IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5917 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- FIROZ NASARULLA SHEIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5917 of 1990 MRS KETTY A MEHTA for Petitioner No. 1 MR SP SEN & MR MANISH DAGLI, AGPs for Respondent No. 1 MR DD VYAS for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 14/03/2002 ORAL JUDGEMENT The petitioner challenges the order dated 28.8.1990 (Annexure "C") passed by the Collector, Valsad under the provisions of the Bombay Land Requisition Act, 1948 (hereinafter referred to as "the Act"). 2. When this petition was filed in the year 1990, the petitioner herein was holding the post of a Deputy Mamlatdar in the Revenue Department of the State Government and was posted in the Collectorate at Valsad. In the year 1966, when the petitioner was serving in the Valsad Collectorate, the petitioner had informed the Collector that the petitioner was desirous of occupying the premises known as Room No. 3 in "Baug-e-Jetun" Building in Valsad town. In September and October, 1966, the Collector, Valsad sent letters to Mohmad Husein Sema (original owner or the original landlord-father of respondent No. 2 herein) that the provisions of the Act were applicable to the premises in question and that since the premises were lying vacant, the same could not be let out to any one without the permission of the Collector, otherwise the owner would be liable to criminal prosecution. The original owner thereupon agreed to let out the premises to a Government servant. Hence, as per the Collector's order dated 5.11.1966, the petitioner occupied the premises on 8.11.1966. As against the rent of Rs.50 per month plus taxes demanded by the owner (father of respondent No.2), the petitioner was paying the rent of only Rs.33 per month to the original owner, which was the amount fixed by the Deputy Executive Engineer of the Public Works Department of the State Government. After transfer of the petitioner to another town, the original owner started requesting the Collector for directing the petitioner to return the possession of the premises in question to the owner. Upon the death of the original owner, the premises were inherited by his daughter, present respondent No. 2 Jebunnisha Fakir Mohmad Gebi, one of the ten heirs of the deceased-owner, and she also went on requesting the Collector to direct the petitioner to return the premises to respondent No. 2 as she had a large family and her son was getting married. The Collector by his impugned order dated 28.8.1990 (Annexure "G") cancelled the order dated 5.11.1966 under which the petitioner had obtained the possession of the premises from the original owner. The present petition is, therefore, filed under Articles 226 and 227 of the Constitution for challenging the aforesaid order dated 28.8.1990 at Annexure "G" to the petition. 3. The impugned order is challenged mainly on the ground that all that the Collector had done by the order date 5.11.1966 was granting permission to the landlord under Section 6(3) of the Act to let out the premises to the petitioner, but the Collector, Valsad had never requisitioