Writ Pettiion No.1008 of 2010

7th January, 2014

Petitioner Counsel: Mr. D.H. MEHTA
Respondent Counsel: Mr. SHEKHAR INGAWALE, Mr. VINAY J. HEGDE

Cases Cited:
H. D. Vora Vs. State of Maharashtra, AIR 1984 SC 866 [Para 4,12,14]
Kunal Chaudhari Vs. Purshottam B. Todi, 1997(3) ALL MR 224 (S.C.)=AIR 1997 SC 2033 [Para 13,14,20,24]
Maheshchandra T. Gajjar Vs. State of Maharashtra, 2000 (3) Bom C R 202 [Para 14]
Welfare Association A R P Maharashtra Vs. Ranjit P. Gohil, AIR 2003 SC 1266 [Para 14,18,20,24]
Tata Housing Development Company Ltd. & Ors. Vs. State of Maharashtra, 2006(2) ALL MR 574=2006 (1) Bom. C R 674 [Para 16]
Prakash Babu Harmalkar Vs. State of Maharashtra, 2006 (2) Bom C R 54 [Para 16,27,28]
Kamal K. Sahasrabuddhe Vs. Controller of Accommodation & Ors., 2007(6) ALL MR 641 =2008 (1) Bom CR 779 [Para 22,24]
Sarvagnya Prataprai Trivedi Vs. The Controller of Accommodation and Anr., Writ Petition No.5141/2007, Dt.22/1/2008 [Para 23,25]
Neeta Ramesh Shelar Vs. The Controller of Accommodation & Ors., Writ Petition (L.) No.1369/2010, Dt.17/6/2010 [Para 26]

JUDGMENT

JUDGMENT :- By this Writ Petition under article 226 of the Constitution of India the Petitioners pray for issuance of a Writ of Certiorari or any other Writ in the nature thereof to call for all records and thereafter direct that possession of Flat No.3, admeasuring about 730 Sq.ft. situate at on the first floor of building known as Parna Kutir, Plot No.23, Nagardas Plot Scheme, S.No.31 H.No.1(part) Revision Survey No.28, Andheri, Mumbai 400 069. (for short 'said flat') be handed over to them.

2. The facts necessary to appreciate the nature of the relief are that the Respondent Nos.1 to 3 are the authorities exercising powers under the Bombay Land Acquisition Act, 1948. The Respondent No.4 is the Commissioner of Police for whose benefit this said flat was requisitioned by Respondent Nos.1 to 3. Respondent No.5 is the present occupant of the said flat.

3. It is undisputed that the said flat was requisitioned by Respondent Nos. 1 and 3 prior to 1962 for the benefit of Respondent No.4. It is claimed that the Respondent No.4 was the government allottee of the said flat.

4. It is stated that the Hon'ble Supreme Court delivered a judgment in the case of H. D. Vora V. State of Maharashtra reported in AIR 1984 SC Pg. 866. In terms of that judgment the requisitioned flats or immovable property cannot be continued to be requisitioned indefinitely. Therefore, the Petitioners who are claiming to be the owners of this said flat issued a notice through advocate dated 15th November, 1997 calling upon the Respondent Nos.1 to 4 to derequisition the said flat and hand over vacant and peaceful possession of the same to them.

5. The Petitioners complained that the Respondent Nos.1 to 4 failed and neglected to comply with the requisition contained in the Advocate's notice. Therefore, a Writ Petition was filed in this Court being Writ Petition No.14 of 1998. In that Writ Petition an order was passed on 27th July, 1998 inter-alia directing the Respondent Nos.1 to 4 to hand over vacant and peaceful possession of the said flat to the Petitioners.

6. The order passed in Writ Petition No.14 of 1998 and connected matters was challenged in the Hon'ble Supreme Court of India by Welfare Association ARP Maharashtra and another being CA No.5168 of 1998. By judgment and order dated 18th February, 2003 this appeal was disposed off and the Hon'ble Supreme Court upheld the constitutional validity of an Act amending the Bombay Land Requisition Act, 1948 so also the Bombay Rent, Hotel And Lodging House Rates Control Act, 1947 for short the Land Requisition and the Bombay Rent Act.

7. The Petitioners submit that they visited offices of the Respondent Nos.1 to 4 repeatedly and even after the Supreme Court judgment to make enquiry as to when they would take necessary steps to derequisition and hand over peaceful possession thereof.

8. The Petitioners were informed that requisite steps in terms of the Hon'ble Supreme Court judgment would be taken by the Respondents.

