MRS. CHHAYA KASHINATH SHINDEversusTHE STATE OF MAHARASHTRA AND ORS.

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                      AGK
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO.9247 OF 2016

                      Chhaya Kashinath Shinde,
                      Age 55 years, Occu.: Housewife,
                      Residing at Flat No.408, 4th Floor,
                      Kushinara CHS Ltd., Chuim Village,
                      Dr. Ambedkar Road, Khar (West),
                      Mumbai 400 052 through her
                      Constituted Power of Attorney Nitin P. Patel   … Petitioner
                                            Vs.
                        1. The State of Maharashtra, through
                           the Additional Collector (ENC & R),
                           Administrative Building, 7th Floor,
                           Bandra (East), Mumbai 400 051
ATUL                    2. The Deputy Collector,
GANESH
KULKARNI                   SRA Grihanirman Bhawan,
Digitally signed by
ATUL GANESH
KULKARNI
                           Room No.68, Kalanagar,
Date: 2026.07.31
11:15:29 +0530             Bandra (East), Mumbai 400 051
                        3. Hiteshi Dinesh Tank,
                           Adult, Flat No.408, 4th Floor,
                           Kushinara CHS Ltd., Chuim Village,
                           Dr. Ambedkar Road, Khar (West),
                           Mumbai – 400 052
                        4. Sushant Gajanan Ruke,
                           Age 41 years, Occu.: Service,
                           Residing at Amrut Nagar,
                           Khairwadi Road, Bandra (East),
                           Mumbai – 400 051                          … Respondents


                      Mr. Mahesh Tiwari with Mr. Hitesh Gupta for the
                      petitioner.



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Smt. S.D. Chipade, AGP for respondent No.1-State.
Ms. Tanaya Goswami for respondent No.2-SRA.
Mr. Habibur Rehman Ansari for respondent No.3.
Mr. Vinod P. Sangvikar with Mr. Shubham Sonawale,
Ms. Saima S. Shaikh and Ms. Sanika R. Said for
respondent No.4.


                   CORAM                  : AMIT BORKAR, J.

                   RESERVED ON            : JULY 27, 2026.

                   PRONOUNCED ON          : JULY 31, 2026

JUDGMENT:

1.    By the present writ petition under Articles 226 and 227 of
the Constitution of India, the petitioner is challenging legality and
validity of the impugned order dated 18 June 2016 passed by
respondent No.1 in Appeal No.405 of 2015.

2.    Facts and circumstances giving rise to the filing of the
present writ petition, as narrated by the petitioner, are as under.
On 24 March 1971, Shivram Ruke, who was the grandfather of
respondent No. 4, expired. In the year 1976, a photopass was
issued in the name of Vithabhai Shivram Ruke, who was the
original occupant. On 16 September 1981, Vithabhai Shivram
Ruke, the grandmother of respondent No. 4, expired. In the year
1994, the petitioner's name came to be shown as an eligible person
at Serial No. 34 in Annexure II. On 30 May 2000, Gajanan Shivram
Ruke, who was the father of respondent No. 4, expired.

3.    On 25 September 2002, a revised Annexure II was prepared,
in which the petitioner's name was shown as an eligible person at



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Serial No. 35. In the year 2008, Flat No. 408 on the 4th floor of
Kushinara CHS, Chuim Village, Khar (West), Mumbai 400 052,
situated on CTS Nos. D 998, D 1078 and D 1013, was allotted to
the petitioner. On 6 July 2008, respondent No. 4 filed an
application under the Right to Information Act asking for the
document on the basis of which the petitioner was shown as the
nominee of the original occupant. On 10 September 2009, the
concerned authority replied that no such record was available.

4.      After that, on 10 September 2009 the petitioner executed a
Power of Attorney in favour of Nitin Patel. Under the said
document, possession of the flat was also given to Nitin Patel so
that he could stay there along with his family. On 23 December
2009, the Deputy Collector sent a letter to the petitioner asking for
the original documents. However, the letter was returned with the
remark "LEFT NOT KNOWN." On 3 February 2015, respondent No.
3 started staying in the petitioner's flat as a tenant. On 11 May
2015, Sunita Gajanan Ruke, who is the mother of respondent No.
4, along with respondent No. 4, made complaints alleging that the
petitioner had transferred the flat in breach of the law. On 30 July
2015, the Inspection Officer submitted a report recording the
statement of respondent No. 3 that she was residing in the flat on
rent.

