In a writ petition filed before the Bombay High Court to challenge the judgment and order dated 31-08-2009 by the Administrator & Divisional Commissioner, Konkan Division, Mumbai, whereby the original petitioner’s appeal was disallowed thereby confirming the order dated 04-10-2006 by the Additional Collector, Mumbai, ordering eviction of deceased and his alleged tenant under provisions of Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971 (Slum Act), a Single Judge Bench of Justice M.M. Sathaye set aside the impugned orders.
The petitioner was the original allottee of slum rehabilitation tenement No. 1/507(subject tenement) in Sundernagar Co-operative Housing Society at Dadar, Mumbai. A complaint was filed alleging that unauthorized persons were occupying slum rehabilitation tenements and that the original allottees had transferred them illegally. Thereafter, the Slum Rehabilitation Authority (SRA) conducted a survey and upon finding a woman in the subject tenement, concluded that the woman’s son was the tenant of the deceased original allottee inducted in breach of the Slum Act.
The Additional Collector, Mumbai passed an order on 04-10-2006 concluding that the woman’s son was found to be in possession as tenant after a reply by the petitioner’s daughter urging that she was residing with her father in the said tenement and that the woman’s son was their relative who had no place to stay in Mumbai and was staying with them temporarily. Holding that this was a breach of the Development Control Regulations for Greater Bombay, 1991, an eviction order was passed with a direction to return it to the authority.
Thereafter, the petitioner filed the aforesaid appeal for which the impugned judgment and order was passed. Hence, the present petition was filed and the eviction order was stayed.
The Court perused the impugned order and found that the affidavit of the woman’s son mentioned that he and his family had no place to stay in Mumbai which is why he was residing with his relative. He also asserted that he was not a tenant by mentioning that at the time of the survey, the petitioner went to the doctor’s, he was out for service, and that only his illiterate mother was at home.
The Court referred to Dipak Banerjee v. Lilabati Chakraborty (1987) 4 SCC 161, and found that in the present case, the housing society concerned had not appeared to oppose the petition and that the society had issued a maintenance receipt for July 2006 in the petitioner’s favour. Further, the Court agreed with the petitioner that breach of Section 3E will be concluded if there is documentary evidence to substantiate the basic ingredient of transfer. It was noted that there was no exchange of consideration between the two parties and found it difficult to accept that the original allottee had lost control over the said tenement. Finding no document to suggest that the tenancy was created in favour of the woman’s son, the Court opined that the eviction direction could not sustain.
Noting a finding in the impugned order to the effect that the complaint which triggered the survey was withdrawn, the Court set aside the impugned orders while allowing the writ petition.
ALSO READ: Accused Spouse’s Status as Co-Borrower Not Enough to Attach Entire Property: Bombay HC
