1 Second Appeal No. 261 of 98 HIGH COURT OF MADHYA PRADESH, BENCH INDORE (Single Bench : Hon'ble Shri M. C. Garg, J. ) ____________ Second Appeal No.261 /1998 1. Smt. Kamlabai wd/o Manilal Mehta aged 66 yrs; house wife; resident of Ratlam, Distt. Ratlam 2. Vinod Kumar son of late Manilal Mehta aged 33 yrs; occupation service; resident of Ratlam; 3. Devendra Kumar son of late Manilal Mehta aged 30 yrs; occupation service; resident of Mandsaur (MP); Vs. 1. MP Housing Board through President, 2.Commissioner, MP Housing Board Arera Colony, Bhopal; 3.Dy. Commissioner, Arera Colony, Bhopal; 4.Executive Engineer Jawahar Nagar Ratlam; 5.Estate Manager, MP Housing Board, Indore 6. Kailash Chandra son of Jankilal Patodiya aged 50 yrs; occupation service; resident of Jawahar Nagar, Ratlam 7.Smt. Urmila wife of Prafulkumar Shah aged 47 yrs; r/o 2,Subhash Marg, Indore, 8.Ku.Tarulata d/o late Shri Manilal Mehta aged 40 yrs; resident of Sitlamata Gali Ratlam; 9.Ku. Kalpana d/o late Manilal Mehta aged 38 yrs; resident of Ratlam; 10.Ku. Tarun d/o late Manilal Mehta aged 35 yrs; resident of Ratlam. _________________________________________________________________ Mr. LR Bhatnagar, learned counsel for Appellants. Mr. Sunil Jain, learned counsel for the respondents no. 1 to 5. Mr. Sandeep Kochatta, learned counsel for respondent no.6. _________________________________________________________________ JUDGMENT ( Delivered on this 14th day of November, 2011) This second appeal arises out of the judgment and decree dated 10.3.98 passed by IIIrd Addl. District Judge, 2 Second Appeal No. 261 of 98 Ratlam in having reversed the judgment and decree dated 24.11.95 of the court of ivth Civil Judge Class, II passed in civil suit no.24A of 1981 whereby the appellant /plaintiff (deceased) Manilal sought a declaration cancellation of allotment of house no.64 situated at Jawahar Nagar, Ratlam with respect to his allotment of the said house and the allotment thereof made in favour of respondent no.6 which was illegal and further for declaration that the appellant being the allottee of the house in question as an industrial employee continues to be valid and further from restraining respondents no.1 to 5 to take any adverse action against the plaintiff/appellant. 2. The judgment dated 10.3.98 of the Ist appellate court has been delivered jointly with respect to the appeals filed by respondent no.6 and by respondents no.1 to 5 being appeal no.14A of 96 and no.7A of 96. Against the judgment of 1st appellate court, the Lrs of Manilal has filed this second appeal under sec.100 of CPC. The appeal has been admitted for regular hearing on the following substantial questions of law framed on 25.11.99:- 1. Whether in the facts and circumstances of the case the quarter no.64 would be transferred to respondent no.6 without issuing notice to the appellant without following procedure required by section 55 and Section 2 (17) of the MP Greha Nirman Mandal Adhiniyam, 1972 by the official who was not qualified to do so ? 2. Whether in the facts and circumstances of the case Ex. D.1 was applicable to the premises and the appellant at the relevant time? 3. I have heard learned counsel for the parties and perused the record. 4. Mr. Sunil Jain, Learned counsel appearing for respondents no.1 to 5 fairly concedes that according to the record, no notice was issued to the appellant as required under sec.55 (1) & (2) of MP Greha Nirman Mandal Adhiniyam, 1972 upon the appellant ( deceased) or the Lrs, which is a precondition for taking further action. For the sake of reference 3 Second Appeal No. 261 of 98 the relevant section is reproduced hereunder:- “55. Power to evict certain persons from Board premises:- (1) Notwithstanding any thing to the contrary contained in any other law for the time being in force if the competent authority is satisfied:- (a) that the person authorised to occupy any Board premises has:- (i) not paid rent lawfully due from him in respect of such premises for a period more than two months, or xxx xxx xxx (ii) sublet without the permission of the Board the whole or any part of such premises, or (iii) otherwise acted in contravention of any of the terms under which he is authorised to occupy such premises, or xxxx xxx xxx the competent authority may, by notice served in the manner laid down in section 89 or 90, order that the person authorised to occupy as well as any other person who may be in occupation of the whole or any part of the said premises shall vacate them within one month of the date of the service of the notice; (2) Before an order under sub- section (1) is made against any person, the competent authority shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any and to show cause why such order should be made within a period to be specified in such notice. Xxx xxxx xxxx 5. A bare perusal of sub-sec.(2) and sec.(i) (a) & (ii) of section 55 of the Adhiniyam, 1972 shows that it was mandatory upon the respondents MP Housing Board to issue a show cause notice upon the appellant Manilal regarding alleged sub-letting to respondent no.6 and it was only thereafter they ought to have taken any further action such as calling upon the sub-letee as well as the owner of the premises which has not been done and have allotted the suit house to respondent no.6 without hearing the plaintiff appellant Manilal. 6. Learned counsel appearing for respondents MP Housing Board that appellant deceased could have brought all these facts to the notice of the appellate authority under sec.57 4 Second Appeal No. 261 of 98 (2) of the Adhiniyam,1972 and therefore if such an appeal would have filed, the appellate authority would taken care of. The civil suit was therefore not maintainable. 7. The aforesaid submission of the learned counsel has no force in view of section 55 (2) referred above, The respondent board has not followed the mandatory provisions of the Adhiniyam. It would be therefore appropriate and in the interest of justice to direct respondents no.1 to 5 to proceed against Lrs of Manilal in accordance with sec.55 of the Adhiniyam,1972. It is only after hearing the Lrs of Manilal and respondent no.6, the respondent Housing Board will take appropriate action which means that till a decision is taken on the subject after hearing the parties, the order of cancellation of the house in question in favour of late Manilal Mehta would remain in abeyance. 8. With the aforesaid observations, the judgment and decree of 1st appellate court as well as that of the Trial Court are hereby set aside. The respondent Housing Board will now pass a fresh order regarding fate of the house in favour of Lrs of Manilal and respondent no.6 after initiating proceedings under sec. 55 of the Adhiniyam, 72. The needful be done within six months hereof. No order as to costs. ( M. C. Garg, J. ) Dlr/