Bombay High Court
Bhavana Bharat Jain vs Damanjit Kaur Singh Since Decd. Thr. Lrs … on 26 August, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:36715
-WP10545-2025+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10545 OF 2025
Bhavana Bharat Jain ...Petitioner
Versus
1. Damanjit Kaur Singh Since deceased
Through LRs Priya Prabhakar Rane
2. The Estate Manager (West) Division,
SANTOSH Maharashtra Housing and Area
SUBHASH Development Authority, Griha Nirman
KULKARNI
Bhavan, Bandra (East) Mumbai ...Respondents
Digitally signed by
SANTOSH
SUBHASH
WITH
KULKARNI
Date: 2025.08.26 WRIT PETITION NO. 10546 OF 2025
21:56:06 +0530
Bhavana Bharat Jain ...Petitioner
Versus
1. Damanjit Kaur Singh Since deceased
Through LRs Priya Prabhakar Rane
2. The Estate Msanager (West) Division,
Maharashtra Housing and Area
Development Authority, Griha Nirman
Bhavan, Bandra (East) Mumbai ...Respondents
Mr. Vishal Kanade, a/w Kartik Tiwari and Aditya Kanchan,
i/b Lakshyavedhi Legal, for the Petitioner in both
Petitions.
Mr. Ranjeet Thorat, Senior Advocate, a/w J. Damani, for
Respondent No.1 in both Petitions.
Mr. Aniesh S. Jadhav, a/w Shyam K. Singh and Rushikesh
Kekane, for Respondent No.2 in both Petitions.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 12th AUGUST, 2025
PRONOUNCED ON: 26th AUGUST, 2025
JUDGMENT:
–
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
1/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
2. These petitions under Articles 226 and 227 of the
Constitution of India call in question the legality, propriety and
correctness of a common judgment and order dated 1 st July,
2025 passed by the Appellate Officer in Appeal Nos.4 of 2017
and 1 of 2018, preferred by respondent No.1 and the Estate
Manager of Maharashtra Housing and Area Development
Authority (MHADA) (R2), respectively, under Section 70 of the
Maharashtra Housing and Area Development Act, 1976 (“the
MHAD Act”).
3. By the said common judgment and order, the Appellate
Officer was persuaded to allow the appeals and set aside an
order dated 17th January, 2017 passed by the Competent
Authority thereby dropping the eviction proceeding initiated by
the Estate Manager, MHADA under 66(1)(b) of the MHAD Act on
the premise that the petitioner was the unauthorized occupant
in respect of Plot Nos.356-376 RSC 37 admeasuring 100.02 sq.
mtrs. situated at Gorai, Borivali (West), Mumbai (“the subject
premises”), and direct the petitioner to hand over the vacant
possession of the subject premises.
4. The background facts necessary for the determination of
these petitions can be summarized as under:
2/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
4.1 Late Damanjit Kaur Singh had submitted an application
for allotment of a plot in the scheme floated by MHADA. Vide
communication dated 11th October, 1994, MHADA declared late
Damanjit eligible for allotment of the developed plot. Late
Damanjit deposited the lease premium of Rs.3,63,000/- and
advance lease rent of Rs.3,680/-. After the submission of the
acceptance letter, an Indenture of Lease dated 13th March, 1996
came to be executed by MHADA in favour of late Damanjit. The
possession of the subject premises was delivered to late
Damanjit on 15th April, 1996. The allottee was to construct a
building on the subject premises within three years from the
date of execution of the Lease Deed.
4.2 The petitioner claimed, late Damanjit was not in a position
to develop the plot and construct a building thereon. Thus, late
Damanjit had executed an Irrevocable Power of Attorney in
favour of Smt. Leeladevi Lohar on 22nd January, 1996. On the
strength of the said Irrevocable Power of Attorney Leeladevi
Lohar entered into a transaction to assign the leasehold rights
in the subject premises in favour of the petitioner. MHADA gave
approval for the assignment of the leasehold rights. Thereupon,
a registered Deed of Assignment came to be executed on 6 th
August, 2002 by and between late Damanjit, through her Power
3/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
of Attorney, the petitioner, and MHADA, as the confirming party.
The petitioner thereafter obtained the consent of MHADA to
develop the plot and also raise finance for carrying out the
development. Eventually, with the approval of the Planning
Authority the petitioner constructed a bungalow on the subject
premises.