5.      On the same day, respondent No. 2 passed an order in
Application No. 12 of 2015 directing that the flat should be
vacated within ten days. Thereafter, Nitin Patel, acting as the
Power of Attorney holder of the petitioner, filed Appeal No. 407 of
2015 before respondent No. 1 challenging the order dated 30 July



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2015 passed in Application No. 12 of 2015.

6.       On 18 June 2016, respondent No. 1 rejected Appeal No. 407
of 2015 by the impugned order. On 3 August 2016, respondent No.
2 again visited the flat and issued a letter directing that vacant
possession should be handed over.

7.       On 4 August 2016, the present Writ Petition came to be filed
by Nitin Patel, acting as the Power of Attorney holder of the
petitioner, challenging the impugned order dated 18 June 2016. At
some point of time, though the exact date is not available on
record, Kushinara CHS issued a No Objection Certificate stating
that Nitin Patel had been residing in the petitioner's flat for many
years.

8.       Learned Advocate for the petitioner submitted that the
Appellate Authority failed to properly consider that the original
occupant had been allotted the flat in place of her old premises
after verification of the relevant documents and after following the
prescribed procedure. It was submitted that this important aspect
was not given due consideration while passing the impugned
order. It was further submitted that the Appellate Authority failed
to appreciate that the Society, in its reply dated 3 April 2015, had
stated that the petitioner had not sold the flat. According to the
petitioner, this showed that there was no transfer of the flat by way
of sale.

9.       Learned Advocate further submitted that it was the duty of
the office of respondent No. 2 to conduct a proper and fair inquiry
without any bias or predetermined view and to place a correct



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report before the competent authority. It was argued that, in such
circumstances, the Appellate Authority ought not to have passed
the impugned order without properly considering the report
submitted by the Trial Authority. It was also argued that the
Appellate Authority did not correctly appreciate the provisions of
Section 3E of the Act. According to the petitioner, the said
provision only prohibits an allottee from transferring the tenement
by way of sale, gift, exchange, lease or otherwise for a period of
five years. It was submitted that neither the investigating authority
nor respondent No. 4 had produced any document to show that
the petitioner had transferred the flat to respondent No. 3 or to
any other person by any such mode. Therefore, according to the
petitioner, the provisions of Section 3E were wrongly applied.

10.   The petitioner further submitted that the Appellate Authority
ought to have called for and considered the investigation report of
respondent No. 2 before deciding the appeal. It was argued that no
such report was called for, though it was necessary for deciding the
dispute properly. It was also submitted that the Appellate Authority
failed to consider the report of the Society, which, according to the
petitioner, supported the petitioner's case. Learned Advocate
further argued that the impugned order does not discuss or deal
with the various defences raised by the petitioner. According to the
petitioner, the Appellate Authority was required to consider each of
those defences before arriving at its conclusion. Lastly, it was
submitted that respondent No. 2 failed to appreciate that, in the
absence of any document showing sale, gift, lease, exchange or
any other recognised mode of transfer, no right, title or interest in



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the flat could have passed in favour of respondent No. 3 or any
other person. It was therefore argued that the finding that there
was an illegal transfer of the flat was not supported by any
documentary material.

