:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 618 OF 2008 Dilip D.Sheth ...Petitioner Versus The Administrator General, Maharashtra State, Mumbai & Ors. ....Respondents ====== Mr.P.S.Dani i/by, Mr.Dharam F.Sharma Adv. for the petitioners. Mr.Kirit J. Hakani, Adv. for respondent no.1. Mr.Udayan S. Jain with Mr.Mayank Pandya for respondent nos.2 to 4. Mr.Shashi Jain with Mr.N.Desai for Respondent no.5. CORAM: S.C.DHARMADHIKARI, J. DATED: 27TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. By this petition under Article 226 and 227 of the Constitution of India, the petitioner is challenging an order passed by the Administrator General, Maharashtra State, Mumbai. :2: :2: :2: 2. It appears that one Bharat Purshottam Gandhi who has been impleaded as Respondent no.4 to this writ petition filed an Application against the petitioner before the Administrator General, Maharashtra State, Mumbai. The said Bharat purported to invoke the jurisdiction of the Administrator General under the Adminstrators-General Act, 1963 as amended by Act 12 of 2002. In the Application, the said Bharat claimed to be the co-owner/landlord of the building, more particularly, described in para (1) of the impugned order and prayed that possession of Flat No.8 which belonged to the deceased Nalin Sheth be taken by the Administrator General. The Administrator General has allowed this Application and that is how the Affected party/Original Respondent Dilip D.Sheth is invoking the writ jurisdiction of this court. 3. Mr.Dani, learned counsel appearing for the petitioner contended that the Administrator Generals’ order is wholly without jurisdiction and has no basis in law. The said order is vitiated by an error apparent on the face of the record in as much as the Administrator General had no power, much less, under :3: :3: :3: Section 9 and 30 of the Act, enabling or authorising him to take possession of the subject property. Additionally, he submits that the petitioner has filed a suit in the Court of Small Causes at Bombay and details pertaining to which have been referred to in the impugned order. Mr.Dani, submits that it is not as if the Administrator General is unaware of the pendency of the suit but has proceeded to exercise virtually police powers of forcibly dispossessing the petitioner and that too at the instance of the alleged co-owner/landlord of the property. Mr.Dani, submits that, if these state of affairs are allowed to continue, the adjudication of rights pertaining to properties, which are left behind by a Deceased would be taken out of the purview of a competent court of law and usurped by the Administrator General. This is wholly impermissible. He submits that disputes of the present nature are to be brought before a court of law for adjudication and decision. No Agency or outsider can enter this arena and take upon itself the task which is to be performed by the Judiciary. Mr.Dani, submits that at the root of the entire controversy and at the stake is this aspect. If this court were not to :4: :4: :4: interfere with the impugned order, then, the Administrator General and every such Authority will be emboldened to take upon itself such function and power which will have the effect of completely destroying the Rule of Law. 4. I find much substance in the contention of Mr.Dani. The Administrator General has filed an Affidavit and Mr.Hakani was at pains to point out that the power under the Administrator Generals’ Act and more particularly Section 29 and Section 35 would go to show that the Administrator General can pass the order impugned in this petition without seeking any directions from the court. In other words, he justifies the act of the Administrator General intervening in this dispute which is pending before a court of law. 5. The original Applicant before the Administrator General through his counsel submits that the Administrator General was approached so as to safeguard and protect the property which has been encroached upon illegally by the petitioner. In his :5: :5: :5: submission, the deceased was not occupying the premises. However, he was the owner thereof. The Applicant (Respondent no.4) is the Joint owner alongwith the Deceased. Once this is the admitted position, then, the petitioner cannot complain at all. The intervention of the Administrator General is for protecting the property. However, now,the petitioner is claiming rights in respect of Two flats which are inter-connected and there is a common door between the same. The petitioner has usurped rights of the Original Applicant before the Administrator General and the co-owner and that is why the intervention of the Administrator General was sought in this case. 6. It is not necessary to decide any wider issues. However, it would be convenient to refer to the Administrators-General Act, 1963 for a limited purpose. This is an Act to consolidate and amend the law relating to the office and duties of the Administrator-General. The appointment of the Administrator-General and his powers are set out in Chapter II and III. Chapter III sets out the Rights, powers and duties and Section 6 points out that the :6: :6: :6: High court shall be deemed to be a Court of competent jurisdiction for the purpose of granting probate or letters of Administration under any law for the time being in force. The court’s jurisdiction is not affected in any manner instead the Administrator General is entitled to apply for such letters, unless granted to next-of-kin. The term next-of-kin is defined under Section 2(c) and reads thus :- "2. Definition - In this Act, unless the context otherwise requires.