TUKARAM S VICHARE Vs. DATTARAM S VICHARE

JUDGEMENT

(1.) THIS is a writ petition under Article 227 of the Constitution of India and is directed against an order dated 5-1-1989 passed by the Appellate Officer constituted under the Maharashtra Housing and Area Development Act, Bombay. The case presents a rather unusual set of facts and circumstances and also raises issues of both importance and interest, namely, that it calls for an interpretation of the term "subletting in the special context of section 66 of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as "the Act" ).

(2.) THE petitioner before this Court and respondent No. 1 are both real brothers. The dispute in question concerns a one-room tenement No. 16/1097, situated at Abhyudaya Nagar, Kalachowki, Bombay, which premises are, admittedly, Housing Board Premises. The Premises in question were remarked for allocation to Industrial workers. In the year 1964, respondent No. 1 applied for allotment of the tenement in question to him because he was eligible for such allocation by virtue of his income. There is no dispute about the fact that the tenement was originally allotted to respondent No. 1, who is the elder brother of the present petitioner. The record, however, indicates that at the time when the original transaction took place, respondent No. 1 had filled in what is known as Form "c" and that in the Form "c", respondent No. 1 had indicated the name of his younger brother, i. e. , the present petitioner, and his wife as the persons forming part of his family who would be residing with him in the tenement in question. It is the contention of the petitioner that respondent No. 1 at the relevant time, was residing at some other premises at Girgaum and that the petitioner and his wife have continued in exclusive possession of the premises from the date of allotment right upto the year 1987 when a serious dispute between the brothers took the matter to the City Civil Court.

(3.) RESPONDENT No. 1 does not admit this position. It is his contention that since the premises were extremely small and since it was impossible for the two brothers and their families to reside in one room, purely as matter of convenience, he had shifted out to certain alternative premises available to him in Girgaum and that he had allowed his brother and the family to continue in occupation of the tenement. It is his further contention that even though the parties are brothers, the relationship between the parties deteriorated and that the present petitioner tried to grab the premises which originally belonged to him; that it was for this reason that the present petitioner tried to get the Housing Board to evict the original allottee and regularise the occupation of the present petitioner. It is further the contention of respondent No. 1 that in order to support his application to the Housing Board for regularisation of the tenement, the present petitioner filed a suit before the City Civil Court at Bombay and sought to obtain interim orders against respondent No. 1 restraining him from entering the premises. Respondent No. 1 contends that the he had gone back to stay in the premises that are in dispute and that it was for this reason, after examining the respective contentions and the material before the Court, that the City Civil Court refused the interim reliefs that were prayed for by the plaintiff and, on the other hand, recorded a finding that the two brothers were in joint possession of the premises.