Full Judgment Text
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PETITIONER:
MAHESHCHANDRA TRIKAMJI GAJJAR
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT: 09/03/2000
BENCH:
K.T.Thomas, Y.K.Sabhwarwal
JUDGMENT:
Y.K.SABHARWAL J.
Leave granted.
Respondent No.3 was a State Government employee. He
retired from Government service on 30th September, 1993. As
a Govt. servant, respondent no.3 was allotted the premises
in question. These were requisitioned premises, having been
requisitioned under the order of requisition dated 17th
April, 1958 under the Bombay Land Requisition Act, 1948.
The order of requisition has been set aside but respondent
no.3 continues to be in possession of the premises. Has
respondent no.3 any right to continue with the possession of
the premises despite the order of requisition having been
set aside and respondent no.3 having retired from service,
is the question for consideration before us.
The appellant and respondent No.4 are the co-owners of
the property. In this appeal, we are not concerned with
their inter se disputes which are the subject matter of Suit
No. 4120 of 1990 which suit is for partition and other
consequential reliefs and is pending in the High Court of
Bombay. Under an ad interim order passed in that suit, on
derequisition the property is to be restored to respondent
no. 4 and has to be kept by him by way of interim measure.
The appellant challenged the order of requisition
dated 17th April, 1958 in the writ petition filed by him in
the High Court of Bombay. Apart from questioning the
legality and validity of requisition, the appellant also
sought restoration of possession of the premises in
question. The challenge to the legality and validity of the
requisition was based upon the decision of this Court in
Grahak Sanstha Manch & Ors. v. State of Maharashtra
[(1994) 4 SCC 192] where it has been held that the
requisition cannot be for indefinite period and continuance
of an order of requisition for a period of 30 years was
unreasonable.
By judgment dated 19th January, 1999, a Division Bench
of the Bombay High Court following the ratio of the case of
Grahak Sanstha Manch has quashed the order of requisition
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dated 17th April, 1958. None has questioned the setting
aside of the order of requisition. It is not in dispute
that the said aspect has attained finality. The prayer for
restoration of possession of the premises in question has,
however, been declined by the High Court. In respect of the
said prayer, the High Court has directed that the parties
shall abide by the decision of this Court in Special Leave
Petition No. 15788 of 1998.
The background leading to filing of Special Leave
Petition No.15788 of 1998 may be briefly noticed. After the
decision in the case of Grahak Sanstha Manch, the State of
Maharashtra enacted Maharashtra Act No.XVI of 1997 amending
the Bombay Rents, Hotel and Lodging House Rates Control, the
Bombay Land Requisition and Bombay Government Premises
(Eviction)(Amendment) Act, 1996 w.e.f. 7th December, 1996.
This amendment was declared unconstitutional by judgment of
the Division Bench of the High Court of Bombay dated 27th
July, 1998. Against the said judgment, the State of
Maharashtra preferred Special Leave Petition No. 15788 of
1998 which has been granted and the dispossession stayed by
this Court in terms of orders 6th October, 1998. The order
dated 6th October reads as under :-
" Leave granted. Printing dispensed with.
Hearing expedited.
It will be open to the parties to mention before the
first court for fixing a date of hearing of these appeals.
Pending hearing and final disposal of these appeals interim
stay as to dispossession is granted. The stay is granted on
the condition that the allottees who have been made tenants
under the impugned legislation shall file an undertaking
before this Court that in case they lose in these appeals
they will pay monthly compensation at such rate as may be
determined by this Court for the premises in their
possession. The allottees shall file their undertakings
within eight weeks from today."
In view of aforesaid order, the High Court in the
impugned judgment observed that it is not possible to
entertain the prayer for restoration of possession for which
the party shall abide by the decision of this Court.
Respondent no.3 was directed, however, to deposit the amount
of compensation in Suit No. 4120 of 1994 without prejudice
to the rights and contentions of the parties.
In this appeal, the challenge to the impugned judgment
is to the extent it declines the prayer of the appellant for
restoration of possession of the premises in question.
Learned counsel for the appellant submits that assuming the
amendments inserted under Maharashtra Act No.XVI of 1997 to
be valid, respondent no.3 will still have no right to
continue in occupation of the premises. For the present
purposes, we would assume the amendments to be valid
(leaving the question of the constitutional validity to be
determined in appeal arising out of SLP(C) No. 15788 of
1998 and on that basis examine the contention of respondent
no.3 to continue in possession of the premises.
By Amendment Act No.XVI of 1997, the statutory
protection was sought to be given to the allottees of the
requisitioned premises by providing for the State Government
or the Government allottees becoming deemed tenants of the
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requisitioned premises. By the Amendment Act, clause (1A),
defining ‘Government allottee’ was inserted. Another new
provision inserted was Section 15B providing for the State
Government or Government allottees to become tenant of
premises requisitioned or continued under requisition.
Section 5(1A) and Section 15B read as under :-
"Section 5(1A) - Government allottee - (a) in relation
to any premises requisitioned or continued under requisition
which are allotted by the State Government for any non-
residential purpose to any department or office of the State
Government or Central Government or any public sector
undertaking or corporation owned or controlled fully or
partly by the State government or any cooperative society
registered under the Maharashtra Co-operative Societies Act,
1960 or any foreign consulate, by whatever name called, and
on the date of coming into force of the Bombay Rents, Hotel
and Lodging House Rates Control, Bombay Land Requisition and
Bombay Government Premises (Eviction) (Amendment) Act, 1996,
are allowed by the State government to remain in their
occupation and possession, means the principal officer-in-
charge of such office or department or public sector
undertaking or corporation or society or consulate; and
(b) in relation to any premises requisitioned or
continued under requisition which are allotted by the State
Government for residential purpose to any person and on the
date of coming into force of the Bombay Rents, Hotel and
Lodging House Rates Control, Bombay Land Requisition and
Bombay Government Premises (Eviction) (Amendment) Act, 1996,
such person or his legal heir is allowed by the State
Government to remain in occupation or possession of such
premises for his or such legal heir’s own residence, means
such person or legal heir;"
"Section 15B - State Government or Government allottee
to become tenant of premises requisitioned or continued
under requisition-
(1) On the date of coming into force of the Bombay
Rents, Hotel and Lodging House Rates Control Bombay Land
Requisition and Bombay Government Premises (Eviction)
(Amendment) Act, 1996 (hereinafter in this section referred
to as ‘the said date’), -
(a) the State Government, in respect of the premises
requisitioned or continued under requisition and allotted to
a Government allottee referred to in sub- clause (a) of
clause (1A) of section 5; and
(b) the Government allottee, in respect of the
premises requisitioned or continued under requisition and
allotted to him as referred to in sub-clause (b) of clause
(1A) of section 5,
shall, notwithstanding anything contained in this Act,
or in the Bombay Land Requisition Act, 1948, or in any other
law for the time being in force, or in any contract, or in
any judgement, decree or order of any court passed on or
after the 11th June, 1996, be deemed to have become, for the
purposes of this Act, the tenant of the landlord; and such
premises shall be deemed to have been let by the landlord to
the State Government or, as the case may be, to such
Government allottee, on payment of rent and permitted
increases equal to the amount of compensation payable in
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respect of the premises immediately before the said date.
(2) Save as otherwise provided in this section or any
other provisions of this Act, nothing in this section shall
affect, -
(a) the rights of the landlord including his right to
recover possession of the premises from such tenant on any
of the grounds mentioned in section 13 or in any other
section;
(b) the right of the landlord or such tenant to apply
to the court for the fixation of standard rent and permitted
increases under this Act, by reason only of the fact that
the amount of the rent and permitted increases, if any, to
be paid by such tenant to the landlord is determined under
sub-section (1);
(c) the operation and the application of the other
relevant provisions of this Act in respect of such tenancy."
In Writ Petition No. 98 of 1997 and other connected
writ petitions titled Ravi Ramakrishnan Subramanyam v.
State of Maharashtra & Ors, a Division Bench of Bombay High
Court in terms of its judgment dated 30th January, 1997 had
held that for getting benefit of becoming a deemed tenant,
the person has to satisfy that : (1) the requisitioned
premises were allotted by the State Government for
residential purposes.
(2) on 7th December, 1996, such person or his legal
heir was in occupation or possession of such premises.
(3) such person or his legal heir is allowed by the
State Government to remain in occupation or possession of
such premises. If an eviction order under the Requisition
Act is passed by the Competent Authority, it cannot be said
that the State Government has allowed such person to remain
in occupation or possession of such premises or that the
said person is allowed to remain in lawful occupation or
possession. After the eviction order passed by the
competent authority, which becomes final under the Bombay
Requisition Act, it cannot be said that to such an allottee,
permission is granted by the State Government to continue in
such occupation. Orders passed by the Competent Authority
under the Requisition Act are not nullified.
(4) As against this, a person would get benefit
notwithstanding any judgement, decree or order passed by the
Court after 11th June, 1996. However, if the judgement,
decree or order is passed prior to 11th June, 1996, it is
not nullified. Therefore, the allottee would not get
benefit of his provision if judgement, decree or order is
passed prior to 11th June, 1996 even in case where the Court
has granted time for vacating the premises after 7th
December, 1996.
The aforesaid decision of Bombay High Court resulted
in issue of the Bombay Land Requisition and the Bombay
Government Premises (Eviction)(Amendment) Ordinance, 1997
(Maharashtra Ordinance No. XX of 1997) dated 26th December,
1997 thereby making amendments in Bombay Rents, Hotel and
Lodging House Rent Control Act, 1947, Bombay Land
Requisition Act, 1948 and Bombay Government Premises
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(Eviction) Act, 1955. The relevant part of the Ordinance
which, we have been told by learned counsel for respondent
no.3 became an Act later, reads as under :-
"2. Amendment of Section 5 of Bom.LVII of 1947 ?? In
section 5 of the Bombay Rents, Hotel and Lodging House Rates
control Act, 1947 (hereinafter referred to as ‘the principal
Act’), in clause (1A)??
(a) in sub-clause (a), for the words ‘are allowed by
the State Government to remain in their occupation and
possession’ the words ‘are in their occupation or
possession’ shall be and shall be deemed to have been
substituted with effect from the 7th December, 1996;
(b) in sub-clause (b), for the words ‘such person or
his legal heir is allowed by the State Government to remain
in occupation or possession of such premises for his or such
legal heir’s own residence’ the words ‘such person or his
legal heir is in occupation or possession of such premises
for his or such legal heir’s own residence’ shall be and
shall be deemed to have been substituted with effect from
the 7th December, 1996.
3. Amendment of section 15B of Bom.LVII of 1947 ??
In section 15B of the principal Act, in sub-section (1),
after the figures, letters and words ‘11th June 1996’ the
words and figures ‘or in any order of eviction issued by the
Competent Authority or by the Appellate Authority, under the
Bombay Land Requisition Act, 1948’, shall be and shall be
deemed to have been inserted with effect from the 7th
December, 1996.
4. Amendment of section 9 of Bom.XXXIII of 1948 ??
In section 9 of the Bombay Land Requisition Act, 1948, in
sub-section (8), ??
(a) for the words ‘were allowed by the State
Government to continue or to remain in occupation or
possession of such premises’ the words ‘were in occupation
or possession of such premises’ shall be and shall be deemed
to have been substituted with effect from the 7th December,
1996.
(b) in the Explanation,??
(i) in clause (a), for the words ‘are allowed by the
State Government to remain in their occupation and
possession’ the words ‘are in their occupation or
possession’ shall be and shall be deemed to have been
substituted with effect from the 7th December, 1996;
(ii) in clause (b), for the words ‘such person or his
legal heir is allowed by the State Government to remain in
lawful occupation or possession of such premises for his own
or such legal heir’s residence’ the words ‘such person or
his legal heir is in occupation or possession of such
premises for his or such legal heir’s own residence’ shall
be and shall be deemed to have been substituted with effect
from the 7th December, 1996.
5. Amendment of section 2 of Bom.II of 1956 ?? In
section 2 of the Bombay Government premises (Eviction) Act,
1955, in clause (b) for the words ‘are allowed by the State
Government to remain in their occupation and possession’ the
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words ‘are in their occupation or possession’ shall be and
shall be deemed to have been substituted with effect from
the 7th December, 1996.
6. Removal of doubt ?? For the removal of doubt, it
is hereby declared that the conferral of tenancy rights on a
Government allottee under the provisions of the principal
Act as amended by this Ordinance shall not have the effect
of setting aside the decision of a court inter partes to
which effect has already been given, or in any way affect
the undertaking given by or on behalf of any Government
allottee in the court.
The contention urged on behalf of the appellant is
that none of the aforesaid amendments create any right in
favour of respondent no.3 who retired from service on 30th
September, 1993, to continue with possession of premises in
question even after retirement. Despite these amendments,
respondent no.3 cannot be treated as a ‘Government Allottee’
and, a deemed tenant, is the contention.
