Mr.Suresh Thomas & Ors. v. The State of Maharashtra & Ors.

Mr.Sriniwas Mr.Iqbal Chagla, Sr,Advocate with Mr.Riyaz I. Chagla Deshmukh, Mr.H.K.Subhakara i/b Khaitan & Co. for the Petitioners. Ms.Madhubala Kajale, AGP for Respondents Nos. 1 & 2. Mr.G.W.Mattos for Respondent No.3. Mr.Z.T.Andhyarujina i/b Wadia Gandhy & Co. for Respondent No.4. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 22nd September, 2009 P.C.:

By this petition the Petitioners challenge the order passed by the Secretary 2 to the Government of Maharashtra, Housing & Special Assistance Department, dated 31st March, 1995.

The relevant facts are that the Respondent No.4 as Chief Promoter of the Proposed Seaface Co.operative Housing Society submitted a proposal in the year 1986 to the Respondent No.3 for acquisition of the property and building, which admittedly owned by the Petitioner. The Respondent No.3 submitted the proposal to the State Government as required by the provisions of Section 103-B of the Maharashtra Housing & Area Development Act, 1976. The Government sanctioned that proposal by order dated 20th April, 1989. On an application made by the Petitioners that order was rescinded by the Government by order dated 9th March, 1992. That order was challenged by the occupants of 3 the building including the 4th Respondent in Writ Petition No.1287 of 1993. That Writ Petition was decided by the learned single Judge of this court by order dated 29-6-1994. The order dated 9th March, 1992 was set aside and the matter was remitted back to the State Government for a fresh decision on the question whether the sanction order of 20th April, 1989 is to be rescinded or not. The Secretary was to hear both the sides and decide that question. It is pursuant to that order that the order impugned in this petition has been made.

The Petitioners and the Respondent No.4, who are the contesting parties through their counsel have consented that this court can set aside that order. There is no consent given by the other Respondents. However, we find that by the order impugned 4 in the petition, the Secretary to the Government has not decided the question which was required to be decided in accordance with the order of this court passed in Writ Petition No.1287 of 1993. In our opinion, therefore, the order impugned in the petition is liable to be set aside and the matter is to be remitted back to the State Government for denovo consideration and decision in accordance with law. In our opinion, the State Government, apart from other issues that the parties may raise, will have to decide the following issues: (i) Whether the proposal submitted by the Respondent No.4 complied with the requirement of law specially the provisions of Chapter VIII-A of the Act; (ii) Whether the Respondent No.3-MHADA forwarded the proposal to the State Government in accordance with 5 the law; (iii) Whether the submissions of the proposal by the Respondent No.3 to the State Government is valid; (iv) Whether the conduct of the society and the Respondent No.4 of entering into the consent terms for repairing of the building after submission of the proposal amounts to waiver of the proposal; (v) Whether the Petitioner has carried out, pursuant to the consent terms, substantial repairs to the building; If the answer is in the affirmative to above question, whether in view of the repairs it will be reasonable to acquire the building; These questions amongst other questions that the Government may feel relevant be decided by the Government after granting an opportunity of being heard to both the sides including the Respondent No.3. The Government will be free to call for any report, if it finds it necessary; All the contentions are left open 6 to be raised before the State Government; The Government shall permit to parties to produce any additional evidence or pleadings that they may choose to produce before it.

The Government shall pass an order as expeditiously as possible, in any case within a period of six months from the date on which the writ of this order is served on the Government. Writ of the order to be served on the Government by the Petitioners. (D.K.DESHMUKH, J.)

(R.G.KETKAR, J.)