1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.1369 OF 2010 Neeta Ramesh Shelar ... Petitioner Versus The Controller of Accommodation, Mumbai and others. ... Respondents Mr. Rajeev Matkar for the petitioner. Mr. Milind More, Assistant Government Pleader for State. CORAM : J.N. PATEL, ACTING, C.J. & S.C. DHARMADHIKARI, J. DATED : 17TH JUNE, 2010 P.C. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 8th June, 2010 passed by the Controller of Accommodation, an Authority exercising powers under the Bombay Land Requisition Act, 1948. 2. The Controller of Accommodation by the subject order has directed the petitioner to hand over vacant and peaceful possession of the Requisitioned premises Flat No.4, Laxmi Niwas (Shakti Niwas), Sir Bhalchandra Road, Hindu Colony, Dadar, Mumbai- 400014. (Hereinafter 2 referred to as the `said premises') or else the Controller has stated that the petitioner would be forcibly dispossessed on 17th June, 2010. Looking into the nature of the matter and the urgency made out, with the consent of parties, we have taken up this matter for admission, out of turn. 3. The stand of the Controller is that the petitioner who is a Government allottee had already been directed to hand over possession by Eviction order dated 1st June, 1996. The petitioner is not protected under the provisions of the Maharashtra Act No.14 of 1998. Therefore, the petitioner was directed to hand over possession within a period of 30 days by a letter dated 17th May, 2010. The petitioner has subsequently requested the Government not to disposess her. She contended that she is a deemed tenant on the basis of Maharashtra Amendment Act No. 16/1997. She reiterated the stand taken in her letter dated 21st May, 2010 in the present petition as well. 4. Mr. Matkar, learned counsel appearing for the petitioner submitted that the petitioner was allotted the said premises by an Allotment Order dated 27th December, 1979. The petitioner joined the services of the respondents in the year 1965 and she was transferred to 3 Mumbai after her marriage in 1973. She joined as Junior Clerk in the officer of the Chief Auditor, Local Fund Accounts, Mumbai. She was promoted as Audit Officer in the year 2004 and she retired from Government service in the year 2005 on superannuation. She stated that the allotment of the subject premises has been made in her favour on 27th December, 1979. The compensation was fixed at Rs.42.84 ps. 5. The petitioner does not dispute that by notice dated 18th October, 1995, respondent No.3 called upon the petitioner to show cause why the requisition order in respect of the premises should not be discontinued and why steps for eviction should not be taken under section 8(c) of the Bombay Land Requisition Act, 1948. This letter was replied by the petitioner on 21st October, 1995. The petitioner was, therefore, called upon to appear and show cause before the Appropriate Authority. The petitioner's contention is that issuance of such notice is not enough but the entire procedure contemplated by the Act should have been followed. 6. Be that as it may, on 23rd May, 1996, respondent No.3 directed the petitioner to vacate the premises by exercising his powers under section 8(c)(1) of the said Act. She preferred an Appeal before 4 the competent authority. She submitted that during the pendency of the proceedings, the Bombay Land Requisition Act came to be amended so as to confer status of Deemed Tenancy on the allottees of the requisition premises. She relies upon Maharashtra Act Nos.16/1997 and 14/1998. The petitioner then submits that the Amendment Act was struck down by a Division Bench of this court but the matter was carried to Supreme Court by the State and an undertaking was given by the allottees of the requisitioned premises, including the petitioner, that if the State looses the case, they shall pay monthly compensation as may be determined by the Hon'ble Supreme Court. In pursuance of the order of the Supreme Court, she addressed a letter to the authority forwarding her affidavit of undertaking and ultimately, the Supreme Court upheld the Constitutional validity of the Amendment Act. She submits that in such circumstances, the petitioner could not have been called upon to hand over vacant and peaceful possession of the premises by letter dated 17th May, 2010 and further, she cannot be forcibly vacated therefrom in pursuance of the impugned order. In other words, she is fully protected by the aforementioned Maharashtra Acts and is thus a tenant of the landlord in respect of the said premises. 5 7. We have heard Mr. Matkar, the learned counsel appearing on behalf of the petitioner and Mr. More, the learned AGP appearing for the respondent-State at some length. With their assistance, we have perused the petition and annexures thereto including the order under challenge. We have also been taken through the Amendment Acts and relevant statutory provisions. We have also perused the decisions relied upon. 8. The learned AGP appearing on behalf of the State invited our attention to the order dated 22nd January, 2008 in Writ Petition No. 5141 of 2007 (Sarvagnya Prataprai Trivedi v. The Controller of Accommodation and anr.) passed by one of us (S.C. Dharmadhikari, J.) and submits that this court has dealt with identical controversy. The said judgment follows a line of decisions rendered by Division Benches of this court wherein benefit of the Amendment Act was denied to those persons who have merely continued in possession without any specific order in that behalf and those against whom Eviction order has already been passed under the unamended provisions and consequently, taking into account the cut off date (i.e. 7th December, 1996), the benefit of the Amendment Act was held to be unavailable to them. Mr. More submits that this decision squarely answers the present controversy. 6 9. In the decision that is brought to our notice by Mr. More, the petitioner was an allottee of requisitioned premises. The premises were requisitioned and handed over to the mother of the petitioner in the said petition and upon the death of the mother, petitioner in the said premises continued in possession. It was her case that she was residing with her father for nearly 50 years. The said petitioner was also called upon to vacate and she questioned the jurisdiction of the Controller to do so by relying upon the amendment to the Bombay Rent Act, 1947 and Maharashtra Rent Control Act, 1999 so also the Requisition Act. The petitioner contended that on the death of her mother and father, she has continued in possession and she would, therefore, be protected by the amended Act. 10. The State in that decision also placed reliance upon the factual position and contended that an order of eviction was already passed against the petitioner therein and which was accepted. This eviction order is prior to 7th December, 1996 and, therefore, allottee is not protected by the Amendments. 