate Selection Board at the instance of the petitioner in a petition in which the selected candidates were not the parties. The Supreme Court held that the High Court could not have set aside the selection without hearing the selected candidates. In the case of Iswar Singh 5 CA 2103/10 (supra), the Supreme Court held that since the selected candidates were not impleaded as parties to the petition, the High Court could not have quashed and set aside the selection. In the case of Sadhu Bhagwandas (Supra), also the decision of the High Court set aside the order on the ground that the persons likely to be affected were not made parties to the writ petition and were not given opportunity to address the Court. The common theme of all the three decision of the Supreme Court cited before me is that the persons affected should have been heard and the High Court could not have passed the orders affecting their right without granting them an opportunity of hearing. As held earlier, I am inclined to grant the applicant an opportunity to intervene and opportunity of hearing in the matter. She however is not a necessary party to the writ petition inasmuch as she was not a party to the original proceedings for eviction and all that she claims is the right (assuming that license creates a right or interest in the property, which in law it does not) she has acquired during the pendency of the writ petition which, prima facie, appears to be hit by section 52 of the Transfer of Property Act. 5. In the circumstances, the civil application is partially allowed. The applicant is allowed to intervene and address the 6 CA 2103/10 Court without being formally joined as a party respondent to the writ petition. (D.G. KARNIK, J.)