4.3 Around the year 2012, respondent No.1 who claimed to be
the Constituted Attorney of late Damanjit, lodged complaints
with the Authorities in regard to the assignment of leasehold
rights in the subject premises and the construction of the
building thereon by the petitioner. It was, inter alia, alleged
that, on the strength of the false and fabricated documents the
subject premises came to be assigned in favour of the petitioner.
Allegations were made against Smt. Leeladevi Lohar, the
Constituted Attorney of Damanjit.
4.4 MHADA initiated an enquiry. On 5th December, 2012, the
Deputy Chief Executive Officer passed an order thereby
cancelling the assignment of the leasehold rights in the subject
premises in favour of the petitioner recording that the petitioner
had obtained the transfer of the leasehold rights by submitting
false and forged document. Transfer fee of Rs.50,000/-
deposited by the petitioner was forfeited.
4/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
4.5 On the strength of the aforesaid order, the Estate Manager
(R2) instituted proceeding before the Competent Authority,
MHADA, under Section 66 of the MHAD Act, being Case No.26
of 2013. The Competent Authority after appraisal of the
material on record and the evidence adduced by the parties
dropped the eviction proceeding observing that the transaction
between the allottee and petitioner appeared to be genuine and,
thus, the order dated 5th December, 2012 passed by the Deputy
Chief Officer cancelling the transfer of the leasehold rights in
favour of the petitioner was not sustainable. The fact that the
Deed of Assignment was a registered instrument and, thus, it
could not have been modified, varied or cancelled except by way
another registered instrument or by the order of the Competent
Court, weighed with the Competent Authority.
4.6 Being aggrieved, respondent Nos.1 and 2 preferred the
appeals before the Appellate Officer. By a common judgment
and order dated 3rd December, 2024, the Appellate Officer
allowed the appeals and set aside the judgment and order
passed by the Competent Authority.
4.7 The petitioner had challenged the said judgment and order
passed by the Appellate Officer in Writ Petition Nos.612 of 2025
and 618 of 2025. By an order dated 1 st April, 2025 this Court
5/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
allowed the aforesaid petitions and set aside the orders passed
by the Appellate Officer. It was, inter alia, observed that it was
incumbent upon the Appellate Officer to thoroughly examine the
legal effect of the cancellation order dated 5 th December, 2012,
evaluate its binding nature and then decide the appeals by
recording appropriate findings on the question whether such
cancellation has the effect of invalidating the petitioner’s
possession. The Appellate Officer was thus directed to decide
the appeals afresh on their own merits. The Appellate Officer
was also directed to pass appropriate orders regarding the
disbursement of the sum of Rs.50,00,000/- deposited by the
petitioner, pursuant to the interim order passed by this Court
on 15th January, 2025, in accordance with the final outcome of
the appeals.
4.8 The Appellate Officer, again heard the parties and passed
the impugned common judgment and order thereby allowing the
appeals and directing the petitioner to hand over the vacant
possession of the subject premises. As regards the
disbursement of Rs.50,00,000/- deposited by the petitioner, it
was ruled that the appropriate order would be passed after
receipt of the report from the Estate Manager in regard to the
amount that would be liable to be paid by the petitioner on
6/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
account of her unauthorized occupation of the subject
premises.
5. Being aggrieved, the petitioner has again invoked the writ
jurisdiction.
6. I have heard Mr. Vishal Kanade, the learned Counsel for
the petitioner, Mr. Ranjeet Thorat, the learned Senior Advocate
for respondent No.1, and Mr. Aniesh Jadhav, the learned
Counsel for respondent No.2, at some length. The learned
Counsel for the parties took the Court through the material on
record and the orders passed by the Competent Authority and
the Appellate Officer.
7. Mr. Kanade, the learned Counsel for the petitioner,
submitted that the impugned order suffers from the same
infirmities which had persuaded this Court to remit the matter
back to the Appellate Officer, with specific directions. In the
impugned order, the Appellate Officer has again committed the
very same mistakes and delved into the legality and validity of
the instruments executed by and between the parties, which
was clearly beyond the remit of the jurisdiction of the Appellate
Officer.
8. Amplifying the aforesaid submission, Mr. Kanade would
urge that the registered Deed of Assignment still holds the field.
7/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
It has not been declared null and void by any Competent Court.