11.   Learned Advocate for respondent No. 4 submitted that the
original occupant of the hut situated at Dhanda, Chuim Village,
Khar (West), was his grandmother, Smt. Vithabai Shivram Ruke. It
was   submitted     that   in   the   year   1976,    the   Tahsildar
(Encroachment), Andheri No. 1, had issued Photopass No. 35020
in her favour. Thereafter, after completion of the necessary process,
a supplementary Photopass bearing No. 56230 was also issued in
her name. It was further submitted that the petitioner, by playing
fraud upon the authorities, got her name entered in Annexure II
and thereafter obtained possession of Room No. 408, as described
in the cause title, sometime in the year 2003. According to
respondent No. 4, the petitioner's name was wrongly included in
the rehabilitation records and the allotment of the flat was
obtained on the basis of such fraudulent entry. Learned Advocate
further submitted that on 5 May 2015, the inspecting officer
inspected Room No. 408 and found that respondent No. 3, Ms.
Hiteshi Dinesh Tank, was residing in the said premises. It was
submitted that during the inspection, respondent No. 3 did not
furnish any further information regarding her occupation of the
flat. On the basis of the inspection, the Assistant Registrar (S.R.A.)
submitted a report to the Deputy Collector (S.R.A.) by letter dated
11 May 2015. It was lastly submitted that, after considering the
inspection report, the Deputy Collector (S.R.A.) forwarded his



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report to the Deputy Collector (Encroachment/Removal) stating
that the original allottee was not residing in the allotted premises.
On that basis, it was recommended that proceedings for eviction
under Section 3E(2) of the Act be initiated against the concerned
persons by communication dated 1 June 2015.

FINDING AND REASONS:

12.   I have carefully gone through the pleadings, documents
placed on record, impugned orders, submissions advanced by the
learned Advocates for all parties and the judgments relied upon by
them. From the material, it appears that the dispute before this
Court is not regarding ownership or title of the flat. The limited
issue which requires consideration is whether the authorities were
justified in holding that the petitioner had transferred the
rehabilitation tenement in breach of Section 3E of the Maharashtra
Slum Areas (Improvement, Clearance, and Redevelopment) Act,
1971 and whether the impugned orders suffer from any legal error
calling for interference.

13.   Learned Advocate for the petitioner submitted that there is
no registered document showing any sale, gift, exchange, or lease
in favour of respondent No. 3 or any other person. It was further
argued that even the Society, in its reply dated 3 April 2015,
admitted that the petitioner had not sold the flat. It was also
submitted that the inquiry conducted by the authorities was not
proper, and the Appellate Authority passed the impugned order
without independently considering the investigation report, the
Society's report and the various defences raised by the petitioner.




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According to the petitioner, unless there is documentary material
showing transfer, Section 3E could not have been applied.

14.   These submissions, in my view, cannot be thrown away at
the beginning. The record does show that no registered deed of
sale, gift, exchange, or lease has been produced before the
authorities. The Society's reply also records that the flat was not
sold by the petitioner. Therefore, to that limited extent, the
submission of the petitioner that there is no completed transfer by
any registered document does receive some support from the
record. However, that is not enough for deciding the controversy.
Section 3E does not stop only with the words "sale, gift, exchange,
lease". The Legislature has further used the expression "or
otherwise". Therefore, while deciding the issue, the meaning and
effect of these additional words is also required to be understood.

15.   Section 3E of The Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 reads as under:

      “3E. Restrictions on transfer of tenements. - [(1) The
      tenements allotted to the persons under the Slum
      Rehabilitation Scheme shall not be transferred by the allottee
      thereof by way of sale, gift, exchange, lease or otherwise for
      a period of first five years commencing from the date of
      allotment of the tenement. After the expiry of the said period
      of five years, the allottee may, with the permission of the
      Slum Rehabilitation Authority, transfer such tenement in
      accordance with the prescribed procedure.
      (2) If the tenement is transferred by the allottee in
      contravention of the provisions of sub-section (1), the
      Competent Authority shall, by order, direct the eviction of
      the person in possession of such tenement in such manner