9. The Petitioners waited for considerable time and subsequently addressed a notice through the advocate on 2nd January, 2009 and after recording the above facts once again called upon all Respondents including Respondent No.5 to hand over vacant possession of the said flat. They also filed an application under Right to Information Act, 2005 (for short RTI Act). Copy of the advocate's letter is marked annexure 'A' whereas the copy of the application under RTI is marked annexure 'B'.

10. The Petitioners submit that the administrative officer of the Respondent No.3 by his letter dated 13th May, 2009 furnished some particulars to the Petitioners. It was stated that the said flat has been handed over to Siddharth Digambar Hanchate (Respondent No.5) since 1993. He has been occupying the flat and there is no information of the occupants since 1962.

11. The Petitioners, therefore, filed an appeal under RTI Act and a copy of the memo of the appeal is annexure 'D' to the petition. The appeal was disposed off on 6th August, 2009. There is no further information save and except that one Mr. Shirodkar was occupying flat for some time and after his retirement the Respondent No.5 is occupying the said flat. It is in these circumstances that the present Writ Petition has been filed.

12. Mr. D.H. Mehta learned counsel appearing on behalf of the Petitioners submitted that the Respondent Nos.1 to 4 should have handed over possession of the flat to the Petitioners herein. Their refusal to do so is contrary to law. Mr. Mehta submitted that even after the judgment of the Hon'ble Supreme Court in the case of H.D. Vora (Supra) by a further judgment of the constitution bench of the Hon'ble Supreme Court in the case of Grahak Sanstha Manch V. State of Maharashtra reported in AIR 1994 SC 2319, the law is that continued requsition of the said flat is bad in law. The derequisitioning follows once the judgment in the case of H.D. Vora (Supra) has been upheld by the Hon'ble Supreme Court. Mr. Mehta submits that the purpose of the requisition order may be permanent, however, that order cannot be continued indefinitely or for a period of time longer than that which is, in the facts and circumstances of the particular case, reasonable. The order of requisition in this case dates back to 1962, therefore, it is more than four decades that the flat has been under requisition. That is not permissible by both judgments of the Hon'ble Supreme Court.

13. Mr. Mehta submits that even the subsequent development of the amendments to the Land Requisition Act and the Bombay Rent Act will not alter this legal position. The Respondent Nos.4 and 5 are not entitled to protection. They have to hand over vacant and peaceful possession of the flat once the constitution bench of the Hon'ble Supreme Court has clarified the legal position. Mr. Mehta submits that the provisions of the amended Bombay Rent Act, conferring statutory protection on allottees of requisitioned premises and by a legal fiction putting them on par with statutory tenants does not apply to the cases where requisition as merely been allowed to continue. When there is no allotment in favour of an individual currently in occupation as on the specified date, then, he cannot claim the protection of the amended Rent Act. The requisition must not only be for a public purpose but it also for the named individual. It cannot apply to a post or office. In the present case once the premises were given to government and by government by an allotment order allotted the premises but that allottee has vacated the said flat after retirement from office, then, the present incumbent or occupant namely Respondent No.5 cannot get the statutory protection. In that regard Mr. Mehta has relied upon the judgment of the Hon'ble Supreme Court in the case of Kunal Chaudhari V. Purshottam B. Todi, reported in AIR 1997 SC 2033 : [1997(3) ALL MR 224 (S.C.)]. In the present case there is no protection to Respondent No.5. The Respondent No.5 cannot be said to be governed by the legal provisions as amended. For these reasons he submits that the Writ Petition be allowed. Mr. Mehta submits that merely because the possession has not been taken or has remained with the Respondent No.5 will not confer any right on him. That will also not enable the Respondent Nos. 1 to 4 along with Respondent No.5 to continue in possession. The Writ Petition, therefore, be allowed is the request of Mr. Mehta.

14. Mr. Mehta placed strong reliance upon the judgment of the Hon'ble Supreme Court in the case of H.D. Vora (Supra), Grahak Sanstha (Supra), Kunal Chaudhari, [1997(3) ALL MR 224 (S.C.)] (Supra) and the judgment of the Hon'ble Supreme Court in the case of Maheshchandra T. Gajjar V. State of Maharashtra reported in 2000 (3) Bom C R 202 and Welfare Association A R P Maharashtra V. Ranjit P. Gohil reported in AIR 2003 SC 1266.

