1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 4477 OF 1995 Intercorp, a registered partnership firm having its office at c/o. C.B. Divecha Trust, 13-Darya Building, 3rd floor, 375 Dadabhay Navroji Road Fort, Bombay – 400 001. ...Plaintiff Vs. 1. The State of Maharashtra through Shri Vinay Bansal present Secretary, Industry Energy & Labour Department Mantralaya Bombay 400 032. 2. The Municipal Corporation of Greater Bombay through Shri J.D. Jadhav, the present Municipal Commissioner, having its office at Mahapalika Bhawan, Bombay 400 001. ...Defendants Mr. M.D. Siodia with Ms. D.S. Retiwala for Plaintiff Mr. U.J. Makhija with Mr. R.Y. Sirsikar for Defendant NO.2 2 CORAM : SMT. ROSHAN DALVI, J. Date of Reserving the Judgment: 6th APRIL, 2010 Date of Pronouncing the Judgment: 20th APRIL, 2010 J U D G M E N T : 1. The Plaintiff is the owner of a building Cama House situated at 122-126 Mint Road (Shahid Bhagat Singh Road), Fort, Bombay-400 001, which the Plaintiff purchased under a registered Conveyance dated 28th August 1981 from its Predecessors in title who is one of the Trustees of a Trust called Bai Hirabai Dadiba Saher Trust. The Suit premises is shop No.16 on the ground floor of the said building admeasuring 450 sq. ft. 2. The Defendant No.1 is the successor in title of the Government of Bombay upon creation of the States of Maharashtra and Gujarat in 1960. The Defendant No.2 is the Municipal Corporation to whom the Defendant No.1 has given the said shop for the purpose of running a school. The Defendant No.2 is not running any school or utilising the said shop for any purpose. The Government requisitioned premises of the Plaintiff for a Fair Price Ration Shop and later allowed Defendant No.2 to use the Suit premises for running a School without the consent of the Plaintiff or its Predecessors in title. 3. The Plaintiff contends that the Suit premises requisitioned from the Plaintiff’s Predecessors in title upon it being vacant in 1943 came to be 3 used for the purpose of the Ration Shop by the then Government of Bombay until about 1985, after which the Suit premises was not used by the then Government of Bombay for that purpose. It is the Plaintiff’s case that upon discontinuance of the purpose for which the Suit premises was requisitioned, the Suit premises was to be de-requisitioned and restored to the Plaintiff’s predecessors in title which, despite extensive correspondence in that behalf, the Defendant No.1 failed to do and instead gave it to the Defendant No.2 for running a school. The Plaintiff claims that the action of Defendant No.1 in so giving the requisitioned premises to the Municipal Corporation or any other Department of the Government for any other purpose is an invalid action and consequently, the Defendant No.1 must de- requisition the premises and/or restore its possession to the Plaintiff. 4. The Defendant No.1, the State of Maharashtra has not defended the Suit. They have not lead any evidence. They have not appeared in Court for arguments. Even in the correspondence prior to the Suit they contend that since the premises have been given to the Defendant No.2 the Plaintiff shall have to either settle with Defendant No.2 or sue Defendant No.2 for recovery of possession of the Suit premises. 5. In the correspondence Defendant No.1 claims that they were the tenants of the Plaintiff and have sub-tenanted the premises to Defendant No.2, a concept completely de hors the law of requisition. The Defendant No.1 have called upon the Plaintiff to consent to receive rents and compensation as fixed by the Defendant No.1 in their circulars issued from time to time for requisitioned premises which the Plaintiff has refused to do as the 4 Plaintiff does not accept that the Suit premises can be given by Defendant No.1 to Defendant No.2 for any purpose without its consent after it was requisitioned and after the purpose for which it was requisitioned came to be discontinued. 6. It is the case of the Defendant No.2 that the Plaintiff cannot claim possession of the Suit premises or mesne profits, compensation or damages from the Defendant No.2 and that it is only Defendant No.1 who can evict Defendant No.2 from the Suit premises under Section 8 of the Bombay Land Requisition Act 1948 ( the Act). 7. The Defendant No.2 claims that this Court has no jurisdiction in view of the express bar to sue under Section 8(f) of the Act for any action under Section 8(c) thereof. In view of the pleadings between the parties my sister Judge Mrs. K.K. Baam, as she then was on 24th July 2002 has raised the following issues, which are answered as follows:- ISSUES FINDINGS 1. Does the Plaintiff prove that this Hon’ble Yes Court has jurisdiction to try and entertain the Suit? 2. Whether the Plaintiff proves that the letter dated Yes 8.3.1995 is a statutory notice under Section 527 of M.M.C. Act.? 3. Whether the Plaintiff proves that he is the owner Yes of the Suit structure ? 