:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5141 OF 2007 Sarvagnya Prataprai Trivedi ....Petitioner Versus The Controller of Accommodation and anr. ....Respondents Mr.Godbole appearing for the petitioner. Mr.R.M.Patne, AGP for respondents. CORAM: S.C.DHARMADHIKARI, J. ORDER RESERVED : 12.12.2007 ORDER PRONOUNCED: 22.1.2008 O R D E R : R D E R : R D E R : 1. Rule. Respondents waives service. 2. By consent of parties, Rule made returnable forthwith. 3. By this petition under Article 226 and 227 of the Constitution of India, the petitioner challenges the legality and validity of the letter dated 17.4.2007 (Exhibit-R) and order dated 28.6.2007 (Exhibit-T) and prays that these be quashed and set :2: :2: :2: aside by issuing an appropriate writ, order and direction of this court. 4. The petitioner is an Indian citizen and a advocate by profession. She questions the orders in the backdrop of the facts stated hereinafter. She submits that her parents Prataprai Nagardas Trivedi and Harbalaben Prataprai Trivedi were occupying a room in Fort area of Mumbai. The building in which the said room was located collapsed in 1957-58. In such circumstances, mother of the petitioner was allotted two rooms on the first floor, Dina Bldg, 2nd Sonapur Cross Lane, Chira Bazar, Mumbai-400 002. This allotment was pursuant to a Requisition order of the first respondent. The requisitioning of the room was done by resorting to the provisions of the Bombay Land Requisition Act, 1948. After the requisitioning was completed, an Allotment order was issued in favour of the petitioner’s mother Harbalaben on 4.1.1958. It is the case of the petitioner that she has been residing in these premises with her parents for last 49 years. She has continued in possession after the demise of her :3: :3: :3: parents and all her articles are lying therein. She is in exclusive use and occupation of these premises. She is residing alone. 5. The further case of the petitioner is that an letter was received by her calling upon her to vacate the said rooms/premises within 15 days from the receipt of the said letter. The petitioner replied to this letter on 22.5.2006. It is contended by her that the premises are not requisitioned premises. The Controller of Accommodation has no jurisdiction to call upon the petitioner to vacate the premises. She placed reliance upon the amended provisions of the Rent Control Act and more particularly, Section 27 of the Maharashtra Rent Control Act, 1999. It is her case that she became Tenant in respect of the said premises/rooms by virtue of the legal provisions. She submits that the legality and validity of the Amendments to the Bombay Rent Act had been challenged and the challenge has failed. She placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Welfare Association, A.R.P., Welfare Association, A.R.P., Welfare Association, A.R.P., :4: :4: :4: Maharashtra Maharashtra Maharashtra and Anr. vs. Ranjit P. Gohil and and Anr. vs. Ranjit P. Gohil and and Anr. vs. Ranjit P. Gohil and Others Others Others reported in JT 2003 SC 335. reported in JT 2003 SC 335. reported in JT 2003 SC 335. 6. She contended that the amended provisions fully apply to her case. She also placed reliance upon the letter dated 19.8.1996 addressed by the Controller of Accommodation, copy of which is at Annexure-C. 7. The petitioner also pointed out that the original landlady Mrs.Daruwalla had issued rent receipts in favour of the petitioner’s predecessor/mother. These were direct receipts acknowledging the relationship of landlord and tenant. She submits that the present landlord Haji Tarmohamad Abdul Rehman has, after acquisition of the rights in respect of the building, where the said premises are located intends to put it to some profitable use. However, even the said Haji Rehman has been issuing rent receipts in favour of the mother of the petitioner. For all these reasons, she prayed that the notice dated 28.4.2006 is null and void. She has placed reliance upon the replies :5: :5: :5: addressed by her Advocate, copies of which are annexed as Exhibit-G and H. She submits that she sought inspection of the Records and Proceedings and she was granted an appointment for the purpose of inspecting the documents. According to her, they confirm her above status. 8. It is in such circumstances, that the petitioner submits that the letter dated 17.4.2007 is null, void and bad in law. 9. She also challenges the further order dated 28.06.2007 which has been issued by the first respondent under Section 11(1) of the Bombay Land Requisition Act (hereinafter referred to as "the Requisition Act"). 10. Mr.Godbole, learned counsel appearing for the petitioner submits that the impugned orders are null and void, so also, not binding upon the petitioner. Mr.Godbole, submits that the allotment in the favour of the petitioner’s parents was under the category of "Homeless persons". He submits that the mother :6: :6: :6: of the petitioner expired on 16.8.1987 and her father expired on 30.10.1997. The petitioner is the legal heir and is residing with the parents since childhood. He submits that there is no question of the Requsition Act applying after Section 27 was placed on the statute-book. He submits that all prior actions including the Judgments of the courts are no longer valid as the petitioner is recognised as a tenant of the landlord. 