Saiprasad Co-Op. Housing Society Ltd. vs S.L.A.O. and Others

F.I. Rebello, J.—Rule. Respondents waive service. Heard forthwith.

The petitioners a proposed society through its Chief Promoter has filed the present petition to challenge the decision of the S.L.A.O. dated 15th December, 1998 whereby the proposal for acquisition of the property under the provisions of the Maharashtra Housing & Area Development Act, 1976 has been rejected. At the hearing of the petition on behalf of the petitioners it is contended that the findings of the S.L.A.O. on the number of occupants who have applied is perverse, in as much as it has not taken into consideration the definition of an occupant as set out u/s 2(25) of the Act. In so far as the finding as to whether the building requires structural repairs in terms of Section 2(36) it is contended that the report submitted by their Engineer has not been considered and apart from that the report of the Executive Engineer was not made available to them for the purpose of giving their say in the matter,

On the other hand on behalf of the respondent Nos. 4 & 5, it is contended that the order does not suffer from any infirmity. The findings of the S.L.A.O. are findings of fact and consequently should not be interfered with.

On behalf of the respondent Nos. 2 and 3 the order of the 1st respondent is supported on the ground that the order also does not suffer from any infirmity.

On a perusal of the impugned order I find that there is non-application of mind on the part of the 1st respondent in considering the definition of ''occupant'' bearing in mind the applicants who had applied. If technically a Power of Attorney could not be taken into consideration or it could be held that the son could not apply on behalf of his mother an opportunity could have been given to the petitioners to rectify the same. Technicalities ought not to have stood in the way of considering such an application, more so considering the aspect that the Act is a beneficial piece of social legislation. In that context the finding of the 1st respondent that 70% of the occupants have not applied has to be set aside.

Insofar as the second aspect regarding structural repairs is concerned, the report of the Engineer as submitted by the petitioners seems not to have been taken into consideration. The report of the Executive Engineer of M.H.A.D.A. was not made available to them. Considering these circumstances the formation of opinion based on non-consideration of the document submitted by the petitioners or not making available the documents in possession of the 1st respondent must result in the order being set aside, on the ground of violation of principles of natural justice and fair play and/or non-application of mind. Considering the above, the following order:-

(i) The impugned order dated 16th December, 1998 is quashed and set aside. The matter is remanded to the 1st respondent to consider afresh the case of the petitioners and respondent Nos. 4 and 5. The respondent No. 1 to give an opportunity to both the petitioners and respondent Nos. 4 and 5 to file any fresh material if they so desire.

(ii) Considering the fact that the application was made in the year 1990 and we are now in the year 2000 after considering the said material the 1st respondent to dispose of the application according to law within 12 weeks from today.

(iii) The petitioners and respondent Nos. 4 and 5 if they seek inspection of the documents and/or copies of material on record to make an application in writing to the 1st respondent. The 1st Respondent to make available to the petitioners and/or respondents, such documents on record if any of the parties so desire.

(iv) The matter has not been decided on merits. The respondent No. 1 to dispose of the application on merits without being influenced by any observation that may have been made whilst disposing of the present petition.

(v) Rule made absolute in the above terms. There shall be no order as to costs.

All authorities to act on an ordinary copy of this order duly authenticated by the Associate of this Court.