4. Does the Plaintiff prove that the Defendant No.2 Yes 5 are trespassers in the Suit premises and are liable to quit and hand over vacant possession of the Suit premises to the Plaintiff ? 5. Does the Plaintiff prove that they are entitled to Not pressed and mesne profits/compensation / damages as per hence not particulars of claim at Exhibit “Z” to the plaint answered. item II) and if not what sum? 6. Do the Defendant No.2 prove that they have No any right, title and interest to remain in the Suit premises ? 7. What orders and reliefs ? As per final order 10.The fact of requisition for the purpose of Fair Price Ration Shop in 1943 by the then Government of Bombay is admitted. The correspondence that ensued between the parties upon such requisition is also admitted and/or proved by the Plaintiff’s witness who has been cross examined only by the Defendant No.2. Defendant No.1 who are the successors of the Government of Bombay who requisitioned the Suit premises have not cross examined the Plaintiff’s witness. They have not been represented in the Suit at all. 11. The oral evidence of the constituted attorney of the Plaintiff who is an officer of the partnership Firm of the Plaintiff at the time of the hearing of the Suit has been recorded. The constituted attorney can give evidence on behalf of the Firm only with regard to the documents as are available to him which he can produce. He cannot lead evidence with regard to the truth of the contents of those documents except in the matters personally 6 known to him. Consequently, the evidence in this case would have to be considered only from the documentary evidence led by the parties essentially contained in their documents of title, which would have to be proved by the Plaintiff and the correspondence of the then Government of Bombay with the Plaintiff followed by the correspondence between the Plaintiff and Defendant No.1 the entire of which correspondence is admitted. 12.The aforesaid issues in the Suit would have to be determined taking into account the aforesaid admitted/proved correspondence. 13.The Suit is an action upon trespass of a premises requisitioned by the Government of Bombay in 1943 and which has been held over by the Defendants. The Plaintiffs have, therefore, prayed for a declaration inter alia that the defendants acted contrary to law, violated their proprietary rights and that the Suit premises was in use and occupation of the Defendant No.2 as a trespasser, the possession of which must be handed over to the Plaintiff. The Plaintiff has prayed for possession as well as the compensation, damages and/or mesne profits in respect of the Suit premises. Upon amendment of the plaint the Plaintiff has further prayed for a decree to de-requisition the Suit premises and consequently to handover possession to the Plaintiff. 14.The Plaintiff has however, given up its claim to compensation, damages and mesne profits. 7 15.Issue No.1 :-The Suit premises belonging initially to the Predecessors in title of the Plaintiff and later to the Plaintiff has been requisitioned since 1943 for the purpose of a Fair Price Ration Shop or a Government Grain Shop. The Suit premises was utilised for that purpose until about 1955. It has not been de-requisitioned or released by Defendant No.1 or its predecessor under Section 9 of the Bombay Land Requisition Act 1948 (the Act). Under Section 9(1A)(a) the Defendant No.1 or its Predecessor the then Government of Bombay was required to release the premises from requisition at least after 17 years from the commencement of the requisition. Accordingly it had to be requisitioned in or before 1961. The correspondence between the parties, as shall be referred to presently, shows that the Plaintiff’s Predecessors in title as, since the year 1987 requested that the Suit premises be de-requisitioned because it was not used for the purpose for which it was requisitioned. 16.The Suit premises has been allowed to be used admittedly for another purpose viz., for running a school by the Defendant No.2. It is shown to be used actually for storage of pesticides, chemicals and the tails of dead rats by the Malaria Department of the Defendant No.2. The correspondence between the parties, as shall be presently referred to, shows that the Plaintiff’s Predecessors in title and thereafter the Plaintiff took exception to the use of the requisitioned Suit premises for the purpose other than for which it was requisitioned to be used under the agreement between the Plaintiff’s Predecessor in title and the Predecessor of Defendant No.1 for 8 requisitioning the premises which was then lying vacant for a number of years. 