Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 484
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5098 OF 2025
(ARISING FROM SPECIAL LEAVE TO APPEAL (CIVIL) NO.31035 OF 2024)
NEHA CHANDRAKANT SHROFF & ANR. APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. RESPONDENT(S)
O R D E R
1. Leave granted.
2. This appeal arises from the impugned judgment passed by the
th
High Court of Judicature at Bombay dated 30 April, 2024 in Writ
Petition No.2135 of 2009 by which the Writ Petition filed by the
appellants herein against the State of Maharashtra and Others came
th
to be rejected. The impugned judgment dated 30 April, 2024 reads
thus:-
1. In this writ petition, filed under Article 226 of the
Constitution of India, the petitioners seek a declaration that
the action on the part of the respondents in not releasing and
thereafter restoring the possession of Flat Nos.11 and 12 on the
3rd floor of the building named ‘Amar Bhavan’, A.R. Rangekar
Marg, Opera House, Mumbai 400 007 that belong to the petitioners
is unlawful, illegal and in violation of the petitioners’
fundamental rights. The petitioners accordingly pray that the
respondents be directed to forthwith vacate and handover
peaceful possession of the aforesaid premises to them.
2. It is the case of the petitioners, as pleaded in the writ
petition, that in or about the year 1940, the aforesaid two
flats were permitted to be temporarily occupied by the Police
Department at their request so as to meet the requirement of
housing police officers to enable maintenance of the law and
order situation. The petitioners have pleaded that there was no
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.15
18:20:34 IST
Reason:
2
written contract executed between their predecessor and the
Police Department. Certain amounts were paid by the Police
Department to the predecessor on monthly basis and till about
31st December 2007, Rs.611/- per month was being paid. On 10th
September 1997, the predecessor of the petitioners, through his
Advocate had issued a communication to the respondents raising a
grievance with regard to non-payment of the monthly amount.
According to the petitioners, since they were in need of the
aforesaid premises, a request was made to the respondents to
return possession of the same. Since the same was not done, this
writ petition came to be filed.
3. Dr. Sujay Kantawala, learned counsel for the petitioners in
support of the prayers made in the writ petition referred to the
orders passed in Writ Petition Nos.1108 of 2005, 343 of 2005 and
344 of 2005 to contend that in the aforesaid writ petitions, the
possession of the respective premises were handed over by the
respondents to the concerned petitioners. Though this writ
petition was to be heard along with the aforesaid writ
petitions, it could not be heard when the said writ petitions
were decided. He submits that on similar terms, a direction be
issued to the respondents to handover possession of the
aforesaid two flats. Without prejudice to the aforesaid, it was
contended that the occupation of the respondents since the year
1940 was on the backdrop that the two flats had been
requisitioned by the respondents for temporary use of the Police
Department. Though there was no written order requisitioning
these two flats, it was undisputed that possession of the same
was handed over to facilitate convenience of the Police
Department since it intended to house it’s police officers.
Inviting attention to the information supplied to the
petitioners under the provisions of Right to Information Act,
2005 (for short, “the Act of 2005”) pursuant to the application
dated 25th June 2007, it was pointed out that copy of written
Lease Deed was not available even with the respondents. Further
information supplied in October, 2020 indicated that the
respondents had no record to indicate the period when the
monthly payment towards occupying these flats was paid. Since
the petitioners were now in need of the said two flats, it was
obligatory on the part of the respondents to handover possession
of the same. As regards applicability of the provisions of the
Maharashtra Land Requisition Act, 1948 (for short,“Act of
1948”), as urged by the respondents is concerned, it was
submitted that since the two flats were orally requisitioned in
the year 1940, the provisions of the said Act would not apply
retrospectively. To substantiate this contention as regards the
entitlement to receive back possession, the learned counsel for
the petitioners placed reliance on the decisions of the Supreme
Court in H.D. Vora Vs. State of Maharashtra and Ors., (1984) 2
SCC 337; Grahak Sanstha Manch and Ors. Vs. State of Maharashtra,
(1994) 4 SCC 192; Roy Estate Vs. State of Jharkhand and Ors.,
3
(2009) 12 SCC 194, as well as the judgment of this Court in
Geeta Mangesh Laud and Ors. Vs. Appellate Authority and the
Principal Secretary, General Administration Department and Ors.,
with connected writ petitions, 2023 SCC OnLine Bom 1004. This
decision was challenged before the Supreme Court unsuccessfully.
