1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 251 OF 2010 Eudocia Albert Albuquerque ) an Indian, residing at Room No.507, ) 5thfloor, Rajani Mahal, Tardeo, ) Mumbi 400 034. )... Petitioner Versus 1. Maharashtra Housing and ) Area Development Authority ) a Statutory Authority under ) under The Maharashtra ) Housing and Area Development) Authority Act, 1976. ) 2. Mumbai Building Repairs & ) Reconstruction Board, a ) Statutory Authority under the ) MHADA Act both having ) their addresses at Griha ) Nirman Bhavan, Bandra (East) ) Mumbai 400 051. ) 3. Mr.K.H.Bagate, ) Deputy Chief Officer (RT) ) Mumbai Building Repairs & ) Reconstruction Board, Griha ) Nirman Bhavan, Bandra (East) ) Mumbai 400 051. ) 4. Robert Anthony albuquerque ) residing at Air India Quarters ) Kanchanjunga Co-operative ) 2 Housing Society, Room No.12,) New M.H.B. Colony, Gorai ) Road, Borivli (West), ) Mumbai 400 091. ) 5. Franklin Anthony Albuquerque ) Residing at Trilok Co-operative) Housing Society (HIG), ) Room No.14, 3rd floor, ) New MHB Colony, Gorai Road) Borivli (West), Mumbai 400 091).. Respondents Mr. R.V.Govilkar, Advocate, for the petitioner. Mr. S.P.Thoat, Advocate, for respondent Nos. 1 & 2. Mr. Abhishek Jain, i/b. Legal Juris, Advocates, for respondent Nos. 4 & 5. CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. DATE : 22nd February, 2010. JUDGMENT (PER J.H.BHATIA,J.) 1. Rule. Rule made returnable forthwith. With consent of the learned Counsel, the matter is taken up for final hearing and disposal immediately. 2. Admitted facts are that Albert and Anthony were brothers inter-se. The petitioner is widow of Albert, while respondent Nos. 4 and 5 are sons of deceased Anthony. Albert and Anthony were residing together in the tenement comprising of Room No.74 with attached terrace on the 4th floor of Tardeo Mansion, Mumbai. The total area of the tenement including the terrace was 3 855.31 sq. ft. Anthony had filed Ejection Application (Suit No.368/1968) against his brother Albert in the Small Cause Court, Mumbai contending that Albert was merely his licensee and the license was terminated. The said suit was dismissed by the Court holding that Albert was tenant within the meaning of the Bombay Rent Control Act. Appeal preferred by Anthony against the judgment also came to be dismissed in 1975. On 26.11.1977, the said building i.e. Tardeo Mansion collapsed and the Deputy Chief Executive Officer, Bombay Building and Repairs and Reconstruction Board (hereinafter referred to as “the Board) issued notice for vacation. The notice was given to Anthony. In 1981, Albert expired. The Board allotted two separate accommodation in the transit camp to Anthony and Albert. Tardeo Mansion was reconstructed and renamed as “Rajani Mahal”. On 2.6.1984, the petitioner filed an application before the CEO of the Board for allotment and separate premises to her in Rajani Mahal. On 2.4.1986, the Board issued a letter to Anthony and Albert to take possession of the tenement No.511 admeassuring 419 sq. ft. in Rajani Mahal. As this area was much less than what they were occupying in the old building, the petitioner and Anthony filed Writ Petition No.1515 of 1986. The learned Single Judge held that the area of the terrace could not be treated to be in exclusive possession of the petitioner and Anthony. However, their appeal was allowed by the Division Bench and the Board was directed to allot them tenement of approximately 855.31 sq. ft. in the 4 newly constructed Rajani Mahal Building. In view of this order, on 5.4.1991, MHADA issued a letter to Anthony about allotment of two tenements bearing Nos. 507 and 511 admeasurig in aggregate 739 sq. ft. However, possession of tenement No.511 could not be given because one More was found to be entitled to the same. Therefore, on 24.5.2006, MHADA allotted tenement No.B/501 and B/502 in another building, viz. “Rosa Mystiula” in lieu of tenement No.511 in Rajani Mahal. The order was issued in the name of respondent Nos. 4 and 5 as Anthony had expired by that time. They took possession of the said tenements in Rosa Mystiula and also sold away the same in favour of third party. On 7.2.2007, respondent Nos. 4 and 5 also took possession of tenement No.507 in Rajani Mahal without consent of the petitioner. According to the petitioner, respondent Nos. 4 and 5 had taken possession of tenement No.507 in collusion with some officers of MHADA even though they had no right, title or interest in the same. This tenement should have been allotted to the petitioner being the legal representative of the deceased Albert. On representation made by the petitioner through her daughter-in-law, the respondent No.2 – Board passed an order holding that the respondent Nos. 4 and 5 and the petitioner and her daughter-in-law are jointly entitled to possession of the tenement No.507 in Rajani Mahal. By this petition, the petitioner seeks to quash and set aside the order dated 15.12.2008. According to her, as the respondent Nos. 4 and 5 were already allotted tenements in Rosa 5 Mystiula in lieu of tenement No.511 in Rajajni Mahal, now they cannot claim any right over the tenement No.507 which would go to the share of the deceased Albert and his legal representatives. She seeks direction against respondent nos. 1 to 3 to allot the tenement No.507 in Rajani Mahal exclusively in the name of the petitioner. 3. Heard the learned Counsel for the parties. Perused the copies of the relevant record and affidavits filed by the parties. 4. On perusal of the record and the affidavits, we are satisfied that the claim of the petitioner is fully justified in respect of the tenement No.507 in Rajani Mahal. Deceased Albert, husband of the petitioner and deceased Anthony, father of respondent Nos. 4 and 5 were jointly living in the tenement in Tardeo Mansion and it was proved that both of them were living as tenants. Therefore, both of them would be entitled to tenements on reconstruction of the said building. Admittedly, the tenement Nos. 507 and 511 in Rajani Mahal were allotted, but the orders were issued in the name of Anthony. However, possession of tenement No. 511 could not be given because another person, viz. More was found to be entitled to the same. In lieu of the said tenement No.511, the respondent Nos. 4 and 5 were allotted two other tenements in Rosa Mystiula which they have sold 6 away to the third party. As far as tenement No.507 is concerned, there was no dispute. As in lieu of tenement No.511, other tenements were allotted to the respondent Nos. 4 and 5 in Rosa Mystiula, they could not claim any right, title or interest in the tenement No.507 in Rajani Mahal. That should have been given to the petitioner being the legal heir of deceased Albert. In view of this, the respondent No.2 could not issue an order allotting the tenement no.507 in Rajanai Mahal in the joint names of the petitioner and the respondent Nos. 4 and 5. That order should have been in the name of the petitioner alone. Therefore, that order is liable to be set aside. 5. For the aforesaid reasons, the petition is allowed. The impugned order dated 15.12.2008 issued by respondent No.2 is hereby set aside. The respondents nos. 1,2 and 3 are hereby directed to issue an order of allotment and possession of tenement No.507 in Rajani Mahal in the name of the petitioner alone and to put her in possession of the same. The respondent Nos. 4 and 5 shall not have any right, title or interest in the said tenement. Rule made absolute accordingly. (J.H.BHATIA,J.) (F.I.REBELLO,J.)