Nor any proceeding has been instituted before the Civil Court
seeking declaration regarding the legality and validity of the said
Deed of Assignment. In this backdrop, according to Mr. Kanade,
the Appellate Officer committed a grave jurisdictional error in
pronouncing upon the legality and validity of the Deed of
Assignment and the other documents executed by and between
the parties.
9. Secondly, Mr. Kanade would urge, the Appellate Officer
lost sight of the fact that for over 10 years no grievance was
made regarding the legality and validity of the transfer of the
leasehold rights in favour of the petitioner. In the intervening
period, the petitioner had carried out development over the
subject premises and constructed a bungalow by obtaining
necessary permission from the Planning Authority and raising
finance from the Bank, with the approval of MHADA. The
absolute ownership of the petitioner over the superstructure,
constructed on the subject premises, is indisputable.
10. Mr. Kanade further submitted that the transfer in favour
of the petitioner could not have been lawfully cancelled by the
Deputy Chief Executive Officer by the order dated 5 th December,
2012, especially after a registered Deed of Assignment came to
8/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
be executed by MHADA as a confirming party. Therefore it was
not necessary for the petitioner to challenge the said order dated
5th December, 2012. At any rate, the Competent Authority had
examined the legality and validity of the said termination order
dated 5th December, 2012 and declared that the said
termination order was not legal and valid. In that view of the
matter, it was not open for the Appellate Officer to overturn the
findings of the Competent Authority by delving into the legality
and validity of the Deed of Assignment and the other documents
executed by and between the parties. Thus, the impugned order
warrants interference, submitted Mr. Kanade.
11. Mr. Thorat, the learned Senior Advocate for respondent
No.1, submitted that the petitioner does not deserve any relief in
exercise of discretionary writ jurisdiction. The material on
record would indicate that the petitioner had practiced an
egregious fraud on the original allottee and MHADA, and
obtained the transfer of the leasehold rights by placing reliance
on false and fabricated documents. Inviting the attention of the
Court to the sequence of the events and the nature of the
documents executed between the parties, Mr. Thorat would urge
that, the fraud is writ large. Thus, the Deputy Chief Executive
Officer, MHADA, was within his rights in terminating the
9/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
transfer of the leasehold rights in favour of the petitioner as the
documents were ex facie false and fabricated. Mr. Thorat further
submitted that mere registration of the Deed of Assignment does
not clothe it with legality and validity, when the approval of the
MHADA was obtained by pressing into service false and
fabricated documents. In these circumstances, the Appellate
Officer committed no error which would warrant correction in
exercise of extraordinary writ jurisdiction, submitted Mr. Thorat.
12. Mr. Jadhav, the learned Counsel for respondent No.2,
supplemented the submissions of Mr. Thorat. Attention of the
Court was invited to the execution of the NOC affidavit and
Indemnity Bond in favour of the petitioner on 25 th January,
1996, when the petitioner was not at all in the frame. This
factor coupled with the execution of the alleged irrevocable
Power of Attorney by late Damanjit in favour of Smt. Leeladevi
Lohar on 24th January, 1996, much before the execution of the
Lease Deed by MHADA in favour of late Damanjit, underscores
the fraudulent nature of the transaction, submitted Mr. Jadhav.
Mr. Jadhav also urged that the discretionary writ jurisdiction
need not be exercised in favour of a party whose conduct is
dishonest and fraudulent. To this end, reliance was placed by
Mr. Jadhav on the judgments of the Supreme Court in the cases
10/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
of M. P. Mittal vs. State of Haryana and others 1 and Garment
Graft vs. Prakash Chand Goel 2.
13. I have given anxious consideration to the rival
submissions canvassed across the bar.
14. To start with with, it may be apposite to note few
uncontroverted facts. Firstly, the process of allotment of the
subject premises to late Damanjit in the year 1994, culminating
in the execution of the Indenture of Lease in favour of late
Damanjit on 13th March, 1996, is not in contest. The fact that
pursuant to the Lease Deed late Damanjit was put in possession
of the subject premises is also incontestible. Secondly, the
petitioner claimed to have acquired the leasehold rights under
registered Deed of Assignment dated 6th August, 2002,
purportedly executed by Smt. Leeladevi Lohar, as the
Constituted Attorney of late Damanjit, the assigner, and the
MHADA, as the confirming party. Thirdly, the cancellation of the
allotment by the Deputy Chief Executive Officer, MHADA by
order dated 5th December, 2012 is also not much in dispute. The
controversy between the parties revolves around the question
whether the said order dated 5 th December, 2012 entailed
1 (1984) 4 Supreme Court Cases 371.