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      and within such time as may be specified in the order, and
      for the purpose of eviction, the Competent Authority may use
      or cause to be used such force as may be necessary: Provided
      that, before issuing any order under this sub-section, the
      Competent Authority shall give a reasonable, opportunity to
      such person to show cause why he should not be evicted
      therefrom.”
16.   Section 3E of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 appears to have been
brought on the statute for a particular object. From reading the
scheme of the Act, it seems that the Legislature wanted the
rehabilitation tenements given under the Slum Rehabilitation
Scheme to remain with the actual beneficiaries for whom the
Scheme was made. These tenements are not like flats available in
the open market where a person can purchase or sell them
according to his wish. They are given under a welfare scheme to
provide accommodation to slum dwellers who lose their houses
because of redevelopment. Therefore, the benefit of such allotment
appears to be meant for the allottee and his family and not for
making money by transferring the premises to somebody else. If
the allottee is allowed to hand over the rehabilitation tenement
soon after getting possession, then with passage of time the object
of the rehabilitation scheme may become meaningless. The
original beneficiary may no longer stay there and another person,
who was never found eligible under the Scheme, may begin to
enjoy the same benefit. Such practice may convert rehabilitation
tenements into commercial properties. It therefore appears that
Section 3E has been inserted so that rehabilitation tenements
continue with the persons for whom they were originally meant



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and the statutory benefit is not diverted through different kinds of
arrangements.

17.   Sub-section (1) places a statutory restriction upon every
allottee of a rehabilitation tenement. It provides that such
tenement cannot be transferred during the first five years from the
date of allotment. This restriction is not confined only to sale. The
Legislature has used wider language by providing that the
tenement shall not be transferred "by way of sale, gift, exchange,
lease or otherwise." These additional words cannot be ignored
because every word used by the Legislature is presumed to carry
some meaning. If the Legislature intended only to prohibit sale or
lease, then there was no necessity of adding the words "or
otherwise". Their inclusion indicates that the prohibition is
intended to cover not only legal methods of transfer but also other
arrangements through which the allottee may part with possession
or enjoyment of the rehabilitation tenement. Therefore, while
interpreting this provision, the Court cannot confine itself to
registered sale deeds or lease deeds. The Court is required to see
the effect of the transaction and whether another person has been
allowed to enjoy the tenement. The restriction continues during
the first five years because the Legislature wanted the allottee to
remain in occupation and receive the benefit of rehabilitation.
Even after completion of five years, the allottee does not get an
unrestricted right to transfer the premises. Permission of the Slum
Rehabilitation Authority is still necessary, and the prescribed
procedure has to be followed. This indicates that the Legislature
intended to maintain supervision over transfers even after expiry



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of the lock-in period so that the object of the rehabilitation scheme
is not defeated.

18.   Sub-section (2) provides for the consequence if the
restriction contained in sub-section (1) is violated. If the
Competent Authority, after considering the available material,
comes to the conclusion that the allottee has transferred the
rehabilitation     tenement contrary to the prohibition, it is
empowered to direct eviction of the person found in possession.
Such consequence is serious because it may result in loss of
possession of the rehabilitation premises. At the same time, the
Competent Authority cannot pass an eviction order merely because
a complaint has been received or because some suspicion has
arisen. Before taking such action, the statute requires that a
reasonable opportunity must given to the concerned person to
show cause. The authority has to consider the explanation,
examine the documents and other material produced by both sides
and satisfy itself whether there has been a prohibited transfer.
After such satisfaction can an eviction order be passed. Thus, while
the Act gives powers to protect the rehabilitation scheme, it
requires that those powers should be exercised after following the
principles of natural justice.

19.   On careful reading of Section 3E, it appears that the scheme
proceeds in three separate stages. At the first stage, the Competent
Authority has to examine the material available on record and
determine whether there has in fact been a transfer prohibited
under Section 3E(1). Such satisfaction must be based on material
from which it can be inferred that the allottee has parted with



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possession of the rehabilitation tenement. At the second stage,
before recording any adverse finding, the affected person has to be
given a reasonable opportunity of hearing. At the third stage, after
considering the explanation and recording satisfaction that there
has been a prohibited transfer, the Competent Authority may
exercise its power of eviction against the person found in
possession.