15. On the other hand Mr. Ingawale appearing on behalf of Respondent Nos.1 to 4 and Mr. Hegde appearing on behalf of Respondent No.5 submitted that the Writ Petition is not the remedy of the Petitioners to recover possession of the said flat from the Respondent No.5. The Petitioners will have to proceed on the footing that the Respondent No.5 is a protected tenant. There is a landlord tenant relationship created by law as between Petitioners and the Respondent No.5. The Respondent No.5 may not have paid the rent or offered to pay the same but that is irrelevant and immaterial because a relationship of a landlord and tenant having been created it is regulated and governed by the rent control legislation. The remedy to recover possession from a party like Respondent No.5 is to file a suit in the competent Court after terminating the tenancy rights. The present Writ Petition is completely misconceived. The post of Commissioner of Police, Greater Mumbai and that office is entitled to claim requisite protection. They have put the present incumbent Respondent No.5 in possession prior to the amendment to the Bombay Rent Act, 1947 and the Land Requisition Act, 1948. Therefore, the protection of law can legitimately and validly be claimed by them. They are not bound to hand over vacant and peaceful possession as demanded by Petitioners nor can any writ be issued to do so. For these reasons the Writ Petition to be dismissed.

16. These Respondents have placed strong reliance upon an judgment of the Division Bench of this Court in the case of Tata Housing Development Company Ltd. & Ors. V. State of Maharashtra reported in 2006 (1) Bombay C R Pg.674 : [2006(2) ALL MR 574] and Prakash Babu Harmalkar V. State of Maharashtra reported in 2006 (2) Bom C R Pg.54. The learned advocate Shri. Hegde submits that the controversy in present petition is covered by the judgment in the case of Prakash Harmalkar (Supra).

17. With the assistance of the learned advocates appearing for parties we have perused this Writ Petition and all annexures thereto. We have also perused the affidavits filed on record. We have also perused the legal provisions and the judgments of the Hon'ble Supreme Court brought to our notice.

18. In the affidavit in reply filed by the Respondents Nos.1 and 3 they have specifically submitted that in respect of the said flat an order was passed by this Court in Writ Petition No.14 of 1998. That order was passed on 27th July, 1998. That is because the said Writ Petition was heard together with a batch of Writ Petitions namely Writ Petition No.1886 of 1997, in which the issue of constitutional validity of the Bombay Rent Act, Bombay Land Requisition Act and Bombay Government Premises Act as amended was considered and decided. A Division Bench of this Court struck down the Amendment Act which amended these statutes and held that the State of Maharashtra has no legislative competence to enact the same. However, that judgment of the Division Bench was reversed in the case of Welfare Association ARP (Supra). It was held that the State Government was competent to enact the said Act. Though there were several directions issued yet main matter resulted in the disposal of all the Writ Petitions. It is submitted by these Respondents that by virtue of the amendment the government allottees became tenant of the requisitioned premises. The Respondent No.4, Commissioner of Police is, therefore, protected by virtue of these amendments. The amount of compensation of Rs.14,929/- is deposited with the government. Once the Commissioner becomes the tenant of the premises then there is no question of same being derequisitioned or handed over.

19. In the present case, it is common ground that on 28th July, 1998 Writ Petition No.14 of 1998 filed by the Petitioners before us in this Court was allowed. That was following the judgment in Writ Petition No.1886 of 1997 decided on 27th July, 1998. It is also common ground that the said judgment was challenged in the Hon'ble Supreme Court and there was an interim order of the Supreme Court staying the dispossession. Subsequently an affidavit of undertaking was filed by the then Joint Commissioner of Police (Administration Brihanmumbai) that the Government of Maharashtra has requisitioned the premises namely the said flat and by an allotment order the flat has been allotted to police personnel in service as service quarters. That time the Joint Commissioner of Police Tukaram Chaudhari claimed to be an allottee and he undertook to the Hon'ble Supreme Court that in the event the appeal is dismissed the Government will pay monthly compensation.

20. It is common ground that by the judgment of the Hon'ble Supreme Court in the cases of Grahak Sanshta (Supra) & Welfare Association A R P (Supra), it is clear that some categorical and definite directions were issued to the occupants of requisitioned premises and the State Government. The continued requisition of the flats was struck down and the vacant possession of the de-requisitioned flats was to be handed over on or before 31st December, 1994. However, what has transpired thereafter is that another judgment came to be delivered by the Hon'ble Supreme Court in the case of Kunal Chaudhari, [1997(3) ALL MR 224 (S.C.)] (Supra) that dealt with the protection given to government allottees by the amendment to the Bombay Rent Act and the Land Requisition Act. It is thus apparent that though the statutes noted above were exhaustively amended and which were upheld, yet, the application of the Amended provisions to a given case was a vexed issue. The Supreme Court clarified that as under :