11. Mr.Godbole has submitted that the Bombay Land Requisition Act was enacted in the year 1948 for requisition of the premises and to allot the same to the different categories of persons. By the passage of time, the said requisition was continued for a considerable length of time. The continuation of requisition of premises remained in force for longer time and the same resulted in filing legal proceedings in the Court of Law for an order to de-requisition the premises. Finally, the said matter reached the Hon’ble Supreme Court and the Hon’ble Supreme Court by judgment in the case of Grahak Grahak Grahak Sanstha Manch & Ors Vs. State of Maharashtra Sanstha Manch & Ors Vs. State of Maharashtra Sanstha Manch & Ors Vs. State of Maharashtra :7: :7: :7: reported reported reported in J.T.1994(3) SC 474 in J.T.1994(3) SC 474 in J.T.1994(3) SC 474 held that "the requisition may be continued only for a reasonable period; what the period should be would depend upon the facts and circumstances of each case and it would ordinarily be for the Government to decide". The Hon’ble Supreme Court further directed "the Occupant to handover vacant possession to the State Government by 30/11/1984." As a result of this judgment the Supreme Court the decision of State of Maharashtra to de-requisition of the premises was upheld, so that the possession can be handed over to the landlords. 12. Pursuant to the decision of the Supreme Court in Grahak Sanstha’ case, de-requisition proceedings were initiated by the State Government. Due to the same, the State Government was facing various difficulties in making alternative arrangements for Government employees occupying requisitioned premises who were still in government service. In order to overcome the difficulties faced by the State government the State Government issued Ordinance No.23 of 1996 on 7/12/1996 amending the :8: :8: :8: Bombay Land Requisition Act, 1948, Bombay Rent Act, 1947 and other relevant Acts. By the said Ordinance, Clause (1A) in Section 5 and Section 15B was inserted in Bombay Rent Act. By inserting Clause (1-A) in Section 5 the term "Government Allottee" was defined. The definition of "Government Allottee" reads as under : (2) "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 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 (Mah.XXIV of 1961), or any foreign consulate, by whatever name called, and on the 7th December, 1996, being 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 (Mah XVI of 1997) were in their occupation of 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 were allotted by the State Government for residential purpose to any person and on he 7th December, 1996, being the date of coming into force of the Bombay Rents, Hotel and Lodging House Rates Control, Bombay Land :9: :9: :9: Requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996, (Mah XVI of 1997) such person or his legal heir was in occupation or possession of such premises for his or such legal heir’s own residence, means such person or legal heir ; Section 15B reads as follows : Section 15-B : (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) Ordinance, 996 hereinafter in this section referred to as the "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, and in the Bombay Land Requisition Act, 1948, or any other law for the time being in force, or in any contract, or in any judgment, decree or order of any court passed on or after the 11/06/1996, be deemed to have become, of the landlord and such premises shall be deemed to have been let by the landlord to the State Government Allottee, on 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 provisions of this Act, :10: :10: :10: nothing in this section shall affect - (a) the rights of the landlord including his right to recover possession of the premises from such tenant or 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-clause (1); (c) the operation and the application of the other relevant provisions of this Act in respect of such tenancy." 12. Accordingly Bombay Land Requisition Act, 1948 was also amended and sub-section (8) in Section 9 was added which reads as follows : Sub-section (8) 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) Ordinance, 1996, all the premises requisitioned or continued under requisition under this Act and allotted to Government Allottees who, on the said date were allowed by the State Government to continue to remain in occupation or possession of such premises, shall be deemed to have been released from requisition, and in respect of such premises the State Government, or as the case may be, the Government Allottees referred to in clause (b) of the Explanation, shall become the tenants by virtue of the provisions of Section 15-B of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the compensation, if any, due in respect of such premises shall :11: :11: :11: be determined and paid to the persons entitled thereto as if such premises were actually released under this section. Explantion : For the purpose