2002(3) ALL MR 414
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. LODHA AND S.J. VAZIFDAR, JJ.
Shri. Kanhayalal Ramlal Bagadia Vs. The State Of Maharashtra & Ors.
Writ Petition No.2816 of 1991
16th March, 2002
Petitioner Counsel: Mr. C. J. SAWANT, Mr. M. L. BANSAL
Respondent Counsel: Mr. MILIND MORE
(A) Requisitioning and Acquisition of Immovable Property Act (1952), Ss.3(2), 4, 6(1A)(a) and 7 - Property requisioned for 15 years - It has to be surrendered or delivered to owner after expiry of such period - Exception is made in Section 7 - Possession need not be given if such property is acquired under S.7.
The provisions of Section 6(1A) are mandatory. Under Section 6(1A) the Central Government has to release from requisition any property requisitioned under the said Act after the commencement of the Amending Act of 1970, on or before the expiry of the period mentioned therein from the date on which possession of the said property was surrendered or delivered to, or taken by the Competent Authority under Section 4. The only exception is if such property is acquired under Section 7 within the period specified therein. Admittedly in the instant case the said property was not acquired under Section 7. Therefore, the authorities cannot continue in possession of the premises. [Para 9,12]
(B) Constitution of India, Art.226 - Requisitioning and Acquisition of Immovable Property Act (1952), S.8 - Property requisitioned not surrendered or delivered to owner after expiry of period - Possession of authorities becomes wrongful - Liability to pay compensation - Matter cannot be adjudicated in exercise of extraordinary jurisdiction under Art.226 - Party has to take recourse to S.8 which provides machinery to determine quantum of compensation. (Para 15)
S. Rajdev Singh Vs. Union of India, AIR 1989 Delhi 238 [Para 10]
Kant Kumari Vs. Union of India, 44 (1991) Delhi Law Times 694(DB) [Para 10]
Rajiv Kumar Aggarwal Vs. Union of India, 63(1996) Delhi Law Times 183(DB) [Para 11]
S. J. VAZIFDAR, J. :- The Petitioner has impugned an order of requisition dated 17-2-1966 passed under the Requisition and Acquisition of Immovable Property Act, 1952 (hereinafter referred to as "the said Act") and seeks recovery of possession of the premises requisitioned thereunder. The petition also seeks compensation for wrongful use of the said premises from the date on which the requisition order came to an end till possession of the premises is handed over to the Petitioner.
3. Unit Nos.10A and 10B on the ground floor of Bharat Industrial Estate situate at Sewree, Mumbai (hereinafter referred to as "the premises") were originally owned by one P.I. Bhatia from whom the firm M/s. Kanhayalal and Company acquired the same. On dissolution of the firm, the said premises came to the share of the Petitioner who is now admittedly the owner thereof.
4. In exercise of powers conferred by Sections 3(2) and 4 of the said Act, Respondent No.2, the Collector of Bombay, requisitioned the said premises and ordered the said P.I. Bhatia to surrender or deliver possession thereof to the Post Master General, Bombay within 30 days thereof. Respondent No.2 took possession of the said premises on 18-3-1966. A Memorandum of Agreement dated 24th September, 1970 was entered into between the said firm and the President of India in the prescribed form in respect of the said premises. A sum of Rs.1,194.39 per month was agreed to be paid as compensation in respect of the said property. Clause 5 of the Agreement provided that any dispute or difference arising out of or concerning the subject matter thereof shall be referred to an Arbitrator to be appointed by the Government and the decision of such Arbitrator shall be conclusive and binding on the parties thereto. The provisions of the Arbitration Act, 1940 were made applicable.
The monthly rent was subsequently increased and was Rs.1618.14 when the Petition was filed.
5. It would be convenient at this stage to refer to Section 6(1A) of the said Act. Sub-section (1A) was inserted in Section 6 with effect from 11th March, 1970 by the RAIP (Amendment) Act, 1970 and reads as under :-
"(1A) Notwithstanding anything contained in sub-section (10) the Central Government shall release from requisition:-
(a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of the Requisitioning and Acquisition of Immovable Property (Amendment) Act, 1970, on or before the expiry of a period of fifteen years from such commencement;
(b) any property requisitioned under this Act after such commencement, on or before the expiry of a period of fifteen years from the date on which possession of such property was surrendered or delivered to, or taken by the competent authority under Section 4.
unless such property is acquired under section 7 within the period of fifteen years aforesaid."
Under section 7, where any property is subject to requisition, the Central Government may, if it is of the opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property in the manner specified therein.
6. The said premises having been requisitioned on 17-2-1966, would be governed by the provisions of Section 6(1A)(a) as they were requisitioned under the said Act before the commencement of the RAIP (Amendment) Act, 1970.
7. The said firm, M/s. Kanhayalal & Co., by their letters dated 24th May, 1988 and 9th January, 1990 requested the Respondents to hand over possession of the said premises. The Respondents were also called upon to pay various amounts. By a letter dated 9-1-1990 the said firm, in the alternative and without prejudice to the above stated that in view of the rise in market price, the compensation should be enhanced substantially. They also contended that they had to spend enormous amounts for repairs to the building. In response thereto the Department of Posts by a letter dated 9th April, 1990 stated that the matter had been taken up with the Director of Postal Services, that a Fair Rent Assessment Committee had been appointed and that they would intimate the firm the further progress in the matter in due course. Not having received any further communication, the said firm stated that though the period of requisition had elapsed, the Respondents had not surrendered the property and consequently they had no alternative but to file the Petition in the High Court.
8. We shall pause in the narration of facts at this stage and consider the main submission on behalf of the Petitioners viz. that the requisition came to an end and the said premises ceased to be requisitioned premises from 17-3-1976 and in any event from 17-3-1981 i.e. 10 years or 15 years from 18-3-1966 which was the date on which possession of the said premises was taken. The submission is well founded.