2 (2022) 4 Supreme Court Cases 181.
11/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
the consequence of rendering the occupation of the subject
premises by the petitioner unauthorized?
15. Respondent No.1 approached the Authorities with a case
that the Deed of Assignment came to be executed fraudulently.
Smt. Leeladevi Lohar had no authority to execute the said Deed
of Assignment as she was not the Constituted Attorney of late
Damanjit. The Deed of Assignment came to be executed on the
strength of false and forged documents and in connivance with
the officers and officials of MHADA.
16. Per contra, the petitioner laid emphasis on the registered
Deed of Assignment and the subsequent development of the
subject premises by constructing a bungalow thereon by
obtaining the permission of the concerned Authorities including
the MHADA. At any rate, according to the petitioner, the
authorities under the MHAD Act had no jurisdiction to decide
the legality and validity of the registered Deed of Assignment
and the documents executed by late Damanjit in favour of Smt.
Leeladevi Lohar.
17. In the backdrop of the aforesaid controversy, it becomes
evident that the order of cancellation of the assignment in
favour of the petitioner passed by the Deputy Chief Executive
Officer, MHADA, dated 5th December, 2012 was not challenged
12/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
by the petitioner. Mr. Kanade made a valiant attempt to draw
home the point that notwithstanding the failure on the part of
the petitioner to challenge the said order dated 5 th December,
2012, the petitioner was entitled to contest the action of MHADA
of declaring the petitioner as an unauthorized occupant for two
reasons. First, MHADA could not have cancelled the
assignment in favour of the petitioner once a registered Deed of
Assignment was executed. Second, the said order dated 5 th
December, 2012 was a subject matter of challenge in the
eviction proceeding initiated at the instance of MHADA i.e. Case
No.26 of 2013, before the Competent Authority. Since the
Competent Authority had declared that the said action of the
Deputy Chief Executive Officer, MHADA, was not justified, the
petitioner was not required to assail the said order.
18. In order to appreciate the aforesaid submissions, it may be
apposite to note the provisions contained in Section 66(1)(b) of
the MHAD Act, which reads as under:
“Section 66. Power to evict certain persons from Authority
premises.
(1) If the Competent Authority is satisfied-
(a) .......
(b) that any person is an unauthorised occupation of any
Authority premises, the Competent Authority may, for reasons
to be recorded in writing, by notice served (i) by post, or (ii)
affixing a copy of it on the outer door or some other
conspicuous part of such premises, or (iii) in such other
manner as may be prescribed, other that person, as well as any
13/22::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
other person, who may be in occupation of the whole or any
part of the premises, to vacate the premises in unauthorised
occupation, within 24 hours of the date of service of notice, and
in any other case within a period of seven days of the date of
such service.”
Explanation 1.- For the purpose of this Chapter, the expression
unauthorised occupation’ in relation to any person authorised
to occupy any Authority premises includes the continuance
ofoccupation by him or by any personclaiming through or
underhim ofthe premises aftertheauthority under which he was
allowed to occupy the premises has expired or has been duly
determined.”
19. From the text of sub-section (1)(b) of the Section 66, it
becomes abundantly clear that the remit of the jurisdiction of
the Competent Authority is to decide whether a person is in an
unauthorized occupation of any Authority premises. And, if so,
order him to vacate the premises. The Explanation 1 to Section
66 further clarifies that the expression “unauthorized
occupation” includes in its fold continuance of occupation of
premises, after the authority under which the concerned person
was allowed to occupy the premises has expired or has been
duly terminated. Consequently, the termination of the
allotment, or for that matter cancellation of the transfer or
assignment, would bring the case within the ambit of the latter
part of Explanation 1 to Section 66.
20. The Competent Authority was thus required to examine
whether the authority under which the alleged unauthorized
occupant was allowed to occupy the Authority premises has
14/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
expired or has been duly determined. However, the Competent
Authority, could not have gone into the larger question as to
whether the order of cancellation of the assignment dated 5 th
December, 2012 passed by the Deputy Chief Executive Officer
was legal and valid. The proper course for the petitioner was to
assail the legality and validity of the said order in an
appropriate proceeding.