The definition of "Government allottee" in Clause (1-A) in Section 5 of the Bombay Rent Act, as already pointed out, comprises two Clauses, viz., (a) and (b) and that the applicant claims to fall under Clause (b) [Admittedly, he does not fall under Clause (a)]. But for falling under Clause (b), he should satisfy the following two requirements :

(1) The requisitioned premises are allotted by the State Government to him for residential purpose and (2) on the date of coming into force of the said Ordinance, the applicant "is allowed by the State Government to remain in occupation or possession of such premises for his...residence". The definition of "Government allottee" in the explanation appended to Sub-section (8) of Section 9 of the Bombay Land Requisition Act is in the same terms. The Ordinance was issued on and commenced on December 7,1996. The question is whether is can be said that on 7th December, 1996 the applicant is a person who "is allowed by the State Government to remain in occupation or possession of the said premises for his residence"? We think not. Pursuant to the judgment of the High Court dated 3rd July, 1996 allowing Writ Petition No. 1881 of 1988, it is pointed out by Sri S. Ganesh, learned Counsel for the first respondent, the Government of Maharashtra has passed two Orders. Under the Order dated 24th July, 1996, the applicant was called upon to vacate the premises and hand over the same to the Government so as to enable it to de-requisition the said premises and deliver possession of the same to the landlord as directed by the High Court. Subsequently, on 17th August, 1996, the Government of Maharashtra made an Order under Section 11(1) of the Bombay Land Requisition Act authorizing the area Sub-Inspector in the office of the Controller of Accommodation to take vacant possession or the said premises from the applicant on or before 30th August, 1996. The area Sub-Inspector was empowered to use such force as may be reasonably necessary for the said purpose. The said Order could not, however, be implemented or executed for the reason that this Court by its Order dated 26th August, 1996 permitted the applicant to remain in occupation of the premises till 26th February 1997. It is obvious that but for the said Order of this Court, the area Sub-Inspector would have evicted the applicant from the said premises. In any event, the authority of the applicant to occupy the premises by virtue of the allotment Order made by the State Government came to an end on 30th August, 1996, if not earlier. It cannot be said that the possession or occupation of the applicant after 30th August, 1996 was one "allowed" by the State Government. It was wholly and exclusively attributable to the Order of this Court dated 26th August, 1996. To repeat, as on 7th December, 1996 (the date of Ordinance) the applicant was not a person who "is allowed by State Government to remain in occupation or possession of such premises for his residence", which means that he does not fall within the definition of "Government allottee" contained in Clause (1-A) in Section 5 of the Bombay Rent Act. He cannot, therefore, take advantage of Section 15-B of the said Act. For the same reason, he cannot also seek to take benefit of Sub-section (8) of the Section 9 of the Bombay Land Requisition Act, 1948.

21. Therefore, as on 7th December, 1996, which is the date of ordinance, a person who is allowed by State Government to remain in occupation of his premises and possession for his residence alone is protected.

22. The legal position with regard to the protection has been summarised in the case of Kamal K. Sahasrabuddhe V. Controller of Accommodation & Ors. Reported in 2008 (1) Bom C R Pg.779 : [2007(6) ALL MR 641] by a Division Bench to which one of us was a party (S.C. Dharmadhikari, J.). The Division Bench held as under :

The appellant before the Supreme Court had applied for possession of the premises by giving effect to the Division Bench decision in his favour but in the light of the pendency of the proceedings before the Supreme Court, this Court refused to entertain his prayer for restoration of possession and that is how the appellant owner went to the Supreme Court. In the case of Gujjar (supra), the Supreme Court considered the relevant statutory provisions including the amendment and ultimately held as under:

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 purpose, 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 1988 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 by providing for the State Government of the Government Allottees becoming deemed tenants of the requisitioned premises. By the Amendment Act, Clause 1-A defining "Government Allottee" was inserted. Another new provision inserted was Section 15-B providing for the State Government or Government allottees to become tenant of premises requisitioned or continued under requisition.

Section 5(1-A) and Section 15-B read as under:

Section 5(1-A) Government allottee:-

(a) in relation to any premises requisitioned or continued under requisition which are allotted by the State Government for any nonresidential purpose to any department or office of the State Government or Central Government or any public sector undertaking or the Corporation owned or controlled fully or partly by the State Government or any cooperative society registered under the Maharashtra Cooperative Societies Act, 1960 or any foreign consulates, 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 15-B - 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 (here-in-after 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 1-A 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 1-A 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 before the 11th June, 1996 shall be deemed to have been let by the landlord to the State Government or, as the case may be, to such Government allottee, or payment of rent and permitted increases equal to the amount of compensation payable in respect of the premises immediately before the said date.