20.   The object of Section 3E is not confined only to preventing
direct transfers through registered sale deeds, gift deeds or lease
deeds. The Legislature has adopted wider language so that indirect
methods of transferring the rehabilitation tenement also do not
escape the prohibition. It is for this reason that the expression "or
otherwise" has been used after mentioning sale, gift, exchange and
lease. These words enlarge the scope of the provision and require
the Court to examine the real nature of the transaction. A person
may not execute a registered sale deed and yet may hand over
possession of the rehabilitation tenement to another person
through some arrangement. If such arrangements are excluded
from the scope of Section 3E because no registered conveyance
exists, then the purpose of the provision may be defeated.
Therefore, while considering an alleged breach of Section 3E, the
Court has to see the effect of the arrangement. If the allottee has
parted with possession of the tenement during the lock-in period,
such arrangement may still come within the prohibition even
though it may not amount to a formal sale, gift, exchange, or
lease. Any narrow interpretation of the words "or otherwise" would
make those additional words unnecessary and would permit



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parties to achieve indirectly what the statute prohibits. Such an
interpretation would defeat the object of the Act and, therefore,
cannot be accepted. Therefore, the expression "or otherwise" needs
to receive a purposive interpretation so that the legislative purpose
behind Section 3E is protected, and the benefit intended for
allottees is not diverted.

21.   The Supreme Court in Lila Vati Bai v. State of Bombay
(1957) 1 SCC 411 considered the expression "or otherwise". The
argument that these words should be given a narrow meaning was
not accepted. The Supreme Court observed:

      "Those words are not words of limitation but of extension so
      as to cover all possible ways…"
22.   The Supreme Court further observed:

      "The Legislature... intended to cover all possible cases... due
      to any reasons whatsoever."
23.   These observations show that the words "or otherwise" have
been used in a wide manner. They are not meant only for
transactions similar to sale, lease or assignment. The intention of
the Legislature appears to be that every possible method by which
the statutory restriction can be avoided should also come within
the provision. This Court in Vinayakrao v. State of Maharashtra,
AIR 1976 Bom 10 applied the same principle while interpreting
Section 31 of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act. The Court did not accept the
argument that only a sale or similar transaction would attract the
provision. It held that the instances mentioned in the statute "are
not exhaustive" and "the word 'otherwise' has been used". The



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Court observed that the expression has "an extended meaning" and
would include even those transactions which may not amount to
sale, mortgage, lease, gift, or exchange but which result in transfer
of the holding.

24.   Again, the Cordinate Bench in Naginbhai Lallubhai Patel v.
Union Territory of Dadra and Nagar Haveli (2003) 3 Mah LJ 678
held that the word "otherwise" "is not a word of limitation but
extension" and that it has been used "to plug all avenues of
escape". The Court held that the Legislature intended to include
every possible mode by which occupancy rights may effectively
pass to another person even though such transaction may not
strictly answer the description of sale, mortgage, lease or
exchange.

25.   Therefore, all the above judgments lay down one principle.
Whenever the Legislature uses the expression "or otherwise" after
mentioning recognised modes of transfer, the Court cannot restrict
the provision only to registered documents. The Court is required
to see the real nature and effect of the transaction and whether, in
substance, the allottee has parted with possession of the premises
in such manner that the object of the statute gets defeated. For this
reason, I am unable to accept the submission of the petitioner that
merely because no registered conveyance has been executed,
Section 3E becomes inapplicable. If such interpretation is accepted,
the words "or otherwise" used by the Legislature would become
meaningless. Every word used by the Legislature has to be given its
proper effect and no part of the statutory provision can be ignored
while interpreting its intention.



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26.   At the same time, merely because the expression "or
otherwise" has a wider meaning, it cannot be said that the
authorities are free from proving the necessary facts. The
authorities are still required to place material showing that there
was in fact a prohibited transfer within the meaning of Section 3E.
Mere assumption cannot take the place of proof. Though the
expression "or otherwise" extends the category of prohibited
transactions, the basic facts showing that the allottee had parted
with possession are required to be established from the record.

27.   Respondent No. 4 relied upon the background relating to the
original occupant. According to respondent No. 4, his grandmother
Vithabai Shivram Ruke was the original occupant and Photopass
holder. It was further alleged that the petitioner, by playing fraud
upon the authorities, got her name entered in Annexure II and
thereafter secured allotment of the rehabilitation tenement. These
allegations are serious. However, the present proceedings arise out
of action taken under Section 3E. The scope of inquiry under
Section 3E is confined to the question whether the allotted
rehabilitation tenement has been transferred in breach of the
statutory restriction. It is not a proceeding for deciding rival claims
regarding eligibility or allegations of fraud while preparing
Annexure II. Such questions may have relevance in separate
proceedings, but they cannot conclude the issue arising under
Section 3E. Therefore, these allegations cannot decide the present
controversy.