- (c) "next-of-kin" includes a widower or widow of a deceased person, or any other person who by law would be entitled to letters of administration in preference to a creditor or legatee of the deceased; and " 7. The Administrator General has a right to apply for administration of Estate and that is a matter dealt with by Section 9. There is much substance in the contention of the petitioner that the Administrator General has to approach this court and take such directions as are permissible under Section 9 and 10 of the Act. Sub-section 2 of Section 10 provides for this court’s order empowering the Administrator General to perform the Acts which are enlisted in Sub-Clause (a) :7: :7: :7: to (d). I cannot read this provision as one conferring jurisdiction on the Administrator General to pass impugned order. 8. The other provision which is referred to is to be found in Chapter IV and that is a power of the Administrator General, which grants Certificate. A bare perusal of Section 29 and 30 would go to show that beyond issuing the said Certificate, the Administrator General cannot do anything more, much less pass an order of the nature impugned and passed in this case. 9. The Administrator General in this case has proceeded thus :- "(v) Perused the entire proceedings and heard both the parties at length through their learned Advocates. (a) Based on the earlier application of the Applicant herein of dated the 15th November, 2007; the letter was issued by the office to the Senior Inspector of Police, Matunga (East) Police Station, Mumbai on the 16th day of December, 2007 requesting to take charge of the suit premises as per the provisions of Section 82 of the Bombay Police Act, 1951 and hand over the same with Panchanama etc, to this office for further action as per the provisions of Section 83 of the said Act. :8: :8: :8: However, for the best reasons known to them, the Police had not taken any cognizance of the matter and the report has not been submitted till date. (b) However, the reasoned order dated the 19th day of December, 2007 vacating the status quo granted earlier has been passed by the Hon’ble Small Causes Court. The said order of the Trial Court speaks in volume. The Trial Court held that the deceased was in exclusive possession of the suit premises. The possession of the respondent abovenamed (the plaintiff therein) is not the settled possession but the same has been acquired illegally without following the due process of law. The other heirs were not impleaded as party defendants and hence the suit is bad for non-joinder of necessary parties. Considering the above facts in detail, the Trial Court vacated the status-quo by reasoned order dated the 19th December, 2007 which was granted earlier by ex-parte order in the absence of the defendants. (c) It is admitted fact that the deceased was Hindu and thus governed by the provisions of the Hindu Succession Act, 1956. It is also admitted fact that the deceased died as a Bachelor and intestate. The Respondent herein is claiming to be the nephew/heir of the deceased. However, till date neither he has obtained the Letters of Administration and/or Succession Certificate. No other claimants have come forward till date except the parties herein. (d) The approach of the Respondent, as is observed, is to get exclusive possession of the Suit premises. Therefore, though the office had not communicated with him earlier, he himself through his Advocate intimated :9: :9: :9: about the order of status-quo in respect of the suit premises, due to which no action was initiated by the office till date. (e) No doubt the Appeal is preferred by the Respondent against the order of the Trial Court. However, till that time, the property of the deceased Nalin Sheth is being usurped by the respondent herein. " (f) Considering the facts in this matter, to my mind, the property of the decease Nalin Sheth could be misappropriated, damaged, deteriorated and/or wasted and moreover, there are chances that the rights of all the other legal heirs of deceased may be deprived of. Under the circumstances, to my mind, an intervention of the Administrator General is necessary with a view to avoid any misappropriation, damage, deterioration and/or waste and to protect the rights of all the surviving heirs of the deceased Shri Nalin Sheth. (g)The suit premises is the tenanted premises and the rent for hundred months @ Rs.116.60 is about Rs.11660/- and thus is within