WP/ 2442/10 1 SSK/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2442 OF 2010 Smt. Abhilasha Anil Kavale .....Petitioner Versus The State of Maharashtra & Ors. ....Respondents. WITH WRIT PETITION NO. 2443 OF 2010 Dhondiba Mahadeo Jadhav .....Petitioner Versus The State of Maharashtra & Ors. ....Respondents. Mr. V. Y. Sanglikar, Advocate for the petitioners. Mr. Vijay Patil, GP. CORAM : SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 7th OCTOBER, 2010. P.C. : (Per: Ranjit More, J.) Since the issue involved in both the above writ petitions is common, the petitions are being disposed of by a common order. 2. Both the writ petitions arise out of the proceedings under Section 5 of the Bombay Government Premises (Eviction) Act, 1955 ( for short “the Eviction Act). The husband of the petitioner in Writ Petition No.2442 of 2010 and petitioner in Writ Petition No. 2443 of 2010 were government servants. The husband of the petitioner in Writ Petition No. 2442 of 2010 and the petitioner in Writ Petition No. 2443 of 2010 WP/ 2442/10 2 SSK/ were allotted Flat No.B/005 and Flat No.A/702 ( in short “the suit premises”) at Blue Bell, “Hiranandani Garden”, Powai, Mumbai 400 076 w.e.f. 31st December, 1994 and 24th December, 1995. The husband of the petitioner in Writ Petition No. 2442 of 2010 died on 1st February, 2007 before retirement from the government service and the petitioner in Writ Petition No.2443 of 2010 is admittedly retired. 3. Since the petitioners failed to vacate the suit premises, the Competent Authority issued notice under the Eviction Act, calling upon the petitioners to show cause why they should not be evicted from the suit premises. The petitioners submitted their say. The Competent Authority, thereafter, by order dated 1st August, 2008 and 31st January, 2009 respectively, ordered the petitioners’ eviction. The petitioners in Writ Petition Nos.2442 of 2010 and 2443 of 2010 were further directed to pay carpet rate at Rs.25/- per sq. feet per month from 1st May, 2008 and 1st June, 2008 respectively, till they vacate the suit premises. The petitioners, thereafter, approached the City Civil Court at Bombay by filing Miscellaneous Appeal Nos. 191 of 2008 and 14 of 2008 respectively. Both the appeals came to be partly allowed. The learned City Civil Judge did not disturb the eviction orders. However, by separate orders, the quantum of damages ordered by the Competent Authority came to be reduced to Rs.10/- p.m. per sq. feet. These orders are challenged by filing separate writ petitions. WP/ 2442/10 3 SSK/ 4. The main contention of the petitioners is that the suit premises which came to be allotted to them as government servants are requisitioned premises, and therefore, they have become deemed tenants under the provisions of Section 15-B of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which inter-alia provided that all government allottees occupying the requisitioned premises on 11th June, 1996 became “deemed tenants” of the landlords. Mr. Sanglikar, learned counsel for the petitioners relied upon the letters of the Public Work Department annexed to the writ petitions to show that the suit premises are requisitioned premises. He submitted that the Respondent/Government except filing an application has not produced iota of evidence before the Competent Authority to show that the suit premises are not requisitioned premises. He also submitted that payment of the electricity bills and water taxes are being paid by M/s. Lake View Developers-the owners of the Blue Bell building. In sum and substance, it is the contention of Mr. Sanglikar that the petitioners by virtue of Section 15-B of the the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 have become deemed tenants and therefore, they cannot be evicted. 5. Mr. Vijay Patil, learned GP appearing on behalf of respondent nos.1 & 2 on the contrary contested the petitions by supporting the orders impugned. He further contended that the Government purchased 72 flats including the suit premises under the provisions of Urban Land (Ceiling & Regulation Act), 1976 in pursuance of an agreement dated WP/ 2442/10 4 SSK/ 19th November, 1986. He specifically contended that the suit premises are owned by the State Government and they are not requisitioned premises, and therefore, the petitioners cannot claim deemed tenancy in respect of the suit premises. He submitted that the petitioners wants to take advantage of the word “Adhigruhit” used in some of the letters by the Public Works Department which are annexed to the petitions. He further submits that the word “Adhigruhit” appears to have been mentioned as a typographical mistake and the petitioners cannot take advantage of the same. Mr. Patil, learned GP submitted that in written statement filed by the petitioners to the eviction proceedings before the Competent Authority, the petitioners have admitted that the suit premises are acquired under the Urban land (Ceiling and Regulation) Act, 1976. He also submitted that the petitioner in Writ Petition No. 2443 of 2010 had earlier filed a writ petition being Writ Petition no.491 of 2008 for relief in respect of the suit premises, in which, he has admitted that the suit premises are acquired under the Urban Land (Ceiling and Regulation) Act, 1976. In the circumstances, he submitted that the petitions are devoid of substance. 6. Having heard learned counsel and having gone through the compilation of writ petitions including annexures thereto and affidavit in reply filed by the respondents, we find no merit in the writ petitions. There is no dispute that the government allottees occupying the requisitioned premises as on 11th June, 1996, by virtue of amended section 15-B of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 became WP/ 2442/10 5 SSK/ deemed tenants of the landlords. However, the question which deserves consideration is whether the suit premises/suit flats are requisitioned premises or same are owned by the government. 