9. The provisions of Section 6(1A) are mandatory. Under Section 6(1A) the Central Government shall release from requisition any property requisitioned under the said Act after the commencement of the Amending Act of 1970, on or before the expiry of the period mentioned therein from the date on which possession of the said property was surrendered or delivered to, or taken by the Competent Authority under Section 4. The only exception is if such property is acquired under Section 7 within the period specified therein. Admittedly the said property was not acquired under Section 7.
10. A Division Bench of the Delhi High Court in S. Rajdev Singh and Anr. Vs. Union of India and Ors. (AIR 1989 Delhi 238) held that after the expiry of the period of requisition, the holding of possession under the cover of requisition is unauthorised and unlawful and that thereafter the authorities are not entitled to remain in possession of the premises. This judgment was followed by a Division Bench of the same Court in the case of Kant Kumari Vs. Union of India and Ors. [44 (1991) Delhi Law Times 694 (DB)]. B.N.Kirpal, J. (as His Lordship then was) speaking for the Court observed in paragraph 9 as under :-
"9. The period of requisition having come to an end the provisions of Section 6 come into operation. According to sub-section 1A of Section 6 the Central Government is required to release the property from requisition on the expiry of the period of 17 years from the commencement of the amended Act, 1970. The language of sub-section 1A of Section 6 is mandatory. There is a right which is given to the co-owners to get back the possession of the property in question. The only exception to the restoration of the property is if the said property is acquired under Section 7. The said property could, under the provisions of Section 7, have been acquired only during the period of requisition. That period, as already noted, has admittedly expired in 1987. Mr. Tewari informs that no proceedings have been taken for acquisition of the property in question in accordance with the provisions of Section 7 of the Act. This being so, the Petitioner and the other co-owners are entitled to get back the possession of the property in question. We may note that a similar question had arisen before a Division Bench of this Court in Civil Writ Petition No.1577 of 1985, Raj Dev Singh and others Vs. Union of India and the Union of India was directed in that case to hand over possession of the property to the co-owners after the requisition under the said Act had come to an end.
11. In Rajiv Kumar Aggarwal and Anr. Vs. Union of India and Ors. [63 (1996) Delhi Law Times 183 (DB)] yet another Division Bench of the Delhi High Court had occasion to consider the provisions of Section 6 of the said Act. R. C. Lahoti, J. (as His Lordship then was) speaking for the Court held as under in paragraph 15 :-
"15. Requisition comes to an end on expiry of the period of requisition and can in no case be extended beyond the prescribed period (of 17 years). On the expiry of the said period the only thing that remains to be done is the performance of statutory obligation of the Central Government to restore back the possession to the person from whom it was taken. The Central Government cannot by its own default allowed to extend the period of requisition and thus take advantage of its own wrong or failure to take timely action. To put it briefly, on lapse of period of requisition the character of the property ceases to be requisitioned property whether or not the possession has been restored back. Any other construction would render nugatory the provision contained in Section 6, specially Sub-section (1-A) thereof."
12. We are in respectful agreement with the aforesaid judgments of the Delhi High Court. The provisions of Section 6(1A) are mandatory. The requisition of the said premises has come to an end and the Respondents are bound to restore possession thereof to the Petitioner. The Respondents are not entitled to continue in possession of the said premises.
13. Mr. More, the learned Assistant Government Pleader appearing on behalf of Respondent Nos.1 and 2, invited our attention to a letter dated 25-2-1987 from the previous owners of the premises to the Respondents stating that they were willing to allow the postal authorities, for whom the premises had been requisitioned, to continue in occupation of the said premises at an increased rent as recommended by the Fair Rent Assessment Committee. It was stated that if the rent is increased, they would enter into an agreement of lease. In response thereto the Department of Posts by a letter dated 5th October, 1990 merely stated that the request for increase in rent was under examination and requested the previous owner to furnish certain information. The Department of Posts also sent reminders in this regard dated 30th October, 1990, 3rd December, 1990, 27th December, 1990, 7th March, 1991 and 29th April, 1991.
14. The reference to the above correspondence is without a sequitur. Firstly the offer of 25-2-87 by the previous owner to enter into an agreement of lease at an increased rent was responded to for the first time by the Department of Posts only on 5th October, 1990 i.e. after a period of almost three years and eight months. Moreover there was admittedly no concluded contract between the parties. The offer was made conditional upon an increase in rent to be decided by the Fair Rent Assessment Committee of the Department of Posts. Admittedly no such reference was even made to the said Committee. Nor was there any letter accepting this offer. The Petitioner filed the petition on 2nd September, 1991. The nature of the present petition clearly put an end to the offer that had been made and which remained unaccepted till the date of the filing of the Petition. Even in the affidavit in reply filed on behalf of Respondent No.3 and 4 there is no suggestion that the offer was accepted at any stage. In the circumstances even if it was contended on behalf of the respondents that the offer dated 25th April, 1987 fructified into a contract (which it did not), we would have had no hesitation in rejecting the same.
15. The only aspect that now remains to be decided is the Petitioner's prayer for compensation for wrongful use of the said premises after the possession of the Respondents became wrongful. It is not possible for this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India to determine the quantum of compensation. Section 8 of the said Act, however, provides a machinery for the determination of the same.
(a) The Petition is allowed in terms of prayer clauses (a) (b) and (c).
(b) The Respondents are directed to deliver vacant and peaceful possession of the said premises to the Petitioner on or before 30th June, 2002.
(c) Respondent No.3 shall appoint an Arbitrator in accordance with Section 8 of the said Act. The Arbitrator so appointed shall determine the compensation that the Petitioner is entitled to.
Certified copy expedited.