It was thus urged that since possession of the said flats had
been handed over in the year 1940 on account of the need of the
Police Department then and about 84 years had elapsed since
handing over of such possession, the petitioners were entitled
to receive back possession of the same.
4. Mr. Mohit Jadhav, learned Additional Government Pleader
opposed aforesaid submissions. Inviting attention to the
pleadings in the writ petition, it was submitted that in absence
of any written order of requisition, it was not open for the
petitioners to contend that the respondents had requisitioned
the two flats in the year 1940. On the contrary, it was
submitted that possession of the same was handed over
voluntarily and monthly amounts were being paid to the
predecessor of the petitioners, which was evident from the
record. According to him, the grievance made in the writ
petition was also with regard to non-payment of the monthly
amounts, which would thus indicate that the petitioners were
seeking eviction of the respondents without terminating their
license/tenancy. Attention was invited to the communication
dated 30th July 2012 issued on behalf of the petitioners raising
a grievance that since January 2008, the monthly amounts towards
occupation of the two flats were not being paid. The aforesaid
would therefore indicate that there was no requisition of the
said premises and in fact, on the basis of an oral agreement,
the respondents were put in possession. It was further submitted
that this Court had entertained a somewhat similar grievance in
Writ Petition Nos.1429 of 1990 and 1430 of 1990 (Anil Harish and
Ors. Vs. Chief Secretary, Government of Maharashtra and Anr.).
The said writ petitions had been allowed by the judgment dated
23rd April 2004 and an order of eviction along with award of
damages came to be passed. The said judgment was challenged
before the Supreme Court and by it’s judgment dated 15th
November 2007 (Chief Secretary, Government of Maharashtra and
Anr. Vs. Anil Harish and Ors.) the appeal was allowed and the
judgment of this Court was set aside on the ground that the
remedy available to the petitioners therein under the
Maharashtra Rent Control Act, 1999 ought to have been invoked
especially since that was the statutory remedy available. The
High Court in exercise of jurisdiction under Article 226 of the
Constitution of India ought not to have entertained the writ
petition. On this basis, it was urged that in the absence of any
written order of requisition, the prayers made by the
petitioners may not be granted and the petitioners be directed
to avail the statutory remedy.
4
5. We have heard the learned counsel for the parties at length
and with their assistance, we have perused the documentary
material on record. It is an admitted position that sometime in
the year 1940, possession of Flat Nos.11 and 12 was voluntarily
handed over by the predecessor of the petitioners to the Police
Authorities. It is further admitted that there is no written
order requisitioning the aforesaid two flats for temporary use
by the Police Authorities. The dispute however is with regard
to nature of occupation of the Police Authorities. While the
petitioners seek to contend that such occupation is pursuant to
the two flats being requisitioned for use of the Police
Authorities, the respondents contend that having paid monthly
amounts to the predecessor of the petitioners and thereafter to
the petitioners, the occupation of the Police Department is not
pursuant to any requisition of the premises and that its
possession is permissive in nature. The documentary material on
record in the form of information supplied under the provisions
of the Act of 2005 indicates that there is no written Lease
Deed on the basis of which the Police Authorities have entered
into possession. The documents also show that monthly amounts
were paid regularly till December, 2007 and the petitioners had
made a grievance that since January, 2008, such payments were
not being made. On the basis of the material on record, it
cannot be concluded that the occupation of the Police
Authorities is pursuant to any order of requisition. There
being a dispute with regard to the nature of their occupation,
it would not be expedient for this Court to factually
adjudicate this aspect and record a finding as regards the
nature of occupation of the respondents. We thus find that
there is no material on record to substantiate the petitioners’
claim that the said two flats were requisitioned on the basis
of which the Police Authorities entered into possession.