The continued requisition for a period of 30 years was
held to be unreasonable by this court in the case of Grahak
Sanstha Manch. The effect of the said decision would have
been the vacation of the premises by the State government
and the Government allottees on account of invalidity of the
order of requisition. With a view to overcome it,
Maharashtra Act XVI of 1997 was enacted. That has been
declared unconstitutional by the High Court but appeals are
pending in this Court. For the present purposes, we assume
these amendments to be valid. Would section 5(1A) make a
retired person a Government allottee? The amendment was
inserted w.e.f. 7th December, 1996. Respondent no.3 had
already retired nearly three years earlier. In the present
case, we are concerned with clause (b) of Section 5(1A)
which inter alia deals with requisitioned premises that are
allotted for residential purposes. Allowing a retired
person to indefinitely remain in occupation or possession of
the requisitioned premises was not the object of the
amendments. It is also not possible to read clause (b) in
such a manner on its plain language. The Statement of
Objects and Reasons for Amendment Act XVI of 1997 inter alia
provides as under :- "1. The Bombay Land Requisition Act,
1948 is enacted to provide for requisition of land for
relieving the pressure of accommodation, especially in urban
areas, by regulating distribution of vacant premises for
public purposes, and for certain other purposes incidental
thereto. Certain premises which have been requisitioned or
continued under requisition under the said Act have been
allotted for non-residential purpose to many departments or
offices of the States Government or Central Government or
public sector undertakings, corporations owned or controlled
fully or partly by the State Government or cooperative
societies or foreign consulates and for residential purpose
to different categories of persons such as employees of the
State or Central government, public sector undertakings,
corporations, or homeless persons, etc. Many of these
premises have since been derequisitioned by the Government,
as per Court orders or having regard to certain other
circumstances. But still there are quite a large number of
allottees in occupation of such premises, for a number of
years, on payment of compensation as determined under the
said Act. The allottees of such premises include Government
servants who are still in Government service and others.
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2. Under the existing provisions of section 9 of the
Bombay Land Requisition Act, 1948, as last amended by Mah.
Act No. VII of 1995, the premises which have been
requisitioned on or before 27th December, 1973 will have to
be released from the requisition on or before 26th December,
1997 and those which have been requisitioned after 27th
December, 1973, within twenty-four years from the date on
which possession of such land was surrendered or delivered
to, or taken by, the State Government. Further the Supreme
Court in Writ Petition No. 404 of 1986 filed by the
Association of Allottees of the Requisitioned premises and
Writ Petitions No. 53 of 1993 and 27 of 1994 filed by the
Grahak Sanstha Versus State of Maharashtra, has given a
final decision on the 27thApril 1994 in the matter of
requisitioned premise [AIR 1994, SC, 2319], upholding the
decision in the H.D.Vora’s case [(1984) 2 SCC 337] and has
directed that the occupants of the requisitioned premises,
the continued requisition of which was quashed, were bound
to vacate and hand over vacant possession of such premises
to the State Government on or before 30th November, 1994 so
that the Government could derequisition such premises and
hand over the vacant possession thereof to the landlords.
Accordingly, derequisitioning process, in respect of all
such premises and applying the ration of the said Supreme
Court Judgment, in several other premises, has already been
completed by the State Government. There are, however, as
aforesaid, nearly 604 residential premises and about 90
non-residential premises which are still under requisition
in Brihan Mumbai and 138 in other districts which include
requisitioned premises allotted to Government servants who
are still in Government service and others. 3. As a matter
of policy, the State Government has stopped requisitioning
of new premises except in some special cases. As a result
of this policy and also due to, continued acute shortage of
accommodation with Government and astronomical rise in the
cost of properties in Mumbai, it would not be possible for
Government to give suitable alternative accommodation to all
such allottees if, applying the ratio of the said Supreme
Court Judgment the Government has to vacate all the
requisitioned premises. The situation is, therefore, likely
to result in the Government allottees presently in
occupation of the requisitioned premises being rendered
without any office accommodation or homeless. It is
imperative to find a solution to this grave situation and to
give some kind of statutory protection to these allottees of
the requisitioned premises.
4. As the landlords are generally unwilling to accept
such Government allottees as contractual tenants, on payment
of the standard rent and permitted increases, Government
considers it expedient, in greater public interest, to make
suitable provisions for providing the protection of
statutory tenancy under the Rent Act to the State Government
and to such Government allottees; and consequently to
provide for the release of such premises from requisition.