the pecuniary limits of the Administrator General of Maharashtra as per the provisions of Administrator General Act 1963 amended by Act 12 of 2002 and the rules framed thereto. Hence, to my mind, the applications of the applicant dated, 15th November, 2007 and 21st January, 2008 are to be allowed; Order accordingly. O R D E R (i) the application of the applicant herein of dated the 15th November, 2007 and 21st January, 2008 are hereby allowed. :10: :10: :10: (ii) the office is hereby directed to administer the estate of the deceased Shri Nalin Sheth. (iii) the respondent is hereby directed to hand over the possession of the suit premises being Flat No.8 situated on the 1st floor of Jitendra Building, 578-A, Jame Jamshed Road, Matunga (East), Mumbai-400 019 and other moveable/immoveable property of the deceased, on the 31st day of January, 2008 on or before 11.00 a.m. to the office of the Administrator General of Maharashtra; failing which the Office will take possession. " 1O. The Administrator General directed the petitioner to hand over possession of the Suit Flat to the Office of the Administrator General alongwith other immovable properties, failing which the Administrator General’s office will take possession of, is the further direction. This direction was stayed by me. The Administrator General in the impugned order has referred to the police complaints and order dated 19.12.2007 passed by the Small Causes Court in R.A.D.Suit No.1882 of 2007. The case of the said Applicant was that the petitioner has illegally entered into the premises. He claims possession on the basis that he is the heir and legal representative of the deceased Nalin Sheth. A reference is made to the :11: :11: :11: R.A.D.Suit No.1882 of 2007 filed by the petitioner which is pending. A reference is also made to the interim proceedings and order therein. It is in such circumstances, that the Administrator General’s intervention was sought. Apart from the fact that the Administrator General has over-reached his authority and power, he has acted without seeking any directions from any court including the Small Causes Court where the lis is pending. If the Trial Court’s order results in a situation where the petitioner allegedly cannot continue in occupation or use, according to the respondents before me, then, the remedy of Respondent no.4 is to take recourse to law. The law of the land permits them to institute proceedings for putting an end to the rights of the petitioner and apply for appropriate reliefs including seeking court’s assistance to protect and safeguard the property. Once they did not resort to the law, but, approached the Administrator General,then, this is nothing but a shortcut for by-passing legal process. The Administrator General should not have entertained such a request. The least that was expected from him was respect to the court and rule of law. Unless and :12: :12: :12: until, a situation had arisen in his opinion, where the property does not belong to anybody and none is coming ahead to claim the same, or the situation otherwise permits him to seek directions from the court of law, He could not have approached the competent court on behalf of the Respondent no.4 or suo-moto. He cannot adjudicate upon the matter as he has no powers like a court of law. It is this aspect which is disturbing. The Administrator General has virtually non-suited the petitioner. He is aware that the petitioner has filed an Appeal against the refusal of the interim relief by the Trial Court. The Appeal is pending. Even, the suit is pending. It was not open for the Administrator General to hold that the suit is bad for non-joinder of the heirs or other necessary party. All such issues are to be decided by the court and not the Administrator General. If the suit of the petitioner is not maintainable or whether the claim therein is unsubstantiated and lacks bonafide, the Small Causes Court will dismiss it. The petitioner will then face all consequences. However, by entering into the merits of the controversy, the Administrator General has in this case encroached upon the Powers of the Small :13: :13: :13: Causes Court. That is wholly impermissible and contrary to the settled principle that under the Constitution of India, the courts are repository of the Judicial Power. The Hierarchy of Courts is provided by relevant Statutes and it is in accordance therewith that this constitutional function is discharged by judiciary. All Agencies and Authorities aid and assist the Judiciary in fulfilling this obligation. Independence of Judiciary is an essential attribute of Rule of Law which is a basic feature of the Constitution. Judiciary must be free not only from Executive Pressure but also from other pressures (See C.Ravichandran Iyer v/s. Justice A.M.Bhattacharjee (1995) 5 SCC 457 and High Court of Bombay V/s. Shirish R.Patil (1997) 6 SCC 339). In these circumstances, there is substance in the complaint that the Administrator General has travelled beyond his Authority and assisted the Respondent no.4 in recovering possession of the Flat/premises. 