6. It is true that the Act of 1948 came into force after
possession of the two flats was taken over in the year 1940.
The same however would not have material bearing on this issue
in the light of the fact that the nature of possession of the
respondents cannot be stated to be pursuant to any order of
requisition. The ratio of the decisions relied upon by the
learned counsel for the petitioners cannot be applied to the
facts of the present case.
Heavy reliance was placed by the learned counsel for the
petitioners on the orders passed in various writ petitions, as
referred above, along with which this writ petition was to be
heard. However, perusal of all the orders indicates that the
parties therein had arrived at a settlement and had filed
Consent Minutes of Order. The writ petitions were not
adjudicated on merits but the respondents therein agreed to
handover possession of the premises in question therein.
5
Hence, on facts, the aforesaid adjudication cannot be taken
into consideration. On the contrary, the learned Additional
Government Pleader is justified in relying upon the decision
of the Supreme Court in Chief Secretary, Government of
Maharashtra Vs. Anil Harish and others (supra).
7. We are not inclined to exercise jurisdiction under Article
226 of the Constitution of India in view of the fact that
there is no written order of requisition. Since the manner in
which the respondents entered into possession of the premises
is disputed, liberty is granted to the petitioners to avail
appropriate remedy as available in law to seek appropriate
reliefs. Keeping all points raised in the writ petition on
merits open, the same is dismissed with no order as to costs.
Rule stands discharged.”
3. Heard the learned counsel appearing for the appellants and Mr.
Shreyas Lalit, the learned counsel appearing for the State of
Maharashtra and others.
4. Mr. Nitin Pawar, the Deputy Commissioner of Police, Office of
the Commissioner of Police (Headquarter), Mumbai, Maharashtra is
also personally present today in the Court. We had some dialogue
with Mr. Pawar. According to the Officer, present before us, there
are two families of Police Officers residing in the two flats in
question. In fact, it has come to our notice today for the first
time that the flats in question are not being utilized as an Office
of the Police Department but two families are in fact residing in
these two flats in question. The monthly rent of each flat
admeasuring 600 square feet situated in South Bombay is Rs.700/-
(Rupees Seven Hundred) per month.
5. This is the right stage for us to look into the two orders
passed by us dated 28.01.2025 and 03.03.2025 respectively. The
order dated 28.01.2025 and 03.03.2025 respectively read thus:-
6
ORDER DATED 28.01.2025
“1. The respondents are in occupation of two flats of the
ownership of the petitioners herein since the year 1940. At the
relevant point of time, there was no written document in the
form of rent note or lease agreement or any other form of
understanding reduced into writing. However, it is not in
dispute that the department is occupying two flats as on date.
2. It appears that up to the year 2007 a very paltry amount was
being paid towards rent. Thereafter nothing was been paid till
2024. We are informed that again in 2004 some amount was paid.
3. The petitioners are desperately seeking to get back the
possession of the property, in question, which is in occupation
of the respondents.
4. We are of the view that the parties should sit together and
try to resolve the dispute. If the respondents want to retain
the possession they must enter into an appropriate lease
agreement providing for payment of rent determinable on the
market value of the property. Of course this would be without
prejudice to the rights and contentions of the petitioners, they
propose to raise before this Court while assailing the impugned
judgment passed of the High Court.
5. It has been more than 80 years that the department has been
occupying the two flats. The department can very easily shift
to any other place of their choice and allow the petitioners to
use their own property.
6. We hope and trust that Mr. Shreyas Lalit, the learned
counsel appearing for the respondents is able to persuade his
clients to bring an end to this litigation by some equitable
settlement.
