IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 1902 of 2007 with Writ Petition No. 314 of 2008 1. Kisturaram s/o Udaram Chaudhari and another ..Petitioners vs. 1. Maharashtra Housing and Area Development Authority and anr. ..Respondents Mr.R.R.Rawell i/b M/s R.R.Rawell and Co. for petitioners in W.P.No.1902 of 2007 and for respondent no.1 in W.P.No.314 of 2008. Mr.H.R.Pawar for respondent no.2 in W.P.No.314 of 2008 Mr.G.W.Mattos for petitioner in W.P.No.314 of 2008 and for respondent no.1 in W.P.No.1902 of 2007 CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 28th April, 2008 28th April, 2008 28th April, 2008 P.C. P.C. P.C. 1. These petitions under Article 226 of Constitution are directed against the orders passed by the Appellate Authority constituted under the Maharashtra Housing and Area Development Act, 1976. 2. The order proceeds on the basis that the premises in occupation of the petitioners in Writ Petition No.1902 of 2007 are Authority premises and allotted for occupation to respondent no.2 Malti Maruti Kanaskar. 3. The Competent Authority proceeded on the basis that this lady/Malti Maruti Kanaskar has inducted the petitioner in W.P.No.1902 of 2007 and that is why her right of occupying the premises which have been allotted to her under the Prime Minister’s Grant Project stands forfeited and the premises should revert back to MHADA. The appellate authority reversed this finding in appeal by the said Malti and held that the said Malti though an allottee of the MHADA was never put in physical possession of the premises and, therefore, even if the right of the petitioner in W.P.No.1902 of 2007 to occupy the premises must come to an end, the premises cannot revert back to MHADA but should be allotted to original allottee Malti. Aggrieved by these orders, the transferee from Malti and the MHADA have invoked the writ jurisdiction of this Court. 4. When these petitions were argued before me I invited attention of the parties to the documents which have been placed on record. There is an agreement which has been executed way back on 24th January, 1993 by Malti in favour of Mrs.Aloo Tavadia and Ms.Hutoxi Tavadia. Thereafter there is another agreement for sale entered into in 1994 by Tavadias’ in favour of the petitioner in writ petition no.1902 of 2007. 5. These agreements in favour of Tavadia have been signed on behalf of Malti by one Jagannath L.Bansode claiming to be the power of attorney holder. Mr.Pawar appearing for Malti would urge that the power of attorney is forged and Malti’s signatures were obtained on blank documents and she never authorised Bansode to transfer the said premises. In such circumstances the order of the Appellate Authority does not require any interference. Hence, Writ Petition No. 1902 of 2007 be dismissed. 6. MHADA is aggrieved by that part of the appellate authority’s order wherein it refuses to hand over the premises back to MHADA, after a conclusion is arrived at by the Appellate Authority that there is a breach of the terms and conditions of the allotment by Malti. The orders are passed under sec.66 and sec.70 of the MHADA Act, 1976. 7. Considering the fact that the Competent Authority and the Appellate Authority referred to the order of allotment in favour of Maltibai and she has disputed the transaction of the year 1993-94, I brought it to the notice of Mr.Pawar appearing for her that remedy of Maltibai was not to approach the Competent Authority to seek eviction of the petitioners in petition no.1902 of 2007 but she must prove that the premises were allotted to her; she had exclusive right to occupy and that the she never permitted the said Jagannath Bansode to alienate the property/premises. She must seek a declaration that the documents allegedly executed by Jagannath are fabricated, false and not binding upon her. 8. Mr.Pawar accepts this position and prays that some time be granted so as to enable Malti to file proper proceedings. He submits that until that time order of the Appellate Authority may be kept in abeyance. 9. From perusal of the order passed by the Appellate Authority, it is not possible to conclude that the letters produced by Maltibai would be conclusive of her right. The appellate authority has treated that these documents as proof of cheating and fraud committed allegedly by Bansode on Maltibai. Further the appellate authority has concluded that physical possession was never handed over by MHADA to Maltibai, but, MHADA’s case is to the contrary. Therefore, the Appellate Authority’s order restoring the premises to Maltibai by evicting the petitioner in W.P.No.1902 of 2007 would have to be set aside. It is based only on the fact that the authority premises have been occupied contrary to the terms and conditions not by the original allottee Maltibai but by somebody else who is not claiming through her. The order proceeds on the basis that the Competent Authority is in error because Maltibai may have been allotted the premises but she was not put in physical possession. Once that is the case and allotment has been taken not as a proof of possession, then, whether subletting was done or not has not been established. That apart, MHADA would have to go to Court of law and seek appropriate relief with regard to two agreements which have been executed by Bansode and Tavadia. Such are the factual findings rendered by the Appellate Authority as if it is a civil Court. 10. In such circumstances, the Appellate Authority’s order directing that the premises be handed over to Maltibai cannot be sustained. Maltibai would be entitled to the premises provided she established her right thereto in accordance with law and after seeking appropriate relief with regard to two agreements for sale. Unless and until the petitioners in Writ Petition No.1902 of 2007 are held to be possessing no right to occupy the property, the Appellate Authority could not have directed that the property be handed over to Maltibai. In such circumstances, the petitions which are filed by the petitioner in Writ Petition No.1902 of 2007 and MHADA being W.P.No.314 of 2008 can be disposed of by following order. 11. The directions of the Appellate Authority dated 15th June, 2007 and more particularly direction no.5 is set aside subject, however, to the right of Maltibai to file appropriate proceedings and assert her right, title and interest in the property. If she establishes that the agreements of sale are not binding upon her then the MHADA should then abide by the orders and directions of the Competent Court in that behalf. 12. If Maltibai does not file any suit on or before 9th June, 2008, then, the premises would revert back to MHADA but it would be open for the petitioners in writ petition no.1902 of 2007 to apply for regularisation of their occupation with regard to subject premises and such application should be considered strictly on merits and in accordance with the prevailing policy and rules of MHADA. Merely because liberty is granted for regularisation does not mean that MHADA is obliged to regularise. However, the same must be considered in accordance with law. Needless to state that if Maltibai files a suit or other proceedings and obtains interim/ad-interim orders, then, the petitioners in W.P.No.1902 of 2007 shall abide by the same. 13. In any event, MHADA should not take physical possession of the premises till 30th June, 2008. Needless to clarify that this Court has not expressed any opinion on the issue of maintainability, limitation or merits of the proceedings which are going to be instituted by Maltibai and defended by Choudhari or by MHADA. All contentions of the parties in that behalf are kept open. Needless to further state that despite appellate authority’s order directing that the premises must be handed over to Maltibai have been set aside by me, yet, liberty being given to her to adopt appropriate proceedings means that MHADA must abide by the same and, therefore, all contentions of Maltibai in that behalf are also not concluded by this order. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)