21. It is also necessary to note that the proceedings under
Section 66 of the MHAD Act were initiated at the instance of
MHADA, after the Deputy Chief Executive Officer cancelled the
assignment of the leasehold rights in favour of the petitioner. It
was not the case of the petitioner that the petitioner had
assailed the legality and validity of the said order dated 5 th
December, 2012 in any proceeding. Keeping this context in view,
the challenge in the instant petition is required to be
appreciated.
22. Upon the careful consideration and analysis of the
material on record, it becomes abundantly clear that the
circumstances which preceded and attended the execution of
the Deed of Assignment in favour of the petitioner are hard and
gross. Firstly, the purported Power of Attorney on the strength
of which Smt. Leeladevi Lohar had executed the Deed of
15/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
Assignment, was allegedly executed on 22nd January, 1996,
much before the Indenture of Lease came to be executed by
MHADA in favour of the late Damanjit. The blank spaces left in
the said Power of Attorney with regard to the particulars of the
allotment and execution of the lease in favour of late Damanjit,
underscore the said fact.
23. Secondly, the Indenture of Lease came to be executed by
late Damanjit on 13th March, 1996. It is not the case that the
Indenture of Lease was executed by Smt. Leeladevi Lohar in her
capacity as the Constituted Attorney of late Damanjit. Nor any
of the contemporaneous documents evidencing the acceptance
of the allotment and deposit of lease premium and advance
lease rent indicate that the said Smt. Leeladevi Lohar had
executed the documents as a Constituted Attorney of late
Damanjit.
24. Thirdly, it is imperative to note that on the very next day of
the execution of the Lease Deed, late Damanjit purportedly
applied for duplicate copies of the letters issued in respect of the
subject premises on the ground that those documents were lost
while traveling. To further confound the confusion, those
documents were allegedly provided to late Damanjit, a day prior
to the application i.e. 13th March, 1996 itself.
16/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
25. Fourthly, it was the positive case of the petitioner in her
affidavit-in-reply before the Competent Authority that Smt.
Leeladevi Lohar had approached the petitioner in the year 2002
and offered to transfer the subject premises. This stand plainly
implies that the petitioner came in the frame in the year 2002
and, thereafter, negotiations were held and the transaction was
executed between the petitioner and late Damanjit. However, the
reliance on two of the documents by the petitioner, alongwith
the letter dated 15th July, 2002, betrays the fraudulent nature of
the transaction, beyond the pale of controversy.
26. The petitioner had placed reliance on the NOC affidavit
and Indemnity Bond executed by late Damanjit affirming the
fact that the subject premises was transferred in favour of the
petitioner. It defies comprehension that late Damanjit could
have sworn such an affidavit in the year 1996 to transfer the
subject premises in favour of the petitioner in the year 2002.
Indemnity Bond relied upon by the petitioner was also executed
on 25th January, 1996 professing to indemnify MHADA from the
consequences of the transfer of the subject premises in favour of
the petitioner. The existence of, and reliance upon, these
documents if considered in conjunction with the circumstances
in which the Power of Attorney in favour Smt. Leeladevi Lohar
17/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
was executed, much prior to the execution of the Indenture of
Lease in favour of the petitioner, significantly erodes the
genuineness of the transaction.
27. Lastly, it is material to note that under the Deed of
Assignment no consideration flowed to late Damanjit. The
contentions in the affidavit-in-reply of the petitioner before the
Competent Authority that the petitioner had paid an amount of
Rs.7,00,000/- by cheque and in cash to Smt. Leeladevi Lohar
does not merit consideration in the face of the intrinsic evidence
of the registered Deed of Assignment, which incorporates the
terms of disposition.
28. The situation which thus emerges is that an endeavour
was made to deprive the original allottee of the subject premises
by pressing into services the Deed of Assignment, under which
the original allottee did not receive any consideration, executed
by a purported Constituted Attorney; on the strength of a
document, which predates the Indenture of Lease, and the
purported affidavit and Indemnity Bond, executed by the
original allottee in favour of the petitioner, who was not at all in
picture in the year 1996. The Competent Authority overlooked
these glaring facts and documents and proceeded on an
18/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
erroneous premise that a registered Deed of Assignment cannot
be varied, modified or cancelled but by a registered instrument.
29. The submission of Mr. Kanade which proceeds on the
same premise that the execution of the registered Deed of
Assignment lends credence to the transaction does not carry
any substance. There is no magic or charm in a registered
instrument. Registration does not cure the defect in title or
insulate the parties from the consequences of fraudulent
transactions. The Appellate Officer was, therefore, fully justified
in reversing the order passed by the Competent Authority.
