R.G. Ketkar, J.
Rule. With the consent of counsel, the Rule is made returnable forthwith. Counsel for the Respondents waive service. By consent, the Petition is taken up for final hearing.
2. By this Petition under Article 226 of the Constitution the Petitioner has prayed for the issuance of a writ of Mandamus or any other writ, order or direction to the First Respondent-Maharashtra Housing and Area Development Authority ("MHADA") to declare the Second and Third Respondents as ineligible for allotment of a flat in Scheme Code No.238 of MHADA Lottery Scheme 2010 and to process the wait list of the eligible candidates in a time bound manner.
3. The facts and circumstances giving rise to the filing of the Petition, briefly stated, are as follows: The Petitioner and the Second and Third Respondents applied for allotment of a flat in a housing scheme of MHADA, viz.,Scheme No.238. The Petitioner was declared to be eligible for allotment of a flat and his name appeared at Sr.No.6 in the wait list. Presently, the Petitioner is at Sr.No.2 in the wait list. It is the case of the Petitioner that the Second and Third Respondents are ineligible for the purpose of allotment of a flat in the scheme on the ground that they do not fulfill condition no.1.2 which stipulates that the applicant or his or her spouse or minor children should not have any residential room or premises or any residential plots of land in his/her/their name/names, which are acquired privately and which fall within the boundaries of the Municipal Corporation of Greater Mumbai. It is on this basis the Petitioner has instituted the present Petition for the aforesaid reliefs.
4. On behalf of the First Respondent, the Deputy Chief Officer has filed an affidavit on 23 August 2012. It is contended that initially the Third Respondent was declared ineligible as she did not submit Income Certificate/Affidavit as prescribed in "B" Format as also Income Affidavit of her husband as prescribed in "C" Format. By an order dated 27 September 2010 the Deputy Chief Officer held that the Third Respondent is ineligible and if she desires to file an appeal, she may file an appeal before the Appellate Authority, the Director of Marketing. The Third Respondent thereafter submitted Income Affidavits and accordingly a provisional offer letter dated 7 October 2010 was issued. It was further contended that the First Respondent received a complaint from the Petitioner that the husband of the Third Respondent has a residential flat in Mumbai. The First Respondent, it is stated, will take an appropriate decision in the matter.
5. In so far as the allotment in favour of the Second Respondent is concerned, it was further contended that after scrutiny of the documents submitted by the Second Respondent, by an order dated 21 July 2010 the Second Respondent was declared ineligible on the ground that her husband has premises in his name within the jurisdiction of the Corporation. Aggrieved by this order the Second Respondent an preferred appeal before the Appellate Authority and submitted (i) a Sale Deed dated 31 May 2010; (ii) an Agreement to Sell dated 18 November 2009; and (iii) a Leave and Licence Agreement dated 7 August 2009. After considering these documents the Appellate Authority allowed the appeal and set aside the order dated 21 July 2010. It was therefore prayed that the petition may be dismissed with compensatory costs.
6. Opposing the admission, the Second Respondent has made an affidavit dated 22 August 2012 inter alia contending that though Room No.17, situate in Kumar Sadan, "D" Wing was in the name of her husband, he had agreed to sell the premises on 18 November 2009 for a consideration of Rs. 13,00,000 of which Rs.50,000 was received by cash on the date of the execution of the agreement and the balance was to be paid by cheque. On realization of the cheques and upon payment of full consideration, the amount of Rs.50,000 was to be returned. It is further asserted that under a Leave and Licence Agreement dated 7 August 2008 the Second Respondent acquired flat No.187 in Alshms Apartments which was further extended by another agreement dated 7 August 2009. The Second Respondent claims that along with her family she was residing in the flat taken on leave and licence basis. The Agreement to Sell was registered on 31 May 2010 and a Sale Deed was executed on 31 May 2010 and the purchasers had paid Rs.13,00,000 by way of cheques, details whereof were set out in the affidavit. It is the case of the Second Respondent that the result of the lottery was declared on 18 May 2010 and before that, i.e. on 16 May 2010 an amount of Rs. 8,00,000 out of the total consideration of Rs.13,00,000 was received from the purchasers and the remaining amount of Rs. 5,00000/- was received on 26 May 2010. The Second Respondent applied in the prescribed form on 22 January 2010 to MHADA for allotment of a flat and before the submission of the application, on 18 November 2009 the Second respondent's spouse has agreed to sell the flat owned by him. The submission of the Second respondent is that she has not violated condition 1.2 laid down in the Information Booklet whereby the Applicant or her husband should not own any residential premises within the limits of the Municipal Corporation.
7. The Third Respondent made an affidavit dated 8 September 2012 resisting the Petition. It was denied that the Third Respondent is not eligible. It was submitted that on the basis of Exhibits "E" and "F" he was issued a show cause notice calling upon him to produce relevant documents before the First Respondent. The Third Respondent has submitted all the supporting documents on 9 January 2012. He therefore prayed that the petition may be dismissed.