17.The correspondence, as shall be presently referred to, also shows that the Defendant No.1 claimed that the Suit premises was tenanted to the Defendant No.1 by the Plaintiff’s Predecessor in title (a contention which is not proved) and was sub-tenanted to the Defendant No.2. When the Plaintiffs insisted upon Defendant No.1 restoring the possession of the Suit premises to them, Defendant No.1 by its letters dated 14th May 1991 and 11th November 1992, as shall be presently referred, to stated that the Plaintiff must take recourse to law or settle the dispute with the Defendant No.2. 18.The bar of jurisdiction against Suits or proceedings in respect of eviction of any person from any requisitioned premises is set out in Section 8(F) of the Bombay Land Requisition Act, 1948 (the Act). 19.The contention relating to the bar of jurisdiction can be taken by a party who has to submit himself to another jurisdiction specifically provided in the Act. The Defendant No.1 has not contested the Suit. The Defendant No.1 has not led any evidence or made any arguments. The Defendant No. 1 was required to release from requisition the Suit premises under Section 9 of the Act. Upon such release Defendant No.1 was required to restore the land in the same condition in which it was on the date the Government was put in possession thereof and to pay compensation for deterioration of the premises. The Defendant No.1 has failed to do either of these despite 9 requests as well as notice from the Plaintiff. 20.The bar of jurisdiction would apply when the requisitioned premises is simplicitor required to be released. This proceeds on a pre-condition that the requisitioned premises is used for the purpose for which it was meant. The Defendant No.1 claimed tenancy instead. The Defendant No.1 claimed to have created a sub-tenancy also. That case has been refuted by the Plaintiff. The Plaintiff claims that the Defendant No.2, who were wrongfully allowed to use the Suit premises for a school and later for storage purpose, was illegally allowed by the Defendant No.1 to do so for the purpose which was not the purpose for which the Suit premises was requisitioned. Consequently, the Plaintiff has claimed that the Defendant No.2 are trespassers in the Suit premises. The action is, therefore, in tort at common law. The reliefs asked for by the Plaintiff are not, strictly speaking for de-requisitioning the requisitioned premises simplicitor. 21.The Plaintiff has prayed for a declaration that the Defendants have acted contrary to the law and violated their proprietary rights by wrongful use and occupation of the Suit premises by the Defendant No.2 without locus, right, title or interest. Therefore, the Plaintiff has prayed for declaration that the Defendant No.2 is a trespasser and must quit and handover possession of the Suit premises to the Plaintiff. 22.The Plaintiff has amended the plaint to add further prayers for de- requisitioning the Suit premises and for obtaining vacant possession thereof. 10 23.The Plaintiff’s action is, therefore in common law, essentially against a trespasser. 24.The requisitioned premises has unlawfully remained out of the possession of the Plaintiff for as long as 67 years. The reliefs prayed for by the Plaintiff though of a continuing cause of action for each day’s wrongful use and occupation of the Suit premises, is not essentially under the Act though the premises was requisitioned under the Act. Consequently, the Civil Court’s jurisdiction in tort for an action in common law is not barred since the Suit premises came to be trespassed upon, after it was requisitioned by the then Government of Bombay and continued to be used wrongfully by Defendant No.2. Hence, Issue No.1 is answered in the Negative. 25.Issue No.2 :- The receipt of the statutory notice is admitted by Defendant No.2. The statutory notice issued by the Plaintiff has been proved and marked Exhibit-28 in evidence. The Plaintiff has called upon the Defendant No.1 to take charge of the premises from the Defendant No.2 and Defendant No.2 to vacate the premises. The notice specifies that it is issued under Section 80 of the C.P.C and Section 527 of the B.M.C. Act. Hence, issue No.2 is answered in Affirmative. 26.Issue No.3 :- The Plaintiff has tendered and proved the registered Indenture dated 28th August 1981 which is marked Exhibit-P4 in evidence. Pursuant to the conveyance the Plaintiff has become the owner inter alia of 11 the Suit premises. Hence, issue No.3 is answered in Affirmative. 