11 It is in such circumstances, that I cannot uphold the order of the Administrator General. In his opinion, the property of the deceased is being usurped :14: :14: :14: by the petitioner. Once there is claimant for the property and he has approached a court of law and the court of law is seized of the matter, then, the Administrator General had no business to entertain any Application directly from a Litigant/party to the lis in the Small Causes Court and pass the impugned order. Thus, looked at from at any angle, the impugned order is ex-facie unsustainable and deserves to be quashed and set aside. 12. The Administrator General justified his order thus :- ". At the further outset it is submitted that admittedly Mr.Nalin Jagmohan Sheth died intestate at Mumbai on 4th October, 2007. Admittedly, the said Nalin J.Sheth was unmarried and left no heirs in Class I mentioned in the Schedule to the Hindu Succession Act, 1956. It appears that Mr.Nalin J.Sheth left heirs in Class II being brothers. The father of the petitioner predeceased the said deceased Mr.Nalin J. Sheth. Thus, the petitioner is not heir of the Mr.Nalin J.Sheth under the provisions of Hindu Succession Act, 1956. Admittedly, neither the brothers of the deceased (whose names are mentioned by the petitioner in para 3(c) of the petition.) nor any person claiming to be interested otherwise then as a Creditor in the said Flat No.8 or in due administration thereof obtains, within three months of the :15: :15: :15: death of the deceased a certificate from the Administrator General U/s. 29 of the said Act or for probate of a Will or Letter of Administration of the estate of the deceased. Admittedly, the property is being in danger due to fighting between the landlord of the Flat No.8 and the petitioner. Admittedly, the Small Causes Court prima-facie recorded the finding that the tenancy of the Flat no.8 stand in the name of the deceased and that the petitioner is not the family member of the deceased residing in Flat No.8. Admittedly, the Landlord had changed the rent receipt from Nandanben J. Sheth (since deceased) to Mr.Dhirajlal J. Sheth in the year 1964 on death of the said Nandanben J.Sheth. When the landlord has changed the Rent Receipt on the death of Nandanben J.Sheth in respect of Flat No.7 there is no any reason for the landlord to continue to issue rent receipt of Flat no.8 int he name of deceased person. The petitioner has neither produced before me nor before this Hon’ble Court any documentary evidence to show that the petitioner and his Family have been residing in Flat no.8 with the deceased at the time of his death. Similarly, the petitioner has not produced any documentary evidence that the Late Nalin J.Sheth was residing in Flat No.7. In the circumstances, the protection and preservation of the estate of the deceased Nalin J.Sheth is required. " 13. These statements demonstrate that the Administrator General has taken over Judicial Power and Function. The Suit proceeds on the basis that the Petitioner is a "Tenant" by virtue of Section 5(11)(c) of the Bombay RentAct, 1947 or any statutory :16: :16: :16: modification thereof. If the petitioner cannot prove his case and satisfy the Trial Court with regards to the ingredients or requirement stipulated in the provisions, his suit will fail. Today, his suit is pending. Merely, because the interim relief is refused, does not mean that the petitioner’s version has to be disbelieved. The petitioner has approached a court of Law and that will decide the Lis. At this stage, the petitioner was not required to produce any document before the Administrator General. 14. Rule is accordingly made absolute in terms of prayer clause (a). However, this order does not prevent the Respondent Nos.2 to 4 from taking such steps as are permissible in law to assert their right, title and interest in the immovable property. Merely because the Administrator General’s order is set aside, does not mean that their remedies are lost or affected prejudicially. They can approach a court of law and seek adjudication of their rights, if they so desire or await the outcome of the petitioner’s suit. However, if they approach a court of law it will decide the matter without being influenced by the fact that :17: :17: :17: Respondent Nos.2 to 4 had earlier approached the Administrator General. In the circumstances, there will be no order as to costs. 15. Equally, this order does not prevent the Administrator General from exercising his powers with regard to the estate of the deceased , Nalin Shah, if none is coming forward to claim the same. The Administrator General has enough powers under the Act and in General Law so as to protect and safeguard the estate. However, while doing so, the Administrator General shall not in any manner touch the pending lis in respect of the Flat in question. The Small Causes Court to decide the Suit/Appeal ignoring the findings of the Administrator General and in accordance with law. *********