8. In support of the petition, Counsel contended that the Second and Third Respondents are not eligible for allotment of a flat under Scheme Code No.238 of the MHADA Lottery Scheme 2010. He submitted that on the date of the application the Second and Third Respondent were disqualified in terms of clause 1.2 of the Information Booklet. He submitted that insofar as the Second Respondent is concerned, the Agreement to Sell dated 18 November 2009 is not a registered instrument. The Sale Deed was executed on 31 May 2010 and thus the right, title and interest in the flat owned by the spouse of the Second respondent was extinguished after the execution of the Sale Deed only on 31 May 2010. Thus as on the date of the Application on 22 January 2010 and on the date of the drawal of a lottery on 18 May 2010 the Second Respondent was ineligible as her spouse had residential premises on ownership basis. He drew our attention to documents annexed to the Petition as also the submissions made by the Officers of the MHADA and the orders passed.
9. Counsel appearing on behalf of the Second Respondent submitted that the Agreement to Sell was executed on 18 November 2009. Prior thereto, a Leave and Licence was executed on 7 August 2008 whereunder the Second Respondent acquired the premises of Flat No.187 and the said agreement was renewed on 7 August 2009. The Agreement to Sell dated 18 November 2009 was registered on 31 May 2010 and on the same day the Sale Deed was executed. Thus, the Second Respondent or her husband does not have, it is urged, residential premises on ownership basis. The Second respondent, it is urged, is eligible for applying and is also entitled to the allotment of a flat.
10. Counsel appearing on behalf of the Third respondent submitted that on the basis of a complaint made by the Petitioner, MHADA issued a show cause notice. The Third Respondent has given reply along with supporting documents and since the competent authority is seized of those proceedings, no interference is called for.
11. Counsel appearing on behalf of the First Respondent supported the decision taken by MHADA insofar as the Second Respondent is concerned. He submitted that the spouse of the Second Respondent had agreed to sell the residential premises on 18 November 2009 and a Sale Deed was executed on 31 May 2010. The Appellate Authority, it is urged, rightly came to the conclusion that the transaction of the Agreement to Sell was entered into prior to the publication of an advertisement inviting applications for allotment of flats and, therefore, the Second Respondent was eligible for applying for allotment of a flat. Insofar as the Third Respondent is concerned, he submitted that the authorities of MHADA will take an appropriate decision on the show cause notice.
12. We have considered the rival submissions made by the learned counsel appearing for the parties. We have also perused the material on record.
13. The application dated 22 January 2010 made by the Second Respondent shows that at Sr.No.5 while dealing with the present residential address along with Pin Code, the Second Respondent had mentioned her address as under :
"KUMAR SADAN 'D' WING ROOM NO.-17
3RD FLR, NEW HALL ROAD, KURLA, WEST.
DISTRICT MUMBAI, PIN 400070."
Sr.No.20 deals with details about the present accommodation and the response reads as under:
"20. Details about present accommodation:
I. Whether rental or on ownership basis - OWNERSHIP
II. In whose name the tenancy or ownership stands. -ABBAS ALI SADRIWALA"
On that application the Legal Advisor of MHADA observed that the application made by the Second Respondent was liable to be dismissed. The Legal Advisor also considered the Agreement to Sell purportedly executed on 18 November 2009 which is not registered but is only notarized. By virtue of the Agreement to Sell, ownership was not transferred and therefore at the time of the application the spouse of the Second Respondent owned a tenement in the area of the municipal Corporation.
14. Pursuant thereto, a communication dated 21 July 2010 was addressed to the Second Respondent informing her that on a scrutiny of her application she was found to be ineligible on the ground that her husband owns residential premises within the municipal limits of the Corporation. Clauses 4 and 5 of the Agreement to Sell dated 18 November 2009 read as under:
"4. It is agreed that after clearing of the above said cheques (details given in receipt column) the Vendor undertake to return/refund Rs.50,000/- of advance/token to the purchasers."
"5. That the Vendor handed over the actual, physical possession of said premises along with all the documents to the Purchaser, permanently/forever within 7 months after clear the cheque payment".
Though Clause 4 provided that details of the cheques will be given in the receipt, the receipt attached to the Agreement to Sell does not give any such details.
15. Clause 5 of the Agreement to Sell shows that the vendor (i.e.the spouse of the Second Respondent) was to hand over actual physical possession of the said premises along with all the documents to the purchaser within seven months after the cheques were cleared. The details of payment mentioned in paragraph 5 of the affidavit show that the cheques were issued between 6 May 2010 and 26 May 2010. Thus on the date of the application (22 January 2010) as also on 18 May 2010 the entire consideration was not received by the spouse of the Second Respondent and consequently there was no question of handing over possession of the flat to the purchaser. It is also not in dispute that the Agreement to Sell dated 18 November 2009 was registered on 31 May 2010 and the Sale Deed was also executed on the same date. In other words, the husband of the Second Respondent was divested of his right, title and interest only on and after 31 May 2010. Thus when the application was submitted on 22 January 2010 and even on the date of the drawal of lottery on 18 May 2010, the Second Respondent was ineligible for applying for allotment of a flat.