of this sub-section the expression 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 of any department or office of the State Government or Central government or any public sector undertaking or 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 consulate 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 Ordinance, 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 Rent, Hotel and lodging House Rates Control, Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment) Ordinance, 1996, such person or his legal heir is allowed by the State Government to remain in unlawful occupation or possession of such premises for his own or such legal heir’s residence, means such person or legal heir." :12: :12: :12: 13. Mr.Godbole, submits that the above referred provisions and more particularly Section 5(A), S.15B of the Bombay Rent Act, 1947 and Section 9(8) of the Bombay Land Requisition Act were interpreted by supreme curt in several decisions. He invites my attention to the decision of the supreme court in the case of Kunal R.Chaudhari vs. Purshottam B. Kunal R.Chaudhari vs. Purshottam B. Kunal R.Chaudhari vs. Purshottam B. Todi Todi Todi reported in 1997 Bom.Rent Cases page 188. reported in 1997 Bom.Rent Cases page 188. reported in 1997 Bom.Rent Cases page 188. He invites my attention to another judgment which is of this court in the case of Rasheed A. Maskati and Rasheed A. Maskati and Rasheed A. Maskati and Anr. Anr. Anr. vs. State of Maharashtra and Ors. reported vs. State of Maharashtra and Ors. reported vs. State of Maharashtra and Ors. reported in in in 1998(2) Mh.L.J.page 188. 1998(2) Mh.L.J.page 188. 1998(2) Mh.L.J.page 188. He submits that the amendments to the Rent Control Act which have been made pursuant to the Maharashtra Act, 16 of 1997 were struck down as unconstitutional by this court. However, in the case of Welfare Association ARP Mah Welfare Association ARP Mah Welfare Association ARP Mah and and and anr. vs. Ranjit P. Gohil and anr reported in anr. vs. Ranjit P. Gohil and anr reported in anr. vs. Ranjit P. Gohil and anr reported in JT JT JT 2003 (2) SC 335 2003 (2) SC 335 2003 (2) SC 335, the Supreme court reversed the judgment of this court. It upheld the constitutional validity of Maharashta Act, 16 of 1997. 14. Mr.Godbole, submits that Bombay Rent Control :13: :13: :13: Act, 1947 was repealed by the Maharashtra Rent Control Act, 1999. He submits that the Maharashta Act came into force from 31.3.2000. Section 27 of the same reads as under :- Section 27 : On the 7th December, 1996 that is 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) Ordinance, 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 (2) of Section 7; 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 2 of Section 7, shall, notwithstanding anything contained in this Act, or in the Bombay Land Requisition Act 1948, or any other law for the time being in force, or in any contract, or in any judgment, decree or order of any court passed on or after the 11/06/1996, or in any order of eviction issued by the Competent Authority, or by the Appellate authority, under the Bombay Land Requisition Act, 1948 (XXXIII of 1948) be deemed to have become, for the purpose of this Act the tenant of the landlord and such premises shall be deemed to have been let by the landlord to the State Government Allottee, on payment of rent and permitted increases equal to the amount of compensation payable in respect of the premisses immediately before :14: :14: :14: the said date. (2) Save as otherwise provided in this Section or any other provisions of this Act, nothing in this section shall affect - (a) the rights of the landlord including his right to recover possession of the premises from such tenant or 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-clause (1) ; (c) the operation and the applicant of the other relevant provisions of this Act in respect of such tenancy. " 15. Mr.Godbole places reliance upon Section 15-B of the 1947 Rent Act and Section 27 of the Maharashtra Rent Control Act and submits that there is a difference between the two. Section 27 grants the status of deemed tenant notwithstanding any judgment or decree of any court passed on or after 11.6.1996. He submits that Section 15-B does not override any order of the competent authority but overrides an order of the court. If any order is :15: :15: :15: passed by the competent authority prior to 7.12.1996, then, no status of deemed tenant is conferred on the Government Allottee. However, Section 27 is widely worded. It grants such status to all government allottees who are in possession of the requisitioned premises irrespective of any order passed by the competent authority or the appellate authority under the Requisition Act before 7.12.1996. No cut-off date has been fixed in the case of the order passed by such authorities. Therefore, Section 27 of the Act being applicable all communications and orders calling upon the petitioner to vacate the premises are patently and ex-facie without jurisdiction, illegal, null and void. 16. Mr.Godbole submits that the two Division Benches of this court without referring to Section 27 have denied protection to the allottees. These judgments are per-incuriam. Therefore, no reliance can be placed on these decisions. They have been rendered without considering Section 27 of the Maharashtra Rent Control Act, 1999. :16: :16: :16: 17. Finally Mr.Godbole submits that in view of the fact that in Section 27 of M.R.C.Act, 1999, no cut-off date has been fixed and thus it saves the eviction of the Government Allottee, even if the order has been passed by the Competent Authority and confirmed by the Appellate Authority, Section 27 will still operate in favour of the petitioner. Section 27 clearly operates retrospectively. 