Mercantile I.. B. Assn. (Tenants) & Ors. Vs. Union Of India & Ors  INSC 811 (6
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 3334 OF 2008 (Arising out of S.L.P. (C) No.17165 of 2006) Indian
Mercantile I.B. Assn. (Tenants) & Ors. ...Appellants Versus Union of India
& Ors. ...Respondents
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.
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."
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.
(Dr. ARIJIT PASAYAT) .........................................J.