30. In the light of the aforesaid factual position, which stares
in the face, the question of justifiability of exercise of writ
jurisdiction arises for consideration. Whether the petitioner
deserves the discretionary relief in the face of the aforesaid
material, which unmistakably indicates the fraudulent nature of
the transaction, is the moot question. It is trite, fraud vitiates
every act. A party who seems to have obtained an unfair
advantage by making false statement or relying upon patently
false documents, does not deserve any relief.
31. The reliance by Mr. Jadhav on the judgment of the
Supreme Court in the case of M. P. Mittal (supra) appears to be
19/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
well founded. In the said case, the Supreme Court observed as
under:
“5. …… The appeal arises out of a writ petition, and it is well
settled that when a petitioner invokes the jurisdiction of the
High Court under Article 226 of the Constitution, it is open to
the High Court to consider whether, in the exercise of its
undoubted discretionary jurisdiction, it should decline relief to
such petitioner if the grant of relief would defeat the interests of
justice. The Court always has power to refuse relief where the
petitioner seeks to invoke its writ jurisdiction in order to secure
a dishonest advantage or perpetuate an unjust gain. This is a
case where the High Court was fully justified in refusing relief.
On that ground alone, the appeal must fail.”
(emphasis supplied)
32. Another principle which assumes critical salience in the
cases of the present nature, is the dictate of justice. The
exercise of writ jurisdiction ought to be to advance the cause of
justice. If the Court finds that by exercising the writ
jurisdiction the ultimate cause of justice would be defeated,
though the law might appear to be on the side of the party
seeking the relief, the Court would be justified in declining to
grant the relief. A useful reference can be made to a decision of
this Court, in the case of The State of Bombay vs. Morarji
Cooverji3, wherein the aforesaid principle was enunciated as
under:
“This is not a case where a tenant in occupation has been thrown
out. This is, on the contrary, a case where the premises requisitioned
for a public purpose are occupied by a Government servant and are
sought to be taken possession of by the landlord by asking the Court
to throw the Government servant out and restore possession to the3 1958 BLR Vol. LXI 318.
20/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
landlord when that landlord has never shown his need of those
premises by occupying them himself. Therefore, this is clearly a case
where justice is not on the side of the petitioner, it is on the side of
the State, and we see no reason why we should grant any relief to the
petitioner.”
(emphasis supplied)
33. In the case of State of Maharashtra and others vs.
Prabhu4, the Supreme Court emphasised this principle in the
following words:
“4. Even assuming that construction placed by the High Court
and vehemently defended by the learned counsel for respondent is
correct should the High Court have interfered with the order of
Government in exercise of its equity jurisdiction. The distinction
between writs issued as a matter of right such as habeas corpus and
those issued in exercise of discretion such as certiorari and
mandamus are well known and explained in countless decisions given
by this Court and English Courts. It is not necessary to recount them.
The High Courts exercise control over Government functioning and
ensure obedience of rules and law by enforcing proper, fair and just
performance of duty. Where the Government or any authority passes
an order which is contrary to rules or law it becomes amenable to
correction by the courts in exercise of writ jurisdiction. But one of the
principles inherent in it is that the exercise of power should be for the
sake of justice. One of the yardstick for it is if the quashing of the
order results in greater harm to the society then the court may
restrain from exercising the power.”
(emphasis supplied)
34. In view of the aforesaid exposition of law, I am not inclined
to interfere with the impugned order. The construction of the
bungalow on the subject premises, by the petitioner, and, thus,
the order of eviction would cause hardship to the petitioner need
not be the factors which should weigh with the Court, as the
actions of the petitioner were at her own peril.
4 (1994) 2 Supreme Court Cases 481.
21/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
-WP10545-2025+.DOC
35. Hence, the following order:
:ORDER:
(i) The petitions stand dismissed.
(ii) Rule discharged.
(iii) No costs.
[N. J. JAMADAR, J.]
At this stage, Mr. Kanade, the learned Counsel for the
petitioner, seeks stay to the execution and implementation of
this order.
To provide a reasonable time to the petitioner to deliver
vacant possession of the subject premises, the execution and
operation of this order stands stayed for a period of six weeks.
[N. J. JAMADAR, J.]
22/22
::: Uploaded on – 26/08/2025 ::: Downloaded on – 27/08/2025 21:22:10 :::
[ad_1]
Source link