7. The Government formulated a scheme known as Powai Area Development Scheme for development of lands situated at Powai and Tirandaz, Taluka – Kurla under the provisions of Bombay Metropolitan Region Development Authority Act, 1974 and the said land was sought to be acquired under section 32 of the said Act. The owners of the said land made representation to the State Government for proposed development of the lands by themselves out of their own resources. The Bombay Metropolitan Region Development Authority thereafter, agreed to dispose of the lands to the landlords on certain terms and conditions. The agreement was executed on 19th November, 1986 between the State Government-Bombay Metropolitan Region Development Authority and landlords, in regard to the huge parcels of lands in Villages-Powai and Tirandaz, Taluka-Kurla. Copy of the agreement is annexed at Exhibit “1” of the affidavit-in-reply filed by Hemant Pralhad Sawant, Sub-Divisional Engineer, Kurla P.W.D., Sub-Division, Mumbai. In pursuance of the said agreement, Blue Bell building was constructed by M/s.Lake View Developers on the portion of City Survey Nos.4 to 12 and 13 Part, 14 Part, 15 Part, 16 Part, 17 Part, 18 Part, 19 Part and 25 Part.. Clause 8 (ii) of the said agreement reads as under : “ The landholders shall sell to the Authority/State WP/ 2442/10 6 SSK/ Government out of flats, apartments, tenements, houses or units to be erected by them on the land agreed to be demised to them and described in the Third Schedule hereunder written flats, apartments, tenements, houses or units equivalent to 15% of the Floor Space Index consumed by the landholders in the erection or construction of the buildings of such flats, apartments, tenements, units, premises or houses. 8. The Government, thereafter, on 12th February, 1997 also issued notification under section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1976 thereby exempting the above land from the provisions of the said Act. Copy of the same is annexed at Exhibit “2” of the said affidavit- in-reply. In pursuance of the above agreement, 15% flats were to be surrendered to the Government by the developer for a price of Rs. 61,16,386/-. It is the contention of the Government that these flats were purchased under registered sale deed, which fact is disputed by Mr. Sanglikar by contending that the documents at Exhibit “3” of the said affidavit in reply is not registered sale deed but merely an agreement to sell. 9. We find there is enough material on record to show that the aforesaid 72 flats including the suit premises were acquired by the Government under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. The petitioners heavily relied upon the word WP/ 2442/10 7 SSK/ “Adhigruhit/avf/kx`ghr” referred in several documents of the Public Works Department in respect of the suit premises. In our opinion, merely because in some of the documents, the PWD Officers referred the suit premises as “Adhigruhit/avf/kx`ghr” does not make those premises “Adhigruhit or requisitioned”. It appears that bonafide mistake on the part of the Officers of the PWD has been committed in referring the suit premises as requisitioned, when in fact the Government has purchased the said premises for valuable consideration under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. 10. Be that as it may, the petitioners in their written statement to eviction proceedings have stated that the flats are constructed by Hiranandani Builders and Developers and handed over to the State Government under the Urban Land (Ceiling and Regulation) Act, 1976. Not only that, the petitioners also made representation to the Chief Minister for granting the suit premises to them on ownership basis. In this representation, it was the case of the petitioners that the suit premises are acquired under Urban Land (Ceiling and Regulation) Act, 1976. The petitioner in Writ Petition No. 2443 of 2010 also filed Writ Petition No. 491 of 2008 in this Court for Writ of Mandamus directing the Government to consider his claim and allot him the suit premises on ownership basis. In this writ petition in paragraph no.11, the petitioner has stated that the suit premises are out 10% quota at Powai. This writ petition is dismissed by a Division Bench by order dated 25th June, 2008. The petitioners’ written statement to the eviction WP/ 2442/10 8 SSK/ proceedings before the Competent Authority, their representations made before the Chief Minister and averment made in Writ Petition No.491 of 1998 alongwith documents produced by the Government through their affidavit in reply, if considered, in proper perspective, then, we have no doubt in our mind that the suit premises are owned by the Government and they are not requisitioned premises as alleged by the petitioners. The petitioners, therefore, are not entitled for any protection under Section 15-B of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. 11. The petitioners claim benefit of amended provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to contend that the suit premises are requisitioned premises. The petitioners could have produced an order under which the said premises are requisitioned under the Bombay Land Requisition Act, 1948. However, they could not point out any such requisition order. We find that the suit premises are not at all requisitioned premises and they are acquired by the Government under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. 12. The petitioners lastly relied upon the judgment of the Apex Court in the case of New India Assurance Co. Ltd. versus Nusli Neville Wadia & Anr. reported in AIR 2008 SC 876. The Supreme Court held that the occupants of the public premises would not only be entitled to show cause but would also be entitled to produce evidence in support of the cause shown. It is not the case of the petitioners that they have not been given an WP/ 2442/10 9 SSK/ opportunity to adduce any evidence in support of their case. This decision, therefore, is not applicable to the facts and circumstances of the present case. The learned City Civil Judge has after hearing the respective parties and appreciating the documents on record come to the conclusion that the petitioners are rightly directed to be evicted from the suit premises. We find no error in the impugned orders, so as to persuade us to interfere in the petitions. The petitions are accordingly, dismissed. (RANJIT MORE, J.) (SMT. RANJANA DESAI, J.)