7. Post this matter after four weeks.”
ORDER DATED 03.03.2025
“1. The learned counsel appearing for the parties jointly
submitted that talks of settlement are in progress. We are fully
conversant with the facts of this case. We once again request
Mr. Shreyas U. Lalit, learned counsel appearing for the
respondents to impress upon his client to resolve the dispute in
any circumstances.
2. We reiterate once again that the State cannot retain the
property for all times to come. We are informed that the
petitioners herein have put forward three proposals before the
State:
(I) That the State may retain the premises by paying market rent
as on date.
(II) The State may either outright purchase the property; or
7
(III) The State should hand over vacant and peaceful possession
of the property.
3. We are of the view that all the three proposals are very
reasonable and State must consider either of the three very
seriously.
4. We adjourn this matter for one last time, on the next date,
if some settlement is placed on record well and good, otherwise
we shall proceed to pass final orders.
5. List the matter after four weeks.”
6. The orders dated 28.01.2025 and 03.03.2025 respectively quoted
above make the picture abundantly clear. There is no response worth
the name at the end of the respondents to the three proposals
referred to by us in our order dated 03.03.2025. In such
circumstances, we need not hear the parties anymore on any other
issues. We set aside the impugned judgment passed by the High Court
and allow the original writ petition preferred by the appellants
before the High Court. We grant four months’ time to the
respondents from today to handover vacant and peaceful possession
of both the flats in question to the appellants along with the
arrears of rent accrued till the date of handing over of the
possession of the two flats. We are informed that the Department
has not been paying rent from 2008 onwards. The rent shall be
calculated accordingly and be paid to the appellants.
7. We direct Shri Nitin Pawar, the Deputy Commissioner of Police
who is personally present in the court to file an undertaking on
oath stating that the Department shall hand over vacant and
peaceful possession of the two flats in question definitely to the
appellants within a period of four months from today. Such
undertaking in the form of affidavit shall be filed within one week
from today before the Registry of this Court.
8
8. We are happy that we have been able to do justice with the
appellants who have been frantically trying to get back their
property (two flats) in question which the State occupied way back
in the year 1940 without any written order requisitioning the two
flats for temporary use by the Police authorities or any lease deed
in writing. It appears that the High Court was hesitant to exercise
its writ jurisdiction as it got confused on the aspect of nature of
possession. The High Court found the possession to be permissive in
nature. In such circumstances, the High Court thought fit to
relegate the appellants to avail alternative remedy of filing a
suit.
9. The High Court should have kept the year in mind i.e. 1940.
This country was ruled by the Britishers. The country was fighting
hard to seek independence from the Britishers. Bombay in the year
1940 was altogether different. At the relevant point of time, the
Department perhaps might have persuaded the appellants or their
predecessors in title to part with the possession of the two flats
for the Police Department. However, it has been now 84 years that
the Police Department has been in occupation and use of the two
flats. Look at the conduct of the Department. We are informed that
past eighteen years even rent has not been paid.
10. To ask the appellants to file a suit and recover the
possession would be like adding insult to the injury. At this point
of time, if the appellants are asked to institute a suit, we wonder
how many years it would take by the time the litigation would come
to an end if at all it reaches upto the highest Court of the
9
country. These are the hard facts, the High Courts are expected to
keep in mind in today’s times.
11. The rule of exclusion of writ jurisdiction by availability of
an alternative remedy is a rule of discretion and not one of
compulsion. There can be many contingencies in which the High Court
may be justified in exercising its writ jurisdiction inspite of
availability of an alternative remedy.
12. This is one of those cases wherein the High Court should have
readily exercised its writ jurisdiction. The constitutional powers
vested in the High Court or the Supreme Court cannot be fettered by
any alternative remedy available to the party concerned. Injustice,
whenever and wherever it takes place, should be struck down as an
anathema to the rule of law and the provisions of the Constitution.
13. With the aforesaid, the appeal stands disposed of.
14. Pending application(s), if any, stands disposed of.
……………………………………………..J.
[J.B. PARDIWALA]
……………………………………………..J.