28.   Respondent No. 4 also relied upon the inspection carried out
on 5 May 2015. The inspection report records that respondent No.



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3 was residing in the flat. Thereafter, the Assistant Registrar
submitted his report to the Deputy Collector and the Deputy
Collector recommended initiation of proceedings under Section
3E(2) after recording that the original allottee was not residing in
the rehabilitation tenement. The inspection report is, in my
opinion, an important piece of material. It records that respondent
No. 3 was found occupying the premises during inspection. The
Inspection Officer also recorded her statement that she was
residing in the flat on rent. This circumstance cannot be ignored
because it relates to the issue whether the original allottee
continued to occupy the allotted rehabilitation tenement.

29.   The petitioner attempted to explain this circumstance by
relying upon the Power of Attorney executed in favour of Nitin
Patel. According to the petitioner, possession was permitted under
that arrangement and no ownership rights were transferred in
favour of Nitin Patel. A Power of Attorney by may not amount to
transfer of property. At the same time, the Court cannot merely go
by the title of the document. The real effect of the arrangement is
required to be seen. The document authorised Nitin Patel to
remain in possession with his family. Thereafter, during inspection,
respondent No. 3 was found residing in the premises as a tenant.

30.   The record further shows that respondent No. 3 informed the
Inspection Officer that she was residing in the flat on rent. Nothing
has been placed before this Court to show that such statement was
later withdrawn. No material has been produced to establish that
the authorities wrongly noted the said statement.




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31.   The No Objection Certificate issued by the Society stating
that Nitin Patel had been residing in the flat for many years does
not support the petitioner's case. At the highest, it indicates that
Nitin Patel remained in occupation for a considerable period. It
does not explain how respondent No. 3 thereafter came into
possession as a tenant. It also does not show that the original
allottee herself remained in occupation of the rehabilitation
tenement.

32.   After considering the material placed on record, I find that
absence of a registered sale deed or lease deed is not sufficient
because Section 3E prohibits transfer "by way of sale, gift,
exchange, lease or otherwise". The judgments of the Supreme
Court as well as this Court hold that the words "or otherwise" are
required to receive a wider meaning so that indirect methods of
transfer may come within the statutory prohibition. Therefore,
where actual possession of the rehabilitation tenement has been
parted with in favour of another person during the prohibited
period, such arrangement may attract Section 3E even though no
formal conveyance has been executed.

33.   The circumstances appearing from the record show that the
original allottee was not found residing in the rehabilitation
tenement. A Power of Attorney had been executed placing another
person in possession. Thereafter, during inspection, respondent No.
3 was found occupying the premises as a tenant. The
recommendation made by the competent officers was also founded
upon these circumstances. When all these circumstances are read
together, they provide sufficient material for the authorities to



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form an opinion that the allottee had transferred the rehabilitation
tenement in a manner prohibited under Section 3E.

34.   The material available on record, when appreciated as a
whole and in the light of the interpretation placed upon the
expression "or otherwise" by the Supreme Court and this Court,
supports the conclusion that the prohibition contained in Section
3E stood attracted. Therefore, I do not find any perversity,
jurisdictional error or other legal infirmity in the impugned orders
requiring interference under Article 226 of the Constitution.

35.   In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:

      (i)    The Writ Petition is dismissed;

      (ii)   The impugned order passed by the Competent
      Authority under Section 3E of the Maharashtra Slum Areas
      (Improvement, Clearance and Redevelopment) Act, 1971
      and the order passed by the Appellate Authority are upheld;

      (iii) Rule is discharged.

      (iv) In the facts and circumstances of the case, there shall
      be no order as to costs.

      (v)    Pending Interim Applications, if any, do not survive and
      stand disposed of accordingly.

                                               (AMIT BORKAR, J.)




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