Shri Jahid Moharam Shaikh v. Bombay Housing and Area Development Board

1. Bombay Housing and Area ) Development Board, ) Griha Nirman Bhavan, Bandra,) Bombay - 400 051 )

2. Smt. Amina Jokhai )

3. Shri Majid Jokhai ) Both of Bombay Indian ) Inhabitants, Residing at ) Shiv Shakti Vegetables Market) Opp. Building No.18, )

ANIL TIKAM Park Site, Vikhroli, ) Bombay- 400 079 )...Respondents ***** Mr. Nitin V. Gangal a/w. Ashok D. Kadam and Prerna Shukla for Appellant. CORAM: SANDEEP K. SHINDE,J. RESERVED ON:26TH APRIL,2022 PRONOUNCED ON:6TH JUNE, 2022

JUDGMENT

1. Appellant -Defendant No.2, in Short Cause Suit No. 2649 of 1992 has preferred this appeal against the judgment and decree dated 28th September, 2004 by which Judge, City Civil Court, Mumbai held that transfer of tenancy by Bombay Housing and Area Development Board (Board for short) in respect of suit tenement, is illegal and directed Appellant- Defendnat No.2 to hand over vacant and peaceful possession of the suit premises to the Plaintiff- Respondent No.1 herein within three months from the date of the judgment.

2. In brief facts of the case are as under. Office of the Estate Manager, Maharashtra Housing Board, vide allotment letter dated 11th February, 1963 allotted two rooms tenement No.331/4033 to Jokhai Gafoor, husband of Plaintiff No.1 (died pending suit) and father of Plaintiff No.2, at Tagore Nagar, Vikhroli under Slum Dwellers Rehabilitation Scheme. The allotment letter reveals that allotment was subject to a tenancy agreement and other rules of the Maharashtra Housing Board. In the year 1969 due to illhealth, Jokhai Gafoor (Allottee) left to native place and died over there, in 1972, leaving behind Plaintiffs and Defendant Nos.[3] and 4 his only his heirs and legal representatives. Plaintiffs' case is Mr. Jokhai, while leaving to native place had appointed Mr. Rajjabali Subrati, to take care of the suit premises. Plaintiffs would assert that often they requested Rajjabali Subrati to vacate and hand over possession of the suit premises, but to not avail. Their further case is, that in the year 1975, when they visited the suit premises, they found Defendant No.2 (Appellant) was in possession of the suit premises, who then informed them that Rajaballi had inducted him in the suit premises. Whereafter, although they requested Defendant No.2 to hand over the possession of the suit premises, he avoided to hand over the possession on one or another pretext. In fact, evidence of Defendant No.2 (Appellant) reveals, that Mr. Rajjaballi Subrati sold suit premies to him for Rs.18,000/-. Whereas, evidence of Defendant No.4 suggest, that he inducted, appellant in the suit premises, and thereafter initiated proceedings against the appellant in Court of Metropolitan Magistrate for committing offence of criminal trespass. At any rate, it is Board's (MHADA) case that, in the course of regular inspection, Defendant No.2-appellant, was found occupying the suit premises, without authority. Whereafter, Board, initiated action u/s.66 of the Act, to evict him (Appellant). Anyway, Plaintiffs' would plead that although they came to know in the year 1975, that the Defendant No.2 was occupying the suit premises without authority, they did not initiate proceedings, to recover possession from him, reason being, the Defendant No.2 had assured to hand over possession to them. Anyway, vide order dated 10th of July, 1991, the Board, transferred the tenancy in respect of suit premises in the name of Defendant No.2, upon certain terms and conditions, more particularly set out therein. Upon learning this fact, the Plaintiffs instituted the suit in April,1992, contending that the Defendant Board couldn't have been transferred the tenancy in the name of Appellant-Defendant No.2, without making inquiry, as to heirs of Jokhai Gafoor, entitled to succeed the tenancy, qua the suit premise. Thus,suit was instituted, to recover possession of the suit premises and to declare that order dated 10th July, 1991 issued by the Board, inter alia, transferring the suit premises in the name Appellant-Defendant No.2 was illegal.

3. The Learned Trial Court decreed the suit as stated above and thus, this appeal.

4. Heard Mr. Gangal, learned counsel for the Appellant. None appears for the Respondents. Perused the record and proceedings.

