Wednesday 22 March 2023

Can a court pass disadvantageous order against the appellant's interest beyond their prayers and pleadings in an appeal?

 However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.


16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9149 of 2011

Decided On: 10.09.2013

 Vachalabai Haribhau Lingayat  Vs. Estate Manager, Aurangabad

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde, J.

Citation: 2014(2) MHLJ 190,MANU/MH/1442/2013


1. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, heard forthwith. This Writ Petition takes exception to the judgment and order, dated 23.1.2000, passed by the Competent Authority in Case No. 79 of 1997 in respect of Plot No. 860, out of 38 Open Plot, New Aurangabad, Maharashtra Housing and Area Development Authority, Mumbai-51 and the impugned order, dated 15.11.2011, passed by the Appellate Office-1 in Appeal No. 5 of 2000 under Maharashtra Housing and Area Development Act, 1976.


2. It is the case of the petitioner that, the petitioner is owner of plot no. 860, out of 38 open plot, and the petitioner has constructed plot no. 860 as per Rules and Law and as per necessary permission granted by the Competent Authority under the said Act. The petitioner submits that the office of respondent initiated eviction proceedings u/sec. 66(1)(a)(iv) of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as the said Act) against the petitioner. It was alleged that the petitioner has carried out material additions and alterations in the open space adjacent to plot no. 860 of the petitioner by encroaching on the approximate area of 28.2 square meters i.e. 303.43 square feet, as per encroachment report. It is submitted that the said encroachment was without previous permission of the Board, by committing breach of tenancy agreement, and hence, eviction proceedings were initiated against the petitioner by the office of the respondent.


3. It is the case of the petitioner that initially show cause notice was issued on 14.10.1997 under Section 66(2) of the said Act and was served upon the petitioner about the proposed action of eviction to be taken against the petitioner, calling upon the petitioner to submit the say within ten days.


4. It is also the case of the petitioner that, the proceedings in respect of plot No. 860, New Aurangabad, belonging to the petitioner, started before the Competent Authority-II, Maharashtra Housing and Area Development Authority, Mumbai, in Case No. 79 of 1997. The petitioner approached the said authority and requested for time to produce evidence, however, the Competent Authority-II, without granting proper opportunity of hearing, passed by the order, dated 23.1.2000 directing the respondent to demolish the unauthorized structure within ten days from the date of passing the order.


5. The petitioner, being aggrieved by the order, dated 23.1.2000, passed by the Competent Authority-II, preferred appeal before the Appellate Officer under the said Act, bearing Appeal No. 5 of 2000, however, the said appeal was rejected.


6. Counsel appearing for the petitioner submits that the petitioner being old lady was unable to walk. Hence, the son of the petitioner, namely Raja Lingayat approached the office of the Appellate Authority after receipt of the notice for hearing in the appeal. The son of the petitioner sought time for engaging the lawyer, however, no adjournment was granted and the impugned order came to be passed on 15.11.2011.


7. It is further submitted that, both the authorities below came to erroneous conclusion that the construction of shed on open space adjacent to plot no. 860 belonging to the petitioner, is illegal and in violation of the terms and conditions of the agreement. The petitioner submits that, the said adjacent plot is of no use to the Board, and that the said construction on the open space is neither illegal nor encroachment. The petitioner submits that the authorities ought to have considered the fact that the said open space can be allotted to the petitioner on the condition of petitioner depositing necessary charges, however, instead of doing that, the respondent authorities initiated the eviction proceedings illegally in order to harass the petitioner.


8. The petitioner submits that, the authorities below by ignoring the provisions of law and by erroneous conclusion directed the Board to evict the petitioner. It is submitted that the said orders are without jurisdiction, as the authorities below failed to exercise the jurisdiction vested in them. It is the submission of the petitioner that, the open adjacent space to the plot of the petitioner should have been allotted to the petitioner considering the provisions of said Act, by granting the said open space and regularizing the encroachment.


9. The petitioner submits that, Plot no. 860 allotted to the petitioner is constructed as per rules, and the tin shed erected on the open space behind the plot of the petitioner is not in contravention of the terms and conditions of the agreements.