5. As many landlords have already approached the High
Court seeking eviction orders of the allottees of the
requisitioned premises and the possibility of others also
approaching the Court for such eviction orders cannot be
ruled out, thereby frustrating the very object of this
legislation, it is also considered expedient to provide in
the proposed section 3 of this Ordinance that, such
conferral of statutory tenancy rights on the allottees shall
not be affected by any eviction orders passed by the Court
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on or after 11th June, 1966 (being the date of the
Government decision to undertake such legislation)."
It is evident that the object was to protect those who
would have been rendered homeless though still in Government
service on account of the shortage of accommodation with the
Government and it being not possible for the Government to
give suitable alternative accommodation to such Government
allottees. It is not and cannot be the case of the
respondents that even after retirement, the Government had
any obligation or policy to provide accommodation to retired
employee. If the contention of respondent no.3 that he
became a deemed tenant on account of 1997 amendment is
accepted, it would show that the Government intended to
confer a special benefit of providing residential
accommodation to occupants of requisitioned accommodation as
a superannuation benefit. That is clearly not the object of
the amendments. If that was so, there would be a special
class of employees. A class that is allotted, while in
service, with accommodation which is requisitioned which
class would get the special benefit even on superannuation.
This class will become tenant under the original owner after
retirement with the benefits of all protections under Bombay
Rents Hotel and Lodging House Rent Rates Control Act, 1947.
Their heirs and successors may also subject themselves to
eviction only on proof of one or the other ground of
eviction provided in the Act. Thus, if one is fortunate
enough to be allotted accommodation out of the requisitioned
premises while in service, he gets by way of superannuation
gift, the continued tenancy and others who may not be that
fortunate to get allotment of such premises, will have to
vacate Government accommodation as per the relevant rules
after retirement. We are unable to attribute such an
intention to the aforesaid amendments. The deletion of the
words ‘allowed by the State Government to remain’ from
clause (b) of Section 5(1A) by Ordinance dated 26th
December, 1997 also does not alter the status of an occupant
like respondent no.3. The word ‘allowed’ in the aforesaid
provision may mean some positive sanction and not mere
slackness on the part of the Competent Authority in not
taking action for getting the premises vacated. It is
evident that the accommodation or possession of the premises
within the meaning of clause (b) by a person who when
allotted was a Government employee has to be on account of
some right to occupy or possess the premises. The continued
occupation or possession without any such right would not
confer on the occupant status of a Government allottee
simply on account of such person being in occupation or
possession of requisitioned premises even after retirement.
The reason for authorities not taking any action to get such
premises vacated is explainable on account of the said
premises being not available for allotment again to any
existing Government servant. On this account, the
authorities may not initiate any proceedings for getting the
possession but that would not confer on the occupant the
status of ‘Government Allottee’ within the meaning of the
term as defined in the Amendment Act. Thus, assuming the
Amendments to be valid, we find that no right in favour of
respondent no.3 to continue with the possession of the
premises even after the invalidity of the order of
requisition dated 17th April, 1958 and his retirement.
Respondent no.3 cannot be treated as deemed tenant.
The other contention urged on behalf of respondent
no.3 that he is entitled to continue in possession in view
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of the Stay order granted by this Court on 6th October, 1998
is also without substance. The said order only relates to
those allottees who have become tenants under the Amendment
Act. The amendment has not conferred status of the tenant
on respondent no.3. Therefore, the question of the order
dated 6th October, 1998, protecting the possession of the
respondent No. 3 does not arise. The filing of any
undertaking by respondent no. 3 in the said appeal filed by
the Welfare Association is of no consequence and cannot
affect the rights of the appellant and the respondent no.4
who are not parties in the said appeals.
In view of the aforesaid, we do not find any
justification in respondent no.3 continuing with the
possession of the premises in question. Accordingly, we
direct him to restore possession of the premises in question
in favour of the appellant and respondent no.4. The
possession will be delivered to respondent no.4 in view of
the orders passed in suit for partition No. 4120 of 1994
subject to any further orders that may be passed in the said
suit. Respondent no.3 is granted three months’ time to
vacate and hand over possession to respondent no.4. The
appeal is allowed in the above terms leaving the parties to
bear their own costs.