(2) Save as otherwise provided in this Section or any other provision of this Act, nothing in this Section shall effect-

(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 Ramkrishnan Subramanyam v. State of Maharashtra and Ors. W.P. No. 98 of 1997, dt. 30-1-1997, 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 in Judgment decrees 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, 1993.

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 1967) 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 (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 1-A

(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 15-B of Bom. LVII of 1947--in Section 158 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 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 parts 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(1-A) 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(1-A) 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 identical thereto. Certain premises which have been requisitioned or continued under requisition under the said Act have been allotted for nonresidential purpose to many departments 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 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.

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 v. State of Maharashtra has given a final decision on the 27th April, 1994 in the matter of requisitioned premises Grahak Sanstha Manch v. State of Maharashtra MANU/SC/0480/1994 : [1994]3SCR746 , upholding the decision in the H.D. Vora v. State of Maharashtra MANU/SC/0309/1984 : [1984]2SCR693 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, de-requisitioning process in respect of all such premises and applying the ratio of the said Supreme Court judgement, in several other premises, has already been completed by the State Government. There are, however, as aforesaid, nearly 604 residential premises and about 90 nonresidential 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.

6. As many landlords have already approached the High Court seeking requisitioned premises and the possibility of others also approaching the Court for such eviction orders cannot be ruled out, thereby frustrating the very object to 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 effected by any eviction orders passed by the Court on of 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 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 allottees to secure it otherwise. 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 the case, there would be a special class of employees. A class 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 services, 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(1-A) 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 is 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 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.

23. The same view was followed in the case of Sarvagnya Prataprai Trivedi V. The Controller of Accommodation and Anr. Writ Petition No. 5141 of 2007 decided on 22nd January, 2008.

24. Mr. Ingavale and Mr. Hegde both are right in urging that the present occupant Respondent No.5 is not a retired employee. He continues to be in service of the Maharashtra Police. He is in possession of the said flat since 1993. This case is not on par with Kunal Chaudhari, [1997(3) ALL MR 224 (S.C.)] (Supra) because in Kunal Chaudhari's case the Hon'ble Supreme Court found that the premises were allotted to Kunal Chaudhari's mother in the year 1958 by the Government of Maharashtra under the Land Requisition Act. Kunal Chaudhari's mother expired in 1974. After the death of his mother Kunal Chaudhari continued in possession. Said Kunal was not a government servant but allotted the premises, being a homeless person under what is called a suppressed vacancy scheme. Therefore, the judgment and order in the case of Grahak Sanstha (Supra) and Welfare Association A R P (Supra) will apply to the case of said Kunal Chaudhari. More so, when Purshottam Todi, the Respondent before the Supreme Court had filed Writ Petition being Writ Petition No.1881 of 1998 in this Court and which came to be allowed by this Court on 3rd July, 1996. Similarly, in the case of Kamal Sahasrabuddhe, [2007(6) ALL MR 641] (Supra) the Division Bench held that the Kamal's husband Krishnaji was alloted the requisitioned premises as he was in service of State of Maharashtra. He retired in the year 1982. He expired on 20th May, 1997. Since the Petitioner was claiming to be a heir of Krishnaji and paying rent that she claimed to be protected by the Amendment Act. It is in dealing with such contention that the Division Bench made the observations reproduced above.

25. Similarly in the case of Sarvagnya (Supra) what was noted by this Court was that her parents Prataprai & Harbalaben were occupying room in Fort area of Mumbai. The building in which the said room was located collapsed in 1957-58 therefore, the mother of the Petitioner Sarvagnya was alloted two rooms in Mumbai pursuant to requisition order passed by the Controller of Accommodation. That order was passed under the Bombay Land Requisition Act, 1948. Sarvagnya's mother and father expired and therefore Sarvagnya claimed that she had become a tenant in respect of the premises by virtue of the above-referred legal provisions. It is while dealing with that controversy that this Court observed that Sarvagnya cannot be set to be the government allottee. The government allottee was her mother. In such circumstances and when eviction order was passed against Sarvagnya on 13th February, 1996 and which is prior to the cut off date of 7th December, 1996, that the protection of the amendment Act is not available to Sarvagnya.

