1 wp-6722-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6722 OF 2010 Shri Ajit Balwant Kulkarni .. Petitioner Vs. Administrators General, Maharashtra State, Mumbai and ors. .. Respondents Mr. A.V. Anturkar i/by Mr. S. B. Deshmukh for petitioner. Mr. Samir Patil, AGP for State. Mr. G.S. Godbole i/by Mr. Nitin Mulye for added respondents i.e. Nos.2 and 3. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. OCTOBER 15, 2010. P.C. 1. Heard Mr. Anturkar with Mr. Deshmukh, the learned counsel for the petitioner. 2 wp-6722-10 2. Rule. 3. Respondents waive service. The Petition is taken up for final hearing forthwith, more so as the Administrator General has filed affidavit- in-reply and the added respondents have adopted the averments made in Civil Application No. 2378 of 2010 to oppose the petition. 4. This petition filed under Article 226 of the Constitution impugns the action of the Administrator General in taking forcible possession of Apartment No.1 and Apartment No.5 of Shree Narayan Apartment, 1182/1/7 Shivajinagar, Off Fergusson College Road, Pune 411 005 and on the ground that the said action is illegal, violative of fundamental rights and the constitutional rights. The petitioner further prays for restoration of the possession in his favour of the suit property. 5. Dr. Madhav Narayan Hardikar was admittedly the owner of the suit property which, in fact, is a two storyed flat/Apartment admeasuring about 1200 sq.ft. His wife pre-deceased him and he died on 4/12/2009, leaving behind no children. It appears on or about 12/8/2010 the added respondents submitted an application to respondent no.1 for 3 wp-6722-10 taking over possession of the suit Apartment and though in the said application the claim of the petitioner regarding the purported Will and testamentary of late Dr. Madhav Hardikar in favour of the petitioner was specifically stated, no notice was issued to the petitioner by the respondent no.1 before he passed the impugned order on 13/8/2010. A copy of the said order has been placed before us by respondent no.1 along with his affidavit-in-reply. Respondent No.1 claims to have invoked his powers under Section 30 of the Administrators-General Act, 1963 (for short the Act) and on the basis of the application submitted by the added respondents, who had claimed that late Dr. Hardikar had, on 19/10/1996, executed an agreement for sale in respect of the suit Apartment. The only question that arises for our consideration is whether the order dated 13/8/2010 is sustainable in law. 6. Section 30 of the Act states that in cases falling within Section 29, no person claiming to be interested otherwise than as a creditor in such assets or in the due administration thereof obtains, within three months of the death of the deceased, a certificate from the Administrator-General under that section, or probate of a will or letters of administration of the estate of the deceased, the Administrator-General may administer the estate 4 wp-6722-10 without letters of administration, in the same manner as if such letters had been granted to him. Section 29 of the Act states that whenever any person has died leaving assets within any State and the Administrator-General of such State is satisfied that such assets did not at the date of death exceed in the whole ten lakh rupees in value, he may grant to any person, claiming otherwise than as a creditor to be interested in such assets or in the due administration thereof, a certificate under his hand entitling the claimant to receive the assets therein mentioned left by the deceased within the State, to a value not exceeding in the whole ten lakh rupees, excluding, of course, any some of money deposited in a Government Savings Bank or in any provident fund to which the provisions of the Provident Funds Act, as the case, may apply. As per sub-section (3) of Section 29, no certificate shall be granted under the said section, where probate of the deceased’s will or letters of administration of his estate has or have been granted. 7. We have perused the application submitted by the added respondents before the respondent no.1 on 12/8/2010 and it does not mention the consideration amount agreed upon specifically, but it does state that the deceased was paid an amount of Rs.51,000/-. The value of the suit Apartment has not been mentioned. It was also not stated that the 5 wp-6722-10 market value of the suit apartment did not exceed rupees ten lakhs. In any case, the applicants specifically pointed out that the present petitioner claims to have a Will in his favour made by the deceased and, therefore, it was necessary for the Administrator-General to issue a notice to the petitioner before the impugned order was passed, if at all he was satisfied that the market value of the suit Apartment was upto ten lakh rupees as on 12/8/2010. The value of the Apartment was neither mentioned in the application nor in the impugned order there is any indication so as to justify the contention of the Administrator-General that he could invoke his powers under Section 30 read with Section 29 of the Act. At the same time, Section 10 is the only section which authorizes the Administrator-General to collect and take possession of the assets left behind by a person who had died leaving assets within the State and exceeding the value of ten lakh rupees, but under the orders of this court. In any case, either under Section 10 or under Section 30 read with Section 29 of the Act, the impugned order is unsustainable and, therefore, it cannot be allowed to be continued. 8. It is also not disputed between the petitioner and the added respondents that a civil suit before the Civil Judge, S.D. at Pune i.e. Special Civil Suit No. 1788 of 2010 and the petitioner is impleaded as defendant 6 wp-6722-10 no.1 with his wife as defendant no.2. The report submitted by the Principal District Judge at Pune, in obedience of the order passed by this court on 3/9/2009, does indicate that the suit apartment was in occupation and hence there is prima facie material on record to support the contentions of the petitioner that he was in possession of the suit apartment. In any case, the rights of the parties i.e. the petitioner and the added respondents over the suit apartment are a subject matter to be decided in the pending suit, wherein the plaintiffs may also have the remedy to seek an order of protection of the property. Mr. Anturkar, the learned counsel for the petitioner has made a statement before us that for a period of four weeks from today, he shall not create any third party interest over the suit apartment and this undertaking should protect the interests of the added respondents. 9. Hence, the petition is allowed and the impugned order dated 13/8/2010 passed by the respondent no.1 is hereby quashed and set aside. We have noted down the undertaking of Mr. Anturkar that the petitioner shall not create any third party interests in any form over the suit apartment for a period of four weeks from today. We direct the respondent no.1 to remove the seal he has put on the suit apartment in the presence of the 7 wp-6722-10 Court Commissioner who visited the suit property pursuant to the order passed by us on 3/9/2010. The Court Commissioner shall also remove his seal and draw a panchanama of handing over possession of the suit property to the petitioner within one week from today. Rule is made absolute accordingly but with no order as to costs. 10. We make it clear that the observations made in this order will not have any bearing on the rights of the respective parties, which are to be decided in the pending suit. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)