27.Issue No.4:- The requisition of the Suit premises is admitted. a) Under a letter dated 10th January 1943 Exhibit- D to the plaint in evidence the Manager, Government Fair Price Ration Shop, Bombay on behalf of the then Government of Bombay issued its letter to the Plaintiff’s Predecessor in title who was one of the Trustees of the aforesaid Trust confirming the conversation between them that the vacant shop in Cama House, Fort Bombay was agreed to be let to the Government as a Fair Price Shop. The Plaintiff’s Predecessors in title were to arrange to deliver possession of the vacant shop on the forthcoming Monday morning at 12 noon. The Suit shop admittedly came to be requisitioned under the Act from 1943. The Suit shop continued to be used as a Ration Shop, which was the purpose of requisition until 1955. b) The Predecessor in title of the Plaintiff put on record that the Suit premises were vacant from 1st August 1937 to 31st March 1942 and subsequently the Government Grain Shop Department took it over from 16th January 1943 under the letter dated 22nd October 1955, marked Exhibit-P15 in evidence. 12 It is the document produced by the Plaintiff, which is 40 years old. It carries a presumption as to the correctness of its contents. It shows that the premises were vacant and consequently liable for being requisitioned in 1943. c) The Execution Officer of Defendant No.2 wrote to the Plaintiff’s Predecessor in title on 16th May 1955 under the letter marked Exhibit-P12 in evidence that the premises were rented by the Government from her and was transferred to the Defendant No.2 as Sub-tenants of the Government. They were used for housing a Municipal School. He asked for consent of the Predecessor in title of the Plaintiff to the transfer of tenancy. The Plaintiff has not consented to any such transfer. The premises are not shown to have been rented to the Government. The premises were vacant and were accordingly requisitioned. Neither of the Defendants has shown any tenancy created by the Plaintiff’s Predecessor in title in favour of the Government. d) It appears that the Government by its resolution dated 14th June 1984 marked Exhibit-P 19 in evidence showed various requisitioned premises of various landlords in the names of the respective occupants along with the rent payable in respect of the premises. The Suit premises was shown as “previously occupied by Ex-Government Grain Shop” (Ex-GGS) which was then shown in occupation of the Education Officer of the Defendant No.2. 13 The Resolution of the Government is passed by the Industries Energy and Labour Department and signed by the Assistant Secretary to the Government denoting that all the premises shown in the Resolution were requisitioned by the Government. The Resolution shows the change in the name of the occupant from “Ex-GGS” to Defendant No.2. This change of occupancy is not with the consent of the Plaintiff. e) The Under Secretary to the Government of Maharashtra, Industries and Labour Department, Mantralaya, Mumbai by his letter dated 25th July 1986 marked Exhibit-P16 in evidence addressed to the Plaintiff’s Predecessor in title stated that the premises were transferred to the Food and Civil Supplies Department and requested the Plaintiff to collect rent of the premises as and when deposited by the occupants to which the premises are rented out by the Government from the Food and Civil Supplies Department. This is despite the fact that the requisitioned premises could not be transferred to another Department or be rented out by the Government to other occupants. f) The Plaintiff by the letter of its Manager dated 12th March 1987 marked Exhibit-P20 in the evidence put on record that they were 14 receiving rent all along from the Industries Energy and Labour Department and that the Suit premises were originally requisitioned for a Government Grain Shop and were allowed to be used by the Defendant No.2 without its knowledge and consent. The Plaintiff also put on record that though it was shown to be in occupation of the Education Officer, it was used by the Malaria Department of the B.M.C for storing pesticides, chemicals etc. including, storing of tails of dead rats, which was a health hazard. The Plaintiff, therefore, requested the Defendant No.1 to de-requisition the Suit premises and instruct Defendant No.2 to vacate the premises and restore it to the Plaintiff. g) On 19th March 1990 the Defendant No.1 claimed that the premises were taken on rental basis by the Government of Maharashtra and have been given on rental basis to the Education Officer of Defendant No.2 as a sub-tenant, an aspect not proved by the Defendants. h) The Plaintiff by the letter of its Manager dated 5th April 1990 stated that it was not agreeable to the suggestion of the Defendant No.1 that the Defendant No.2 was its sub-tenant. The Plaintiff called for arrears of compensation of Rs.17,162.04 from the Government. i) The Defendant No.1 by