7 11. It is necessary to briefly note the background in which the decision in the case of Sarvagnya Prataprai Trivedi v. The Controller of Accommodation and another was rendered by this court. In Rasheed Maskati v. State of Maharashtra, reported in 1998(2) Mh.L.J. page 188, a Division Bench of this court was considering the issue of applicability of the Ordinance issued by the State of Maharashtra on 7th December, 1996 amending the provisions of Bombay Rent Act and Bombay Land Requisition Act, so also the Bombay Government Premises (Eviction) Act for protecting certain persons. A contention was raised before the Division Bench that the respondent No.3 in that case had become a statutory tenant of the owner/landlords/petitioner. Negativing that contention, it was held that the Ordnance is inapplicable to the third respondent in that case because the allottee therein was not allowed by the State Government to remaining in possession or occupation of the premises. There was an order of eviction passed by the Competent Authority against which even an appeal was dismissed. Therefore, when there is a direction to vacate the premises by a particular date, then, the possession cannot be said to be lawful. The order directing the person in possession to vacate the premises is a clear intention not to permit him to continue in the same. 8 12. In another decision rendered by a Division Bench of this court consisting of then Hon''ble Chief Justice Swatanter Kumar and S.C. Dharmadhikari, J. in Writ Petition No.467 of 2007 decided on 25th June/16th August, 2007 (Kamal K. Sahasrabuddhe vs Controller of Accommodation and other) reported in 2008 (1) Bombay Cases Reporter, page 779 following the Supreme Court decision in the case of M.T. Gujjar v. State of Maharashtra, (Civil Application No.2026 of 2000) decided on 9th March, 2000, it was held that the amendments do not protect those persons against whom orders of eviction have already been passed. Mere inaction or delay on the part of the Government to physically dispossess a person does not mean that the protection under Rent Control Act can be claimed. Once an order of eviction has been made and that has become final prior to 7th December, 1996, then, the protection is not available. Such a view was also taken by a Division Bench of this court in the case of Ghanshyam Bhanushankar Trivedi v. Competent Authority (Writ Petition No.1342 of 1996). The unreported judgments of this court in Writ Petition Nos. 2350 of 1990 and 2351 of 2990 decided on 27th September, 2005 and unreported judgment in Writ Petition No.1994 of 1991 have all been noticed in another judgment and order relied upon by the learned AGP, before us. 9 13. In the case of Rasheed Kaskati (supra) a review petition No. 3 of 1998 was moved by the original respondent No.3. That review petition was also decided on 7th September, 2007 by a Division Bench consisting of the then Hon'ble Chief Justice Swatanter Kumar and Justice S.C. Dharmadhikari (Review Petition No.3 of 1998 in Writ Petition No.95 of 1990). The review petition was dismissed by following the decision of the Supreme Court in Gujjar's case. 14. Thus, it would be useful to notice the relevant statutory provisions and their interpretation by the Hon'ble Supreme Court in the authoritative pronouncement in Gujjar's case (supra). In Gujjar's case, the third respondent before the Supreme Court was Government employee. He retired from service on 30th September, 1993. He was allotted premises by a requisition order dated 17th April, 1958. The requisition order was set aside but the third respondent before the Supreme Court continued in possession. 15. It is in the light of that factual position that the appellant before the Supreme Court filed a writ petition in this court praying that the premises cannot be termed as requisitioned premises and he as owner should be put in possession thereof. A Division Bench of this 10 court quashed and set aside the requisition order. This part of the order of the Division Bench became final as nobody challenged it in the higher court. 16. In the meanwhile, Special Leave Petition No.15788 of 1998 was filed by the State of Maharashtra, on the basis of that decision of the Hon'ble Supreme Court in the case of Grahak Sanstha Manch and others v. State of Maharashtra and others, reported in AIR 1994 SC, page 2319 led to Maharashtra Act No.16 of 1997 being enacted. That amended the Bombay Rent Act, the Bombay Land Requisition Act and the Bombay Government Premises (Eviction) Act with effect from 7th December, 1996. This amendment was declared unconstitutional by a Division Bench of this court on 27th July, 1998. The State of Maharashtra preferred the Special Leave Petition therefrom which was admitted and interim order came to be passed by the Supreme Court. The owner in Gujjar's case had to approach the Supreme Court for possession of the premises because despite the requisition order being set aside by a Division Bench of this court, that order was not implemented by the authorities on account of pendency of the SLP of the State Government. He, therefore, prayed before the Supreme Court that the possession should be restored to him as the requisition order was held to be bad-in- 11 law. It is in this context that the Supreme Court rendered its decision in Gujjar's case. 17. It would be necessary to reproduce the decision in Gujjar's case as that would clear the matter completely. "In this appeal, the challenge to the impugned judgement 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 Gove4rnment 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 provisions 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:- 12 "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 non-residential 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 co-operative society registered under the Maharashtra Co-operative 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 Governmnet 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 consuloate 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 premi9ses for his or such legal heir's own residence, means such person or loegal 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 13 Bombay Rents, Hotel and Lodging k 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 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 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 this 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 14 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 Vs. State of Maharashtra & Ors.), a Division Bench of Bombay High Court in terms of its judgement 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 alloted 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. 15 (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 provi8sion in judgement 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 (Mahar4ashtra 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; 16 (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 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; 17 (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 parties 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 18 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