1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.889 OF 2008 WITH CIVIL APPLICATION NO.394 OF 2009 Shri Raghunath K Chikalkar : Appellant versus The Maharashtra Housing & Area Development Board (MHADA) & ors. : Respondents. Shri P M Havnur for the Appellant. Smt.Manchekar,AGP, Respondent Nos.1 & 4. Shri S S Redekar for Respondent No.6. CORAM : R.M.SAVANT, J. DATED : MARCH 20, 2009 P.C. 1. This Appeal takes exception to the order dated 11/4/2008 passed by the learned Judge of the City Civil Court, Bombay by which order, the Notice of Motion No.2677 of 2007 in S C Suit No.2917 of 2007 filed by the Appellant/Plaintiff came to be rejected. 2 2. The Appellant/Plaintiff has filed S C Suit No.2917 of 2007 challenging the notices dated 25th May and 20th June 2007 of Defendant No.2 and order dated 16.3.2007. The said notices and the order are in respect of cancellation of eligibility of the Plaintiff as regards the permanent alternate accommodation which was allotted to the Plaintiff by the competent authority. In the said suit, the Plaintiff filed Notice of Motion restraining the Defendants from obstructing his possession of the suit premises and evicting him therefrom in pursuance of the decision/letter of defendant No.4, pending the hearing and final disposal of the suit. 3. It is the case of the Plaintiff that he was the owner and possessor of hut No.B-2, situated at Siddharath Nagar Slum Colony, Navy Nagar, Colaba, Mumbai and was residing therein since the year 1994. It is further the case of the Plaintiff that he had purchased the said structure from the Defendant No.6 on 26th July 1994 pursuant to the document executed by the Defendant No.6 on a stamp paper of Rs.5/-. The Defendant No.4 i.e. The Deputy Collector (Encroachment/Removal) and Indian Navy surveyed the slum area in 3 the year 2000 and recorded the names of the slum dwellers. The Plaintiff submitted the documents in support of his case that he was qualified for allotment of permanent alternate accommodation as per the policy of the State Government. It appears that an agreement took place between the Defendant Nos.1 to 3 i.e. MHADA and the Indian Navy pursuant to which MHADA was to make available, the tenements for accommodation of slum dwellers who were occupying the Naval land. Thereafter the Plaintiff was allotted Flat No.602 in building No.56 at Mankhurd under the Slum Rehabilitation Scheme pursuant to the no objection certificate granted to him by the Command Works Officer of Western Naval Command and he was put in possession of the suit premises on 21/12/2000. It is the case of the Plaintiff that since 21/12/2000 he was in possession of the suit premises and was paying necessary charges to the Defendant No.5 society which comprised of the residents of the Slum Rehabilitation Buildings. 4. It appears that the Defendant No.6, who was the occupant of the said structure allegedly bought by the Plaintiff, filed a FIR as 4 also made a complaint to the Deputy Collector (Encroachment/Removal) alleging that the Plaintiff has been wrongly allotted the said permanent alternate accommodation and that it is he who is entitled for the same. Pursuant to the said complaint, the Deputy Collector (Encroachment/Removal) served upon the Plaintiff a notice calling upon him to remain present on 01/04/2006 to explain as to how his name was added in the list of eligible slum dwellers. The Plaintiff accordingly filed the relevant documents on 01/04/006, in the hearing held by the Deputy Collector (Encroachment/Removal) on the same day i.e. 01/04/2006, the statements of the Plaintiff and Defendant No.6 were recorded. Pursuant to the said hearing, an order came to be passed on 16/03/2007, copy of which was furnished to the Plaintiff. The Plaintiff was informed by notice dated 25/5/2007 that the Plaintiff the eligibility of the Plaintiff has been cancelled and the Defendant No.6 Nandakumar Mukund Shinde was held eligible and, the Plaintiff was therefore called upon to vacate the suit premises. Thereafter further notice was served upon the Plaintiff dated 20/06/2007. The Plaintiff challenged the said notices and order by filing L C Suit No.2917 of 2007. The Plaintiff raised various 5 contentions as regards the said decision and the notices principally challenging the same on the ground of breach of the principles of natural justice. In the said suit the Plaintiff filed a Notice of Motion for restraining the Defendants from obstructing his possession of the suit premises and evicting him therefrom in pursuance of the decision/letter of the Defendant No.4. The Defendants filed their reply to the said Notice of Motion. 5. The trial Court took into consideration the material on record and by the impugned order dismissed the Notice of Motion. It is pertinent to note that the Plaintiff claims to have purchased the old structure from the Defendant No.6 on 26/7/1984 for Rs.1.25 lakh. According to the Plaintiff he paid the said amount to his maternal brother Kishor Dattaram Kadam who in turn paid the said amount to Shri Balu Rokade and Shri Dattatray Pednekar. Significantly, the Plaintiff does not know whether the Defendant No.6 in fact had received the said amount. The Plaintiff also did not produce a single document in support of his case that he was in possession of the said structure prior to 1/1/1995. The trial Court, therefore, on the said 6 basis, held that the Plaintiff has prima facie failed to establish that he was occupying the suit structure prior to 1/1/1995 or has legally acquired the old structure from the Defendant No.6. 6. In so far as allegations of violation of the principles of natural justice is concerned, it is pertinent to note that after the Defendant No.6 complained to the higher authorities, the Defendant No.4 was directed to make inquiry as regards allotment made to the Plaintiff. Accordingly, the Plaintiff was called upon by the Defendant No.4 on 01/04/2006 with the relevant documents regarding inclusion of his name in the list of eligible slum dwellers. The statements of the Plaintiff and the Defendant No.6 were recorded on the said day. The Plaintiff did not produce any document regarding occupation of the old structure prior to 1/1/1995 and, therefore, the Defendant No.4 passed the order dated 16/3/2007 cancelling the allotment made to the Plaintiff and held the Defendant No.6 as eligible for allotment. 7. In so far as jurisdiction of the Defendant No.4 to re-consider his earlier order is concerned, the scheme of rehabilitation is evolved 7 by the State Government for the rehabilitation of the persons who were the occupants of the structures prior to 1/1/1995. The said scheme has therefore to enure to the benefit of the slum dwellers who are genuinely in occupation prior to the said date. Since the Plaintiff could not produce any material in support of his case that he was in occupation of the said structure prior to 1/1/1995, the authorities were justified in revoking the said allotment order and holding the Defendant No.6 as eligible for allotment. 8. The trial Court in the said circumstances has held that the Defendant No.4 was justified in initiating the inquiry as regards the eligibility of the Plaintiff. The trial Court also held that the Defendant No.4 was entitled to correct the mistake committed by it by passing a fresh order. 9. In my view, the reasons cited by the trial Court for refusing the discretionary relief of injunction cannot be faulted with. Hence no case for interference is made out. The above Appeal from Order is accordingly dismissed. 8 10. It appears that the above Appeal from Order came to be dismissed for default on 23/09/2008 and was restored on 13/1/2009. the Respondent Nos.1 to 3 herein have taken possession of the premises in question on 12/3/2009 on the directions issued by the Deputy Collector (Encroachment/Removal). The said possession, according to the Respondents, has been taken on the basis that though the Appeal from Order has been restored, the interim order has not been restored along with it. The Appellant/Plaintiff therefore filed Civil Application No.394 of 2009 for restoration of possession. In view of the order passed in the above Appeal from Order, no orders are necessary to be passed in the Civil Application No.394 of 2009 and, the same to accordingly stand disposed of. [R.M.SAVANT, J]