its letter dated 14th May 1991 marked Exhibit-P23 in evidence put on record that the Suit premises 15 taken by the Government was Shop No.16 on rental basis and had been given to the Education Officer of Defendant No.2 as sub- tenant and if the Plaintiff wanted its possession it may “go to Court for result”. The Defendant No.1, therefore, failed to de-requisition the premises as called upon by the Plaintiff by its letter dated 12th March 1987 and restore it after getting it vacated, but claimed to have created a sub-tenancy. j) The Plaintiff by its Manager’s letter dated 21st October 1992 marked Exhibit-P25 in evidence and addressed to the Defendant No.1 gave notice that premises requisitioned by the Government were no longer required and used for the purpose for which they were requisitioned in 1943 and called upon the Government to surrender the premises. The Plaintiff contended that the Defendant No.1 cannot indefinitely keep the premises requisitioned by them when the purpose for which the premises requisitioned did not exist and when the Government allowed it to be used for objectionable purpose such as collecting tails of dead rats, storing insecticides and chemicals etc., instead of running the Government Fair Price Ration Shop for which it was requisitioned. The Plaintiff also claimed arrears of compensation of Rs. 30,545.34. k) The Defendant No.1 by the letter of its Desk Officer of the 16 Industry Energy and Labour Department dated 11th November 1992 marked Exhibit-P 26 in evidence called upon the Plaintiff to compromise with the occupants and state that the Government “will not interfere with owner and tenant”. The letter also showed that the Government had “stopped to collect and distribute the rent” of the Suit premises vide its letter dated 14th May 1991. Hence the Defendant No.1 rather than surrender and de- requisition the Suit premises and restore it to the Plaintiff, washed its hands off it. The Plaintiff filed Writ Petition No.2070/1994 on 29th July 1994 which came to be withdrawn on 19th September 1994 to file a Suit on title, which is this Suit. 28.The Plaintiff gave a statutory notice to both the Defendants under Section 80(2) of the C.P.C. And Section 527 of the Bombay Municipal Corporation Act 1988 respectively calling upon the Defendant No.1 to take charge of the Suit premises from the Defendant No.2 which was inducted in the Suit premises without the Plaintiff’s consent and to handover the same to the Plaintiff, and to pay Rs.50 lakhs as damages. The Plaintiff called upon the Defendant No.2 to handover vacant possession to the Plaintiff and pay mesne profits of Rs.30,000/- per month. 29.The aforesaid correspondence shows that the premises were requisitioned in January 1943 for a Government Fair Price Ration Shop which is called 17 Ex-Government Grain Shop (Ex-GGS). The Defendant No.1 has admittedly not used the Suit premises as a Fair Price Ration Shop continuously. That usage is ceased in 1955. The aforesaid correspondence shows that the Industries and Labour Department transferred it to the Food and Civil Supplies Department in 1986. The Government Resolution dated 14th June 1984 shows that the occupant of the premises was Education Officer of the Defendant No.2. The Defendant No.1 has not shown the consent of the Plaintiff obtained for using the requisitioned premises for any purpose by Defendant No.2. Defendant No.2 claims that it is using the Suit premises for running a school. The Defendant No.2 has not lead any evidence that the Suit premises is until now run as a school. The Plaintiff’s letters that it is used for storing pesticides, chemicals as also the tails of dead rats has not been refuted by the Defendants. 30.Mr. Siodia on behalf of the Plaintiff drew my attention to the Division Bench judgment of this Court in the case of State of Maharashtra Vs. Ibrahim Ismailji Nagree & Ors. 1979 Mh. L.J. 486 in which it has been held that the requisitioned premises can be used only for the purpose for which it was requisitioned and hence each requisition order must relate to a specific purpose and utilisation of the premises must lead to that purpose and none else. In this case the letter of the Government dated 10th January 1943 shows that it was requisitioned to run a Ration Shop. The Predecessor in title of the Plaintiff was called upon to deliver possession of the vacant shop. The Government undertook to regulate the crowd and make them stand in orderly queues. It is an admitted fact that the Suit premises was requisitioned as a Fair Price Ration Shop or a Government 18 Grain Shop. The fact that both the Defendants claim that it is not used for that purpose any longer, shows that the purpose for which it is used, which other than the purpose for which it was