10. The petitioner further submits that, both the authorities below refused to grant adjournment to the petitioner for engaging lawyer and did not grant opportunity of hearing to the petitioner in violation of principles of natural justice. It is further submitted that the authorities below exceeded their jurisdiction in directing to remove the encroachment, when, in fact, there is no encroachment as such. The petitioner, therefore, submits that, the impugned judgment and orders are perverse and are liable to be quashed and set aside.


11. The learned counsel appearing for the respondent vehemently opposed the prayer in the petition and invited my attention to the reasons recorded by the Competent Authority in its order, dated 23.1.2000 and also the reasons recorded by the Appellate Officer under the said Act and submits that both the authorities have held that there is an encroachment and even the details in respect of encroached area have been given by the Competent Authority, and therefore, this court may not interfere in the concurrent findings recorded by the authorities below. It is submitted that the allottee cannot take liberty to make encroachment on the land belonging to the Maharashtra Housing and Development Authority. Therefore, the learned counsel for the respondent prayed that the petition may be rejected.


12. I have heard learned counsel for both the parties at length. With their able assistance, perused the entire material placed on record, including the reasons assigned by the Competent Authority and further by the Appellate Authority. The argument of the learned counsel for the Petitioner that other tenement holders have also encroached upon the land belongs to the MHADA and no action is taken against them and therefore, there is a discrimination. Such argument deserves to be rejected, at the threshold. Article 14 of the Constitution of India cannot be invoked so as to contend that some other tenements have illegally encroached and no action is taken against them and therefore, the illegal encroachment by the Petitioner on the land of MHADA should be regularized.


13. It appears that, there is encroachment by the Petitioner on the land belonging to MHADA as it is evident from the reasons recorded by the Competent Authority and also by the Appellate Authority. Such encroachments have been made way back and the Deputy Engineer measured the land and thereafter, on the basis of the Deputy Engineers measurement dated 29th June, 1996, the eviction proposal under Section 66(1)(a)(iv) of the MHADA Act, was received from the Estate Manager, Aurangabad Board stating therein that the Petitioner has carried out material addition and alteration in the premises i.e. T. No. 860, (38 open plot) tenements, M.I.G., New Aurangabad. It is not necessary for this Court to reproduce the details since the order passed by the Competent Authority has referred all these details. It further appears that show cause notice dated 14th October, 1997 was given to the Petitioner. However, the Petitioner avoided to appear before the Competent Authority though number of chances were given to her and lastly the Competent Authority by its order dated 26th January, 2000 was pleased to direct the Petitioner to demolish unauthorized structure within 10 days from passing of the order, failing which the Reporting Officer shall demolish the same and report the compliance immediately.


14. Upon careful perusal of the judgment and order passed by the Appellate Authority in Appeal No. 7 of 2000, the Appellate Authority in paragraph No. 2 framed necessary points for consideration and recorded the reasons and held that the Appellant has made unauthorized construction as mentioned in the map. The Appellate Authority has recorded the submissions of the Appellant that he had made encroachment and also made construction as mentioned in the charge-sheet. The Appellant further pleaded that he is ready to pay the charges for regularization of the construction and for the allotment of encroached land made by her. The Appellate Authority found that the Appellant has committed breach of the conditions of the allotment by making additions and alteration, and encroached on the land, which was not allotted to her and in view of the factual position, the Appellate Authority recorded that the charges framed against the Appellants are proved and accordingly, the Appellate Authority confirmed the order passed by the Competent Authority.


15. Upon careful perusal of the reasons recorded by the Competent Authority, which are confirmed by the Appellate Authority, it is abundantly clear that the Petitioner clearly admitted before the Appellate Authority that he has made encroachment and alterations and prayed for regularization of the said encroachment. Therefore, in the aforesaid background, this Court is not inclined to entertain this writ petition. If the prayer of the petitioner is entertained, the same may amount to adding premium on illegal and dishonest acts of the Petitioner who has encroached on MHADAs land and also made the alterations contrary to the Rules and Regulations. The extra-ordinary writ jurisdiction cannot be invoked so as to exercise the discretion in favour of the person, who has committed illegality and irregularity. Therefore, this Court is not inclined to entertain the prayer of the Petitioner either to remand the matter back to the Competent Authority or to accept her prayer for regularization of the encroachment. However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.


16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent. Rule is made absolute in the above terms. Writ Petition is disposed of. No order as to costs.



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