Indian Mercantile I.B. Assn. (Tenants) & Ors. vs Union of India & Ors

Indian Mercantile I.B. Assn. (Tenants) & Ors. ...Appellants

Versus

Union of India & Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order dated 25th

August, 2006 passed by a Division Bench of the Bombay High

Court dismissing the writ petition filed by the appellants on the ground that they have an alternative statutory remedy by

way of Appeal. Reference was made to Section 103-A of the

Maharashtra Housing and Area Development Act, 1976 (in

short the `MHAD Act') and a decision of this Court in Crawford

Bayley v. Union of India (2006 (6) SCC 25).

3. While issuing notice on 10.11.2006 it was inter alia ordered

as follows:

"Permission to file additional documents is granted. The additional documents are taken on record.

Issue notice.

Counsel for the respondent no.2, present on caveat, accepts notice. Notice shall go to the unrepresented respondents to show cause why this matter be not remitted to the High Court for fresh consideration in view of the fact that the relief sought for in prayer(d) of the writ petition may not be available under the Public Premises Act.

In the meantime, there shall be status quo as regards possession."

2 4. Learned counsel for the appellant submitted that the High

Court had erroneously concluded about existence of an

alternative statutory remedy overlooking the parameters of

Sections 92 and 103-A of the MHAD Act. It is pointed out

that the relief in terms of Section 103A cannot be granted in

appeal. It is stated that the Mumbai Building Repairs and

Reconstruction Board (in short the `Board') has accepted

that appellant filed an application in terms of Section 103-A

of MHAD Act, though earlier it had taken the stand before

the High Court that no such application was filed. Before

the High Court the Board had stated in the counter affidavit

that the appellants have not made any application in terms

of Section 103 of the MHAD Act to enable the respondents 5

& 6 to initiate acquisition proceedings. The position was

reiterated in the counter affidavit filed in this Court stating

that the appellants had not made any application under

Chapter VIII A of the MHAD Act to enable the respondent

Nos.5 & 6 to initiate acquisition proceedings. But after the

rejoinder was filed, it has been accepted that in fact such

an application has been filed on 28.8.1986 and the later in

3 May, 1987 the appellants filed application before the

Executive Engineer, Cooperative Housing Societies, Repair

and Reconstruction Cell of Board. This clearly indicates the

position, which has been indirectly accepted, that in the

application made in May, 1987, it was pointed out that

there was no condition regarding requirement of premises

being at least 50% of residential nature. It is accepted that

said averment is substantially correct. It is stated that the

application is not traceable. Board has, however, not denied

the assertion of the appellant about the same.

5. Mr. Gopal Subramanium, learned Additional Solicitor

General pointed out that even though application has been

filed in terms of Section 103A of the MHAD Act, the

appellants are not entitled to any relief. Reliance is placed

on the proviso to said section.

6. Learned counsel for the appellant pointed out that proviso

in question was inserted in 1989. But the application was

made much earlier in May, 1987. It is fairly accepted by

4 learned counsel for the respondents that the nature of the

relief in terms of prayer (B) in the writ petition cannot be

granted under the Act. Above being the position, we set

aside the impugned order of the High Court and remit the

matter to it for fresh disposal in accordance with law. The

interim order dated 10.11.2006 shall operate for a period of

eight weeks. In the mean time it shall be open to the parties

to move the High Court for such interim protection as is

available in law. We make it clear that we have not

expressed any opinion on the merits of the case.

7. Appeal is allowed to the aforesaid extent without any order

as to costs.

..........................................J. (Dr. ARIJIT PASAYAT)

.........................................J. (LOKESHWAR SINGH PANTA New Delhi, May 6, 2008