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CASE NO.: Appeal (civil)  3334 of 2008

PETITIONER: Indian Mercantile I.B. Assn. (Tenants) & Ors.

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 06/05/2008

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT

                                      REPORTABLE             IN THE SUPREME COURT OF INDIA

             CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO. 3334 OF 2008          (Arising out of S.L.P. (C) No.17165 of 2006)

Indian Mercantile I.B. Assn. (Tenants) & Ors.           ...Appellants

                     Versus

Union of India & Ors.                                   ...Respondents

                       JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   Leave granted.

2.   Challenge in this appeal is to the order dated 25th

August, 2006 passed by a Division Bench of the Bombay High

Court dismissing the writ petition filed by the appellants on

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the ground that they have an alternative statutory remedy by

way of 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 ordered

 as follows:

              "Permission to file additional documents            is granted. The additional documents are            taken on record.

               Issue notice.

              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            under the Public Premises Act.

             In the meantime, there shall be status            quo as regards possession."

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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. It is stated that the Mumbai Building Repairs and

 Reconstruction 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 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 & 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

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 May, 1987 the appellants filed application before the

 Executive Engineer, Cooperative Housing Societies, Repair

 and Reconstruction Cell 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. 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 in terms of Section 103A of the MHAD Act, the

 appellants are not entitled to any relief. Reliance 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 was

 made much earlier in May, 1987. It is fairly accepted by

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 learned counsel for the respondents that the nature of the

 relief in terms of prayer (B) in the writ petition cannot be

 granted under the Act.    Above being the position, we set

 aside the impugned order of the High Court and remit the

 matter to it for fresh disposal in accordance with law. The

 interim order dated 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 such interim protection as is

 available in law.   We make it clear that we have not

 expressed any opinion on the merits of the case.

7. Appeal is allowed to the aforesaid extent without any order

 as to costs.

                                ..........................................J.                                  (Dr. ARIJIT PASAYAT)

                                .........................................J.                                  (LOKESHWAR SINGH PANTA New Delhi, May 6, 2008