- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.(L) No.1223 OF 2010 Kamaljit Kaur ... Petitioner vs Controller of Accommodation & others ... Respondents Ms.P.G.Bhatia for Petitioner Mr.M.V.More AGP for State ... CORAM: A.S.OKA & MRS.MRIDULA BHATKAR,JJ (Vacation Court) DATE: 21st May,2010 P.C. (Per Mrs Mridula Bhatkar, J) 1. This petition is filed against the judgment and order dated 27.7.2006 and the order dated 20.4.2006 passed by the Appellate Authority and the Principal Secretary, General Administration Department, Government of India, directing the petitioner to vacate the premises and hand over the possession to the respondents. The premises in dispute i.e. Room No.24-A, Ground Floor, Anand Bhuvan, 201, L.H.Road, Mahim, Mumbai-400 016 is a requisitioned premises under the provisions of the Bombay Land Requisition Act,1948. - 2 - 2. The respondent No.1 is the Controller of Accommodation and the Competent Authority under the provisions of the Bombay Land Requisition Act of 1948 and the respondent no.2 is the Appellate Authority under the Act. In the year 1957, he government had allotted the said premises to a government servant namely Mr.Rajaram Ganpat Pawar. It was occupied by him and his family members till 1972. It is alleged that on 1.1.1973 the legal heirs of allottee i.e. Ramesh Rajaram Pawar and Anand Rajaram Pawar put the petitioner in possession of the premises on leave and licence basis. The petitioner is residing in the requisitioned premises with her family members since then without any disturbance. On 14.6.2006 the respondent no. 1 issued a show cause notice to the petitioner under section 8 C (2) of the Bombay Land Requisition Act, 1948 asking her to vacate the premises and hand over possession. The petitioner gave a written reply on 21.6.2006 and specifically pointed out that she is protected in view of Maharashtra Act No.XVI of 1997 as a deemed tenant and she does not have any other accommodation and she will rendered homeless. Her explanation was not accepted and order dated - 3 - 27.7.2006 under the said Act directing the petitioner to hand over the vacant possession of the premises within 30 days from the date of receipt of the order was issued. 3. Being aggrieved by the said order, the petitioner preferred an appeal under section 80 (D) of the Bombay Land Requisition Act of 1948 to the Appellate Authority i.e. Respondent no.2 and obtained stay. After hearing the Appellate Authority rejected the appeal by its order and judgment dated 20.4.2010 and directed the petitioner to vacate the premises and hand over possession within 30 days from the date of receipt of the order. Hence, this petition. 4. The learned counsel appearing for the petitioner has submitted that till the retirement of the original allottee Mr.Rajaram Ganpat Pawar, the respondents did not demand possession of the petition premises. She pointed out that the State Government enacted Maharashtra Amendment Act No.XVI 1997 making amendments to the Bombay Land Requisition Act of 1948 and related Acts. Under the amendment, the allottee of the requisitioned - 4 - premises became a deemed tenant of the landlord from 7.12.1996. She submitted that the objects and reasons of the Bombay Land Requisition Act 1948 and the Maharashtra Amendment Act No.XVI of 1997 ought to have been considered in proper perspective by the Appellate Authority. She further argued that the amendment was made necessarily to protect those who would have been rendered homeless on account of shortage of the accommodation with government. The allottee of such a premises includes government servants who are still in government service and others. She emphasised that the original allottee and his legal heir were rightfully in possession of the said premises when they handed over possession of the premises to the petitioner. It is submitted that the Supreme Court has upheld the validity of Act No.XVI of 1997 by a reported judgment in WELFARE ASSOCIATION ART, Maharashtra and anr vs RANJIT GOHIL & ORS (AIR 2003 SUPREME COURT SC 1266). It is submitted that in view of this judgment, order dated 20.4.2010 deserves to be quashed and set aside. She submitted that the petitioner is entitled to interim relief in view of prayer clause (c) of the petition. 5. The learned A.G.P. appearing for the - 5 - respondents while opposing the petition has submitted that the order of allotment of the impugned premises was in the name of the government servant namely Mr.Rajaram Ganpat Pawar. The petitioner is not a government servant and has no right to continue to occupy the premises. 6. The petitioner claims relief on the basis of a long undisturbed possession. The petitioner herself is neither a government servant nor a legal heir of government servant. The petitioner is admittedly not an allottee of the premises. The object of the Land Requisition Act is to provide accommodation to the government servants who are in service. It was one of the measures adopted by the State to solve the acute problem of accommodation which is faced by government servants especially due to transfers. A government servant who has either retired or died prior to 7.12.1996 is not considered as a deemed tenant vide the amended Act. There is nothing to show that the allottee Mr.Rajaram Ganpat Pawar either retired or died after 7.12.1996. The very fact that the petitioner was given possession on leave and licence in January 1973 suggests that Mr.Pawar ceased to be in service prior to the said - 6 - date. Thus, the petitioner has no right or interest in the disputed premises. Protecting her will not only amount to contravention of the Act but, is misuse of the such welfare legislation. 7. A similar issue was dealt with in the case SMT.KAMAL SAHASTRABUDDHE Vs.CONTROLLER OF ACCOMMODATION) in W.P.No.467/2007 dated 16.8.2007 by the Division Bench of this Court. In that case, the petitioner was a widow of the government employee who had retired from service in 1982. By accepting the ratio in the judgment of the Supreme Court in the case of M.T.GUJJAR vs.STATE OF MAHARASHTRA reported in 2000 (3) SUPREME COURT CASES 295 a government servant who had retired prior to 7.12.1996 cannot be termed as a deemed tenant; the Division Bench refused to grant any relief to the petitioner as a deemed tenant. 8. The case of the present petitioner stands on a much lower footing than the petitioner in the case of SMT KAMAL SAHASTRABUDDHE supra. Neither the petitioner nor her husband was a government employee and hence she is not at all entitled to any protection as prayed in the petition. - 7 - 9. The order passed by the Appellate Authority is well reasoned and no fault can be found in the order. The Writ Petition is rejected. 10. On the prayer made by the learned counsel for the petitioner, we direct that order of eviction shall not be enforced for a period of eight weeks from today subject to condition that the petitioner will not part with possession and will not create any third party interests in respect of the premises in dispute. MRS.MRIDULA BHATKAR, J A.S.OKA,J - 8 -