[R. MAHADEVAN]
New Delhi
th
Dated; 08 April, 2025
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 484
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5098 OF 2025
(ARISING FROM SPECIAL LEAVE TO APPEAL (CIVIL) NO.31035 OF 2024)
NEHA CHANDRAKANT SHROFF & ANR. APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. RESPONDENT(S)
O R D E R
1. Leave granted.
2. This appeal arises from the impugned judgment passed by the
th
High Court of Judicature at Bombay dated 30 April, 2024 in Writ
Petition No.2135 of 2009 by which the Writ Petition filed by the
appellants herein against the State of Maharashtra and Others came
th
to be rejected. The impugned judgment dated 30 April, 2024 reads
thus:-
1. In this writ petition, filed under Article 226 of the
Constitution of India, the petitioners seek a declaration that
the action on the part of the respondents in not releasing and
thereafter restoring the possession of Flat Nos.11 and 12 on the
3rd floor of the building named ‘Amar Bhavan’, A.R. Rangekar
Marg, Opera House, Mumbai 400 007 that belong to the petitioners
is unlawful, illegal and in violation of the petitioners’
fundamental rights. The petitioners accordingly pray that the
respondents be directed to forthwith vacate and handover
peaceful possession of the aforesaid premises to them.
2. It is the case of the petitioners, as pleaded in the writ
petition, that in or about the year 1940, the aforesaid two
flats were permitted to be temporarily occupied by the Police
Department at their request so as to meet the requirement of
housing police officers to enable maintenance of the law and
order situation. The petitioners have pleaded that there was no
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.15
18:20:34 IST
Reason:
2
written contract executed between their predecessor and the
Police Department. Certain amounts were paid by the Police
Department to the predecessor on monthly basis and till about
31st December 2007, Rs.611/- per month was being paid. On 10th
September 1997, the predecessor of the petitioners, through his
Advocate had issued a communication to the respondents raising a
grievance with regard to non-payment of the monthly amount.
According to the petitioners, since they were in need of the
aforesaid premises, a request was made to the respondents to
return possession of the same. Since the same was not done, this
writ petition came to be filed.
3. Dr. Sujay Kantawala, learned counsel for the petitioners in
support of the prayers made in the writ petition referred to the
orders passed in Writ Petition Nos.1108 of 2005, 343 of 2005 and
344 of 2005 to contend that in the aforesaid writ petitions, the
possession of the respective premises were handed over by the
respondents to the concerned petitioners. Though this writ
petition was to be heard along with the aforesaid writ
petitions, it could not be heard when the said writ petitions
were decided. He submits that on similar terms, a direction be
issued to the respondents to handover possession of the
aforesaid two flats. Without prejudice to the aforesaid, it was
contended that the occupation of the respondents since the year
1940 was on the backdrop that the two flats had been
requisitioned by the respondents for temporary use of the Police
Department. Though there was no written order requisitioning
these two flats, it was undisputed that possession of the same
was handed over to facilitate convenience of the Police
Department since it intended to house it’s police officers.
Inviting attention to the information supplied to the
petitioners under the provisions of Right to Information Act,
2005 (for short, “the Act of 2005”) pursuant to the application
dated 25th June 2007, it was pointed out that copy of written
Lease Deed was not available even with the respondents. Further
information supplied in October, 2020 indicated that the
respondents had no record to indicate the period when the
monthly payment towards occupying these flats was paid. Since
the petitioners were now in need of the said two flats, it was
obligatory on the part of the respondents to handover possession
of the same. As regards applicability of the provisions of the
Maharashtra Land Requisition Act, 1948 (for short,“Act of
1948”), as urged by the respondents is concerned, it was
submitted that since the two flats were orally requisitioned in
the year 1940, the provisions of the said Act would not apply
retrospectively. To substantiate this contention as regards the
entitlement to receive back possession, the learned counsel for
the petitioners placed reliance on the decisions of the Supreme
Court in H.D. Vora Vs. State of Maharashtra and Ors., (1984) 2
SCC 337; Grahak Sanstha Manch and Ors. Vs. State of Maharashtra,
(1994) 4 SCC 192; Roy Estate Vs. State of Jharkhand and Ors.,
3
(2009) 12 SCC 194, as well as the judgment of this Court in
Geeta Mangesh Laud and Ors. Vs. Appellate Authority and the
Principal Secretary, General Administration Department and Ors.,
with connected writ petitions, 2023 SCC OnLine Bom 1004. This
decision was challenged before the Supreme Court unsuccessfully.