5. Mr. Gangal, learned counsel for the Appellants submitted, besides merits, the trial court, ought to have dismissed the suit, as was hopelessely barred by limitation, in terms of Section 173 of the Maharashtra Housing and Area Development Act, 1976. Mr. Gangal submitted that limitation provided by this section for filing of suit is six months from the date of the act complained of. Mr. Gangal in support of, his submission, would submit that averments in paragraph 5 of the plaint and evidence of Plaintiff No.2, reveals that in the year 1975 the Plaintiffs noticed and found Appellant was occupying the suit premises without authority, and yet, did not institute the suit. In support of this submission, Mr. Gangal has taken me through the evidence of the Plaintiffs. The evidence on record convey, that, on 1st June, 1988, Mr. Munir Ahmed, Advocate, on behalf of the Plaintiff No.2 called upon the Appellant to vacate the suit premises. Whereafter notices issued in 1992 through Advocate Mishra, indicate and divluge, that the cause of action arose, in favour of Plaintiffs' to file the suit in the year 1992 itself. However, the suit was instituted in the year 2004. In the backdrop of this fact, let me now ascertain whether a suit was barred by limitation in terms of Section 173 of the Maharashtra Housing and Area Development Act, which reads as under: "173. Notice of suit against Authority, etc. No person shall commence any suit against the Authority of against any member of the Authority or of any Board or of any Panchayat or any officer or servant of the Authority or Panchayat or any person acting under the orders of the Authority or Board, or Panchayat for anything done or purporting to have been done in pursuance of this Act (including any contract thereunder), without giving to the Authority, member, officer or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of. And in the case of any such suit for damages, if tender of sufficient amends shall have been made before the action is brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender." Plain reading of this Section suggests, that two months’ previous notice in writing of the intended suit is mandatory to be followed by the institution of the suit, not after six months from the date of cause of action arose therefore. Mr. Gangal, learned counsel for the Appellant in support would not rely on the judgment of this Court in the case Arun Construction Company vs., Bombay Housing and Area Development Board, [2000(2) Bom. C.R. 450]. In Paragraph No.5 of the said judgment, this Court has held that, Section 173 lays down two requirements, for valid institution of a suit against the authority viz. 1; service of two months’ notice on the authority and 2; institution of the suit within six months from accural of cause of action. In the said judgment, reliance was placed on the judgment of the Supreme Court in the case of Trustees of Port of Bombay vs. Premier Automobiles and Anr. [AIR 1974 Supreme Court 923]. In the said case, the Hon. Supreme Court, was construing the provisions of Section 87 of the Bombay Port Trust Act. A comparison of the provisions of the 87 of the Bombay Port Trust Act and Section 173 of the Maharashtra Housing and Area Development Act, 1976, convey that provisions are of paramateria. Section 87 of Bombay Port Trust Act, also deals with limitation for institution of the suit. Thus, this court in the case of Arun Construction, has held thus, "to my mind, it is clear that section 173 does not deal with merely, with the period within which notice is to be given, but it clearly lays down the period of limitation for institution of a suit. Placing any other interpretation on the provisions of section 173 would amount to doing violence to the language in which the section is couched. It is thus clear that when the section lays down the period of six months it is referring to the commencing of the suit and not to the giving of the notice. It is clear that the said sectin in clear terms lays down that two months previous notice has to be given, to the authority who would be a party of the intended suit and the cause thereof and the suit has to be instituted within six months of the cause of action."

6. In this case, the Plaintiffs instituted the suit against the Authority i.e. Defendant No.1 seeking declaration that transfer of tenancy in respect of the suit premises in the name of the Appellant- Defendant No.2 was illegal. The evidence on record unerringly shows although the, 'cause of action', arose in 1988, for which the notice was issued to the Defendant Board in 1991, yet, suit was filed in the year 2004 i.e. six months after the accural of cause of action. Therefore, the suit was clearly barred by limitation and as such, was not maintainable. Thus having found that suit was, barred by limitation, I am not required to record findings on other points canvassed and raised by the Appellant. Therefore, the appeal is allowed, and in consequence, the impugned judgment and decree in Short Cause Suit No. 2649 of 1992, passed by the Judge, City Civil Court, Mumbai is quashed and set aside. Decree be drawn accordingly. Appeal is disposed of with no order as to cost. [SANDEEP K. SHINDE, J.]