26. Such a view was taken by another Division Bench of this Court to which one of us (S.C. Dharmadhikari, J) was party in Writ Petition (L.) No.1369 of 2010 Neeta Ramesh Shelar Vs. The Controller of Accommodation & Ors., decided on 17th June, 2010. In that case also what is held is that the government allottee was directed to handover the possession by eviction order dated 1st June, 1996. That she was not physically dispossessed after the eviction order was passed and confirmed does not mean that the benefit of the amendment act is available to her. Mere allowing somebody to remain in possession after an eviction order or positive Act of dispossession of the allottee will not enable the allottee who is in possession to claim protection of the amendment act.

27. In the present case the Petitioner in the memo of the Writ Petition itself has stated that the Respondent No.5 is in possession of the premises since 1993. The Petitioner corresponded with the authorities and obtained information about this Respondent No.5 and he was informed that the Respondent No.5 has been put in possession by the Respondent No.4 because he was serving as Assistant Police Inspector since 1993 at Dharavi Police Station. It has been stated before us that the Respondent No.5 has not retired but continues in government service. If the Respondent No.5 continues in government service and is in possession of the premises prior to the amendment Act being brought into effect then, there is definitely a relationship created between him and the present Petitioners. The Petitioners may not admit that relationship and may term that as merely an internal arrangement between the Respondent Nos.1 to 4 and Respondent No.5 but going by the judgment of this Court in the case of Prakash Harmalkar (Supra), it is apparent that the definition of the word government allottee has two parts and if any premises requisitioned or continued under requisition or allotted by the State Government for a residential purpose to any person and such person on the date of the amendment act coming into force or his legal heir is allowed to remain in occupation or possession for his or such legal heirs residence then, the government allottee becomes a tenant of the landlord and such premises are deemed to be let by the landlord to the State Government or as case may be to such government allottees on payment of rent. Once the amendment act has been upheld by the Hon'ble Supreme Court, then, it has to be given full effect.

28. In the case of Prakash Harmalkar (Supra) what has been noted is that the allotment was made in favour of the Commissioner of Police. It is the Commissioner of Police, therefore, who would get protection and not the individual allottee or officer in that commissionerate Prakash Harmalkar. It is clarified in the affidavit filed before us by the Respondent Nos.1 and 3 that by virtue of the amendment act the Respondent No.4 i.e. Commissioner of Police is protected as deemed tenant of the requisitioned premises. It is the Respondent No.4 who has allowed the Respondent No.5 to remain and to occupy the said flat as member of the Bombay Police force. It is, therefore, Respondent No.4 who will get protection and by virtue of the order made in favour of Respondent No.5 the possession of Respondent No.5 cannot be said to be ex-facie, unlawful and illegal.

29. The Petitioners in this case cannot by means of the present Writ Petition, therefore, claim vacant and peaceful possession of the said flat. They cannot request the writ court to pass an order or direction directing Respondent Nos.1 to 5 to handover vacant and peaceful possession of the said flat to them. The order of derequisitioning the said flat passed in favour of the Petitioner cannot be enforced and executed after the subsequent developments noted above. The Respondent No.4 claims statutory protection and through him the Respondent No.5 claims to be in legal possession. In such circumstances the remedy of the Petitioner would be to terminate the rights claimed by these Respondents and recover possession of the said flat from them in accordance with law. The Writ Petition is not the remedy to claim such a relief as rightly urged by Mr. Ingawale and Mr. Hegde. The Petitioners at best would be entitled to the amount of compensation deposited till date with the government and which the government should handover to the Petitioner within a period of four weeks from the date of the receipt of this order. The Petitioners may accept it without prejudice to their rights and contentions to recover possession of the said flat in accordance with law.

30. We dismiss this Writ Petition with the above clarification by holding that the Petitioner will have to file a substantive suit claiming possession on the basis of title or take recourse to the remedies provided by the Bombay Rent Act, 1947 and now the Maharashtra Rent Control Act, 1999.

31. The Writ Petition is, therefore, dismissed subject to above. There would be no order as to costs.

32. At this stage, Mr. Mehta prays that the respondent nos.4 and 5 may part with the possession or induct any third party in the suit flat. The learned AGP and the Advocate appearing for respondent nos.4 and 5 states that the respondent No.5 is in possession and occupation of the said flat. In these circumstances, we direct that without prejudice to the rights and contentions of the parties, the respondent no.5 shall not part with possession or induct any third party in the suit flat, in any manner for a period of eight weeks from today.

Petition dismissed.