16. In exercise of the powers conferred by the Maharashtra Housing and Area Development Act, 1976 and of Rule 17 of the Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981, MHADA with the previous sanction of the Government of Maharashtra has made Regulations, namely the Maharashtra Housing and Area Development (Estate, Management, Sale, Transfer and Exchange of Tenements) Regulations, 1981 (" the Regulations"). Regulation 7 provides for issuing a notice inviting applications for allotment of tenements and lays down that the said notice shall specify, among other things, such terms and conditions of allotment as may be decided by the Chief Officer. Regulation 9(1)(A) reads as under:
"A person shall not be eligible to apply for any tenement in municipal area if he or his/her spouse or his/her minor children own a house or a flat or a residential plot of land or holds on a hire-purchase basis or outright sale basis or on a rental basis form the Maharashtra Housing and Area Development Authority a house or a flat or a residential plot of land in his/her name or in the name of his/her minor children as the case may be, in such a municipal area."
The above provision shows that a person shall not be eligible to apply for any tenement in a municipal area if his/her spouse or his/her minor children own a house or a flat or a residential plot of land. Clause 1.2 of the Information Booklet reads as under :
"1.2 The applicant or her husband or his wife or their minor children should not have any residential room premises or any residential plots of lands in his/her/their name/names, which is/are acquired privately by her/him/them and which is falling within the boundaries/jurisdiction of the Municipal corporation of Greater Mumbai area authority."
"And in similar way the applicant or her husband or his wife or their children of minor age (below 18 years) should not have any residential room premises or any residential plots in his/her/their names which is/are being allotted to him/her/them by the MHADA authority on Rental basis/lease basis or the above said applicant or her husband or his wife should not be a member of any registered cooperative Housing Society, which is lying and being situated on the plot of land property, of the MHADA authority at the time date of making application by the interested buyers to the MHADA authority."
17. In view of Regulation 9(1)(A) read with clause 1.2 of the Information Booklet, we are more than satisfied that the Second Respondent was not eligible to apply for allotment of a flat in Scheme Code No.238 of the MHADA Lottery Scheme 2010.
18. It would also be instructive to refer to the details of the cheque payments made to the husband of the Second Respondent. The details are as under:
| Sr.No. | Mode of payment Cheque No. | Date | Drawn on | Amount |
| 1) | 171414 | 06.5.2010 | H.D.F.C. | 2,00,000/- |
| 2) | 171415 | 26.5.2010 | H.D.F.C. | 50,000/- |
| 3) | 171431 | 06.5.2010 | H.D.F.C. | 2,00,000/- |
| 4) | 171432 | 26.5.2010 | H.D.F.C. | 50,000/- |
| 5) | 232001 | 16.5.2010 | Bombay M.C | 1,50,000/- |
| 6) | 232004 | 26.5.2010 | Bombay M.C | 2,00,000/- |
| 7) | 232025 | 06.5.2010 | Bombay M.C | 1,00,000/- |
| 8) | 232026 | 16.5.2010 | Bombay M.C. | 1,50,000/- |
| 9) | 232027 | 26.5.2010 | Bombay M.C. | 2,00,000/- |
20. Insofar as the case of the Third Respondent is concerned, we direct that the First Respondent shall issue a show cause notice to the Third Respondent, if not already issued, and after hearing all the concerned parties including the Petitioner and the Third Respondent shall pass appropriate orders in accordance with law within a period of three months from the production of an authenticated copy of this order. We keep all contentions of the parties open as regards the Third Respondent.
21. In the light of the aforesaid discussion, the Petition is disposed of in the following terms:
(i) The allotment made in favour of the Second Respondent is hereby cancelled and the amount paid by the Second Respondent shall be refunded within fifteen days of an application being made by the Second Respondent;
(ii) The First Respondent - MHADA is directed to issue a show cause notice issued to the Third Respondent (if not already issued) and after hearing all the concerned parties including the Petitioner and the Third Respondent to pass appropriate orders in accordance with law within a period of three months from the production of an authenticated copy of this order;
(iii) In view of the cancellation of the allotment of the flat allotted to the Second Respondent, the authorities of MHADA shall proceed to allot the said flat in accordance with law.
(iv) Rule is partly made absolute in the aforesaid terms. There shall, however, be no order as to costs.
22. On the declaration of the judgment, learned Counsel appearing on behalf of the Second Respondent prays for stay of the operation of the judgment and order in order to enable the Second Respondent to seek recourse to the remedies in appeal. The directions contained in sub paras (i) and (iii) of Para 21 of the order are stayed for a period of eight weeks from today subject to the Second Respondent filing an undertaking before this Court within a period of one week from today not to create any third party rights in respect of the premises.