Supreme Court of India
INDIAN MERCANTILE I.B. ASSON. (TENANTS)versusUNION OF INDIA AND ORS.
- Citation
- 2008 INSC 598
- Decided
- 6 May 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
Relief under Section 103-A of the Maharashtra Housing and Area Development Act cannot be granted in an appeal, rendering the High Court's dismissal erroneous.
Summary
The appellants, tenants under the Indian Mercantile Association, filed a writ petition under Section 103-A of the Maharashtra Housing and Area Development Act, 1976, seeking relief that the High Court dismissed on the ground that an alternative statutory remedy—an appeal—was available. The appellants contended that relief under Section 103-A cannot be granted in an appeal and that the High Court erred in its conclusion. The Supreme Court examined whether the proviso to Section 103-A, inserted in 1989, applied to an application filed in 1987 and held that the relief sought could not be granted through an appeal. Consequently, the Court set aside the High Court’s order and remitted the matter for fresh consideration on its merits. The interim status‑quo order was upheld for eight weeks, and the appeal was allowed without costs.
Issues considered
- Whether the High Court was correct in holding that an alternative statutory remedy (appeal) was available, thereby dismissing the writ petition under Section 103-A of the MHAD Act.
- Whether relief sought under Section 103-A of the Maharashtra Housing and Area Development Act can be granted in an appeal.
- Whether the proviso inserted into Section 103-A in 1989 applies to an application filed in 1987.
Legislation cited
- Constitution of Indias. Article 226
- Maharashtra Housing and Area Development Act, 1976s. 103, s. 103-A, s. 92
Subjects
Writ petitionSection 103-AMaharashtra Housing and Area Development ActAlternative statutory remedyAppealReliefSupreme CourtPublic Premises ActAcquisition proceedings
Judgment
[2008] 7 S.C.R 916
•
A INDIAN MERCANTILE 1.B. ASSON. (TENANTS)
V.
UNION OF !NOIA AND ORS.
(Civil Appeal No. 3334 of 2008)
MAY 6, 2008
B ~
[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH
PANTA, JJ.]
Maharashtra Housing and Area Development Act, 1976
- s. 103-A - Writ petition before High Court seeking relief under
c the Act - Dismissal of on the ground of availability of
alternative remedy - On appeal, plea that alternative remedy
was not available as relief in terms of s 103-A could not be
granted in appeal - Held.· In view of the fact that it has been
admitted by the opposite party that relief was sought u/s 130- j,o
D A, matter remitted to High Court for disposal on merits - '(
Constitution of India. 1950 - Article 226.
CIVIL APPELLATE JURISIDICTION : Civil Appe:::I No.
,.'
3334 of 2008.
l
E From the Order dated 25.8.2008 of the High Court of
Juudicature at Bombay in WP No. 213012006.
Harish N. Salve, MY Deshmukh, Neetu S. Chauhan and
Rameshwar Prasad Goyal for the Appellant.
F Gopal Subramanium, ASG., M.L. Verma, Arvind Kumar,
~
Poonam Prasad, Laxmi Arvind, Dattatray Vyas, Mahima C.
Shroff, Chirag M. Shroff and Sunil Kumar Verma for the
Respondents.
The Judgment of the Court was delivered by
G
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order dated 25th ~
August, 2006 pc:issed by a Division Bench of the Bombay High
Court dismissing the writ petition filed by thi:~ appellants on tre
H 916
INDIAN MERCANTILE 1.B. ASSON. (TENANTS) v. 917
. UNION OF INDIAAND ORS. [DR ARIJIT PASAYAT, J.]
"
ground that they have an alternative statutory remedy by way of A
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 B
ordered as follows:
"Permission to file additional documents is granted. The
additional documents are taken on record.
Issue notice. c
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 ur1der the Public Premises Act.
D
In the meantime, there shall be status quo as regards
possession."
E
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.
...,
.",
.J. It is stated that the Mumbai Building Repairs and Reconstruction F
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 G
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 H
918 SUPREME COURT REPORTS [2008] 7 S.C.R.
'
A & 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 May, 1987 the
appellants filed application before the Executive Engineer,
Cooperative Housing Societies, Repair and Reconstruction Cell
B 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.
c 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
D in terms of Section 103A of the MHAD Act, the appellants are ...
(
not entitled to any relief. ReliancP 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
E
was made much earlier in May, 1987. It is fairly accepted by
learned counsel for the respondents that the nature of the relief
in terms of prayer (B) in the writ petition cannot be granted under b
.,:
the Act. Above being the position, we set aside the impugned
order of the High Court and remit the matter to it for fresh
F disposal in accordance with law. The interim order dated ... 4
1.>'
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
f..=.':'
such interim protection as is available in law. We make it clear
that we have not expressed any opinion on the merits of the
G case.
7. Appeal is allowed to the aforesaid extent without any
order as to costs.
K.K.T. Appeal allowed.
H
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