PANDURANG KONDIBA PANGARE Vs. V.S.MATHKAR

JUDGEMENT

(1.) BY the present writ petition under Article 26 of the Constitution of India, the petitioner has challenged the validity and legality of the notice dated 15th September 1981 issued by Respondent Nos.1 and 2 under Section 42(1) of the Maharashtra Housing and Area Development Act, 1976 (MHADA for short). The above petition came up for hearing earlier before a Division Bench of this Court and by an order dated 8th November 1983 the said notice was quashed and the writ petition was made absolute. Thereafter a Special Leave Petition was preferred by Respondent Nos.1 and

(2.) TO the Supreme Court which was also dismissed. However, on an application for review of the earlier order passed by the Supreme Court, the order of dismissal by the Supreme Court was recalled, the order dated 8th November 1983 passed by this Court was set aside and the petition has been remanded. Thus the writ petition is before us for hearing and final disposal. 2.Before we decide to embark upon consideration of points raised in the present writ petition, in view of several events which have taken place after the passing of the said order by this Court on 8th November 1983, it has become imperative for us to briefly refer to these events.

(3.) THUS , in these circumstances, the Writ Petition is before us. It was submitted on behalf of the Petitioner that in fact except a small portion of land, the rest of the land has been conveyed and the 3rd Respondents are presently the owners of the said land which is in the form of seven plots. On behalf of the 3rd Respondents it was submitted that when the conveyances in their favour took place, the present writ petition filed by the petitioner in this Court had been allowed and the impugned notice was set aside. The S.L.P. in the Supreme Court was also dismissed and thus there was no impediment in the way of the 3rd Respondents when they purchased the land in question. It is their contention that in fact they were not aware of the earlier litigation and even if they were aware of, the petitioner had succeeded in the petition and there was nothing to prevent the 3rd Respondent from purchasing the land in question. From the material produced before us which included photog-raphs, it appears that by the time the restraint order was passed by the Supreme Court on 17th September 1993 as mentioned above, substantial construction had taken place. In fact from the affidavit filed by the 3rd Respondents, which is referred to earlier, it appears that out of 72 flats which the 3rd Respondents propose to construct for group housing of the employees of State Bank of India, 39 flats have been already sold. Out of the said purchasers of 39 flats, at least 13 represented by Mr.Vashi are before us. These purchasers are innocent persons who have parted substantial amounts in favour of the 3rd Respondents who have in fact carried out substantial work of construction. Thus between the time the present Writ Petition was heard and decided earlier on 8th November 1983 and the Order of the Supreme Court passed on 28th November 1993 in the Review Petition filed by the MHADA, so much has happened. The status of the property is definitely not the same but has radically changed. Third party rights have been legitimately created. These people are bonafide purchasers for value. This is not as if some claims have come into existence despite some adverse order or orders restraining any further construction. In these circumstances, we enquired with the learned Advocate General appearing for Respondent Nos.1 and 2 as to what stand the State Government wished to take. In fact we enquired with Mr.Advocate General whether the State Government was still keen to go ahead with the acquisition of the land in order to put up residential houses which is the avowed object of acquisition. As expected, Mr.Advocate General with his usual fairness submitted that from the developments which have taken place, it appears that in fact residential houses are being put up which is the very object of acquisition, and substantial construction has taken place. He in fact referred to the fact that innocent persons had without any fault of theirs parted with money while purchasing the flats which are under construction. The const-ruction by 3rd Respondent in his view, was also providing housing and thus akin to the purpose of acquisition and, therefore, the State Government was not keen to go ahead with the acquisition. He lastly submitted that in these circumstances, the State Government submitted to the orders of the Court and prayed for grant of suitable orders/directions in the matter.