1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1892 OF 1992 Mohammed Ismail Mohammed Sayed ..Petitioner. Vs. Maharashtra Housing and Area Development Authority & Ors. ..Respondents. .... Mr. G.K. Masand for the Petitioner. Ms. S.M. Dandekar, AGP for the State. .... CORAM: DR. D.Y. CHANDRACHUD, J. 16th November, 2006. P.C. : 1. The Petitioner was a tenant of commercial premises comprising of Shop No.3 in a building being 21/39 Mavji Rathod Road, Mumbai 400 009. According to the Petitioner the area of the shop admeasured 135 sq. ft. The case of the Petitioner is that before the building was taken up for demolition and reconstruction by the First Respondent, he had temporarily allowed a person by the name of Dagdu Mahadev to conduct a vegetable business in respect of a portion thereof called shop No.3-A. Dagdu expired and thereupon the Petitioner claims to have reoccupied the portion bearing 3-A. The building was taken up for reconstruction by the First Respondent. It has not been disputed before this Court by Counsel appearing for the First Respondent that possession of the 2 entire premises was taken from the Petitioner herein. The Petitioner had filed a writ petition before this Court (Writ Petition 3410 of 1987) apprehending that the area of the alternative premises to be handed over to the Petitioner would be reduced from 135 to 105 sq. ft and a portion admeasuring 45 sq. ft would be handed over to the heirs of Dagdu. The Petition was disposed of by a Learned Single Judge of this Court on 12th November, 1987 upon a statement made by Counsel appearing for the First Respondent herein to the effect that no decision in regard to allotment had been made since the building was under construction and that no wall has been set up to divide the shop to be given to the Petitioner. 2. The case of the Petitioner is that on 13th January, 1990 the premises of Shop Nos. 5 and 6 in the newly reconstructed building came to be allotted to him and the Petitioner was called upon to furnish an undertaking and indemnity bond to the effect that in the event that the widow of Dagdu established her claim in a Court of competent jurisdiction in the future, the Petitioner would undertake to surrender the possession of the premises to the Board. Thereafter, according to the Petitioner he had deposited 3 a sum of Rs.477/- towards the security deposit for shop Nos. 5 and 6 with the Board on 16th November, 1990 followed by deposit on account of electricity on 21st November, 1990 and another deposit towards the rent of the two shops. The Petitioner claims to have been put in possession on 21st November, 1990. On 13th July, 1992 the First Respondent informed the Petitioner that the right of Smt. Sakhubai Dagadu in respect of Shop No.3-A “is admitted” and consequently, the Petitioner was called upon to surrender the possession of Shop No. 6 failing which it was stated that he would be forcibly evicted. The Petitioner addressed a representation and thereupon instituted these proceedings under Article 226 of the Constitution. Rule was granted in the Petition on 18th September, 1992 and ad interim relief came to be granted in terms of prayer clause ( c) restraining the First Respondent from acting upon in pursuance of the letter dated 13th July, 1992 or from disturbing the possession of the Petitioner in respect of Shop Nos. 5 and 6. 3. An affidavit in reply has been filed on behalf of the First Respondent in which it has been stated that after the premises comprising of Shop Nos. 5 and 6 were alloted to the Petitioner upon the Petitioner executing an indemnity bond, Sakhubai “proved her possession of Shop No.3-A” and the Deputy Chief Officer 4 addressed a letter to the Petitioner calling upon the Petitioner to surrender Shop No.6. 4. The Petitioner has filed an affidavit in rejoinder stating that physical possession of Shop No.3 admeasuring 135 sq ft. was handed over by him to the Respondents to facilitate the reconstruction of the building and it was the Petitioner consequently who was alloted shop Nos. 5 and 6 by the First Respondent. 5. On behalf of the Petitioner it has been submitted that the impugned communication dated 13th July, 1992 calling upon the Petitioner to surrender the allotment was issued unilaterally without furnishing to the Petitioner any opportunity of being heard. There is merit in the grievance of the Petitioner that a valid allotment of Shops 5 and 6 which was made in favour of the Petitioner could not have been cancelled, in such an arbitrary fashion without furnishing to the Petitioner an opportunity of being heard. The Petitioner was not given any notice of an application, if any, made by Sakhubai nor was he furnished with an opportunity of presenting a reply thereto. Sakhubai also expired during the pendency of these proceedings and her legal heir has been impleaded as 5 Respondent No.3(a). Though Respondent No.3(a) has been served, he has not entered appearance in these proceedings. The indemnity bond that was furnished by the Petitioner to the Court provided that the Petitioner would undertake to surrender the possession of the shop in the event that Sakhubai or any other person or persons established a claim in respect of the shop in a Court of competent jurisdiction in future. Admittedly, no such claim has been established nor was it the case of the First Respondent that Sakhubai had obtained a decree of a competent Court recognizing her entitlement. The Board had admittedly taken possession of the shop from the Petitioner and had recognized the entitlement of the Petitioner to an allotment of the alternative premises subject to that entitlement being defeated in accordance with a decree passed by a competent Court establishing the right of Sakhubai or some other third party. In the absence thereof, it was not open to the First Respondent to unilaterally cancel the allotment made to the Petitioner or to threaten him with an order of forcible eviction unless he handed over possession. In these circumstances, the impugned communication dated 13th July, 1992 of the Special Executive Officer is manifestly illegal and would have 6 to be quashed and set aside. There shall be an order accordingly. Rule is accordingly made absolute in terms of prayer clause (a). In the circumstances of the case, there shall be no order as to costs.