It was thus urged that since possession of the said flats had
been handed over in the year 1940 on account of the need of the
Police Department then and about 84 years had elapsed since
handing over of such possession, the petitioners were entitled
to receive back possession of the same.
4. Mr. Mohit Jadhav, learned Additional Government Pleader
opposed aforesaid submissions. Inviting attention to the
pleadings in the writ petition, it was submitted that in absence
of any written order of requisition, it was not open for the
petitioners to contend that the respondents had requisitioned
the two flats in the year 1940. On the contrary, it was
submitted that possession of the same was handed over
voluntarily and monthly amounts were being paid to the
predecessor of the petitioners, which was evident from the
record. According to him, the grievance made in the writ
petition was also with regard to non-payment of the monthly
amounts, which would thus indicate that the petitioners were
seeking eviction of the respondents without terminating their
license/tenancy. Attention was invited to the communication
dated 30th July 2012 issued on behalf of the petitioners raising
a grievance that since January 2008, the monthly amounts towards
occupation of the two flats were not being paid. The aforesaid
would therefore indicate that there was no requisition of the
said premises and in fact, on the basis of an oral agreement,
the respondents were put in possession. It was further submitted
that this Court had entertained a somewhat similar grievance in
Writ Petition Nos.1429 of 1990 and 1430 of 1990 (Anil Harish and
Ors. Vs. Chief Secretary, Government of Maharashtra and Anr.).
The said writ petitions had been allowed by the judgment dated
23rd April 2004 and an order of eviction along with award of
damages came to be passed. The said judgment was challenged
before the Supreme Court and by it’s judgment dated 15th
November 2007 (Chief Secretary, Government of Maharashtra and
Anr. Vs. Anil Harish and Ors.) the appeal was allowed and the
judgment of this Court was set aside on the ground that the
remedy available to the petitioners therein under the
Maharashtra Rent Control Act, 1999 ought to have been invoked
especially since that was the statutory remedy available. The
High Court in exercise of jurisdiction under Article 226 of the
Constitution of India ought not to have entertained the writ
petition. On this basis, it was urged that in the absence of any
written order of requisition, the prayers made by the
petitioners may not be granted and the petitioners be directed
to avail the statutory remedy.
4
5. We have heard the learned counsel for the parties at length
and with their assistance, we have perused the documentary
material on record. It is an admitted position that sometime in
the year 1940, possession of Flat Nos.11 and 12 was voluntarily
handed over by the predecessor of the petitioners to the Police
Authorities. It is further admitted that there is no written
order requisitioning the aforesaid two flats for temporary use
by the Police Authorities. The dispute however is with regard
to nature of occupation of the Police Authorities. While the
petitioners seek to contend that such occupation is pursuant to
the two flats being requisitioned for use of the Police
Authorities, the respondents contend that having paid monthly
amounts to the predecessor of the petitioners and thereafter to
the petitioners, the occupation of the Police Department is not
pursuant to any requisition of the premises and that its
possession is permissive in nature. The documentary material on
record in the form of information supplied under the provisions
of the Act of 2005 indicates that there is no written Lease
Deed on the basis of which the Police Authorities have entered
into possession. The documents also show that monthly amounts
were paid regularly till December, 2007 and the petitioners had
made a grievance that since January, 2008, such payments were
not being made. On the basis of the material on record, it
cannot be concluded that the occupation of the Police
Authorities is pursuant to any order of requisition. There
being a dispute with regard to the nature of their occupation,
it would not be expedient for this Court to factually
adjudicate this aspect and record a finding as regards the
nature of occupation of the respondents. We thus find that
there is no material on record to substantiate the petitioners’
claim that the said two flats were requisitioned on the basis
of which the Police Authorities entered into possession.