18. In the case in hand the Competent Authority has passed an order on 13.02.1996. As on the date of coming into force of M.R.C.Act, 1999, the petitioner is in possession of the requisitioned premises and therefore in view of Section 27 the status of deemed tenant has been conferred upon the petitioner. 19. On the other hand, the learned AGP appearing for the respondents supports the impugned order. He also invites my attention to the Affidavit filed by the Controller and Under- Secretary, GAD on behalf of the respondents. It is contended that as per the :17: :17: :17: official record and documents, nobody is residing in the requisitioned premises. The premises were allotted to Smt. Harbala Prataprai Trivedi on 4.1.1958. She died on 16.9.1987. Thereafter, the husband of the government allottee died on 30.10.1997. The death certificate pertaining to the husband of the government allottee (father of the present petitioner) demonstrates that the permanent address is SuryaKalyani Mansion, 4th floor, Wellington Street, Dhobitalao, Mumbai-400 002. It is submitted that an order was passed under Section 8(c)(1) of the Requisition Act. A reply was submitted by the present petitioner to the order on 4.3.1996. The address does not show that of the requisitioned premises but the above Mansion. There are other documents including the report of the Rationing Office dated 17.7.2007. Thus, there are people other than the present petitioner and her family who are residing in the requisitioned premises. The inspection carried out in February-1996 to serve the order of eviction shows that the premises were locked. The order of eviction is dated 13.2.1996. The telephone number :18: :18: :18: in the name of the present petitioner shows some other address. There is another inspection carried out in October, 2001 wherein it is shown that the government allottee or his heirs were not residing there but business of selling umbrellas was being conducted from the premises. In January, 2004 the premises were used to store carton boxes by a private firm. This fact is accepted by the present petitioner. In January, 2006 once again inspection was conducted and the premises were found locked. It is contended that the petitioner had married and a Ration Card issued in her favour shows her name as Sarvagnya Bharat Manubarwalla. She has married this gentleman and residing at the above Mansion. Thus, the petitioner has suppressed material facts from the court and is rather misleading the court. It is pointed out that the eviction order in respect of the said premises has been issued on 13.2.1996, that is, much prior to 7.12.1996, which is the cut-off date. In such circumstances, there is no question of the petitioner getting any protection. Reliance is placed upon the Division Bench judgment of this court in the case of Ghanashyam Bhanushankar Trivedi Ghanashyam Bhanushankar Trivedi Ghanashyam Bhanushankar Trivedi :19: :19: :19: vs. vs. vs. The Competent Authority in Writ Petition The Competent Authority in Writ Petition The Competent Authority in Writ Petition No.1342 No.1342 No.1342 of 1996. of 1996. of 1996. My attention is invited to the Show Cause Notice dated 2.2.1995 issued to the legal heirs of the original allottee. There was a reply filed to this Notice by the father of the petitioner on 13.2.1995. Thereafter this reply was taken into consideration and an eviction order was passed on 13.2.1996. That order was accepted and all that the petitioner requested was to extend time, so as to enable the petitioner to make alternate arrangement. There is no appeal preferred against this order. It is in such circumstances, that request was made to hand over possession of the premises but that request was not accepted by the petitioner and she sought an hearing before the competent authority on 2.8.2006. Although there was no necessity of going into the matter once again, the authority heard the petitioner and passed an order of forcible possession on 28.6.2007. In such circumstances, the petitioner does not get any protection of law. Further, even the Maharashtra Rent Control Act and Section 27 would not apply to the case of the present petitioner. At no stage, the petitioner :20: :20: :20: claimed protection and has demonstrated that she has abided by the mandate of law or paid any amounts to the landlord. There is no document produced to that effect. For all these reasons, the Learned AGP submits that the Writ Petition be dismissed with costs. 20. Mr.Godbole invites my attention to the Affidavit in rejoinder and more particularly para 6 to 8 thereof and submits that