6. It is true that the Act of 1948 came into force after
possession of the two flats was taken over in the year 1940.
The same however would not have material bearing on this issue
in the light of the fact that the nature of possession of the
respondents cannot be stated to be pursuant to any order of
requisition. The ratio of the decisions relied upon by the
learned counsel for the petitioners cannot be applied to the
facts of the present case.
Heavy reliance was placed by the learned counsel for the
petitioners on the orders passed in various writ petitions, as
referred above, along with which this writ petition was to be
heard. However, perusal of all the orders indicates that the
parties therein had arrived at a settlement and had filed
Consent Minutes of Order. The writ petitions were not
adjudicated on merits but the respondents therein agreed to
handover possession of the premises in question therein.
5
Hence, on facts, the aforesaid adjudication cannot be taken
into consideration. On the contrary, the learned Additional
Government Pleader is justified in relying upon the decision
of the Supreme Court in Chief Secretary, Government of
Maharashtra Vs. Anil Harish and others (supra).
7. We are not inclined to exercise jurisdiction under Article
226 of the Constitution of India in view of the fact that
there is no written order of requisition. Since the manner in
which the respondents entered into possession of the premises
is disputed, liberty is granted to the petitioners to avail
appropriate remedy as available in law to seek appropriate
reliefs. Keeping all points raised in the writ petition on
merits open, the same is dismissed with no order as to costs.
Rule stands discharged.”
3. Heard the learned counsel appearing for the appellants and Mr.
Shreyas Lalit, the learned counsel appearing for the State of
Maharashtra and others.
4. Mr. Nitin Pawar, the Deputy Commissioner of Police, Office of
the Commissioner of Police (Headquarter), Mumbai, Maharashtra is
also personally present today in the Court. We had some dialogue
with Mr. Pawar. According to the Officer, present before us, there
are two families of Police Officers residing in the two flats in
question. In fact, it has come to our notice today for the first
time that the flats in question are not being utilized as an Office
of the Police Department but two families are in fact residing in
these two flats in question. The monthly rent of each flat
admeasuring 600 square feet situated in South Bombay is Rs.700/-
(Rupees Seven Hundred) per month.
5. This is the right stage for us to look into the two orders
passed by us dated 28.01.2025 and 03.03.2025 respectively. The
order dated 28.01.2025 and 03.03.2025 respectively read thus:-
6
ORDER DATED 28.01.2025
“1. The respondents are in occupation of two flats of the
ownership of the petitioners herein since the year 1940. At the
relevant point of time, there was no written document in the
form of rent note or lease agreement or any other form of
understanding reduced into writing. However, it is not in
dispute that the department is occupying two flats as on date.
2. It appears that up to the year 2007 a very paltry amount was
being paid towards rent. Thereafter nothing was been paid till
2024. We are informed that again in 2004 some amount was paid.
3. The petitioners are desperately seeking to get back the
possession of the property, in question, which is in occupation
of the respondents.
4. We are of the view that the parties should sit together and
try to resolve the dispute. If the respondents want to retain
the possession they must enter into an appropriate lease
agreement providing for payment of rent determinable on the
market value of the property. Of course this would be without
prejudice to the rights and contentions of the petitioners, they
propose to raise before this Court while assailing the impugned
judgment passed of the High Court.
5. It has been more than 80 years that the department has been
occupying the two flats. The department can very easily shift
to any other place of their choice and allow the petitioners to
use their own property.
6. We hope and trust that Mr. Shreyas Lalit, the learned
counsel appearing for the respondents is able to persuade his
clients to bring an end to this litigation by some equitable
settlement.
7. Post this matter after four weeks.”
ORDER DATED 03.03.2025
“1. The learned counsel appearing for the parties jointly
submitted that talks of settlement are in progress. We are fully
conversant with the facts of this case. We once again request
Mr. Shreyas U. Lalit, learned counsel appearing for the
respondents to impress upon his client to resolve the dispute in
any circumstances.
2. We reiterate once again that the State cannot retain the
property for all times to come. We are informed that the
petitioners herein have put forward three proposals before the
State:
(I) That the State may retain the premises by paying market rent
as on date.
(II) The State may either outright purchase the property; or
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(III) The State should hand over vacant and peaceful possession
of the property.
3. We are of the view that all the three proposals are very
reasonable and State must consider either of the three very
seriously.
4. We adjourn this matter for one last time, on the next date,
if some settlement is placed on record well and good, otherwise
we shall proceed to pass final orders.
5. List the matter after four weeks.”
6. The orders dated 28.01.2025 and 03.03.2025 respectively quoted
above make the picture abundantly clear. There is no response worth
the name at the end of the respondents to the three proposals
referred to by us in our order dated 03.03.2025. In such
circumstances, we need not hear the parties anymore on any other
issues. We set aside the impugned judgment passed by the High Court
and allow the original writ petition preferred by the appellants
before the High Court. We grant four months’ time to the
respondents from today to handover vacant and peaceful possession
of both the flats in question to the appellants along with the
arrears of rent accrued till the date of handing over of the
possession of the two flats. We are informed that the Department
has not been paying rent from 2008 onwards. The rent shall be
calculated accordingly and be paid to the appellants.
7. We direct Shri Nitin Pawar, the Deputy Commissioner of Police
who is personally present in the court to file an undertaking on
oath stating that the Department shall hand over vacant and
peaceful possession of the two flats in question definitely to the
appellants within a period of four months from today. Such
undertaking in the form of affidavit shall be filed within one week
from today before the Registry of this Court.
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8. We are happy that we have been able to do justice with the
appellants who have been frantically trying to get back their
property (two flats) in question which the State occupied way back
in the year 1940 without any written order requisitioning the two
flats for temporary use by the Police authorities or any lease deed
in writing. It appears that the High Court was hesitant to exercise
its writ jurisdiction as it got confused on the aspect of nature of
possession. The High Court found the possession to be permissive in
nature. In such circumstances, the High Court thought fit to
relegate the appellants to avail alternative remedy of filing a
suit.
9. The High Court should have kept the year in mind i.e. 1940.
This country was ruled by the Britishers. The country was fighting
hard to seek independence from the Britishers. Bombay in the year
1940 was altogether different. At the relevant point of time, the
Department perhaps might have persuaded the appellants or their
predecessors in title to part with the possession of the two flats
for the Police Department. However, it has been now 84 years that
the Police Department has been in occupation and use of the two
flats. Look at the conduct of the Department. We are informed that
past eighteen years even rent has not been paid.
10. To ask the appellants to file a suit and recover the
possession would be like adding insult to the injury. At this point
of time, if the appellants are asked to institute a suit, we wonder
how many years it would take by the time the litigation would come
to an end if at all it reaches upto the highest Court of the
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country. These are the hard facts, the High Courts are expected to
keep in mind in today’s times.
11. The rule of exclusion of writ jurisdiction by availability of
an alternative remedy is a rule of discretion and not one of
compulsion. There can be many contingencies in which the High Court
may be justified in exercising its writ jurisdiction inspite of
availability of an alternative remedy.
12. This is one of those cases wherein the High Court should have
readily exercised its writ jurisdiction. The constitutional powers
vested in the High Court or the Supreme Court cannot be fettered by
any alternative remedy available to the party concerned. Injustice,
whenever and wherever it takes place, should be struck down as an
anathema to the rule of law and the provisions of the Constitution.
13. With the aforesaid, the appeal stands disposed of.
14. Pending application(s), if any, stands disposed of.
……………………………………………..J.
[J.B. PARDIWALA]
……………………………………………..J.
[R. MAHADEVAN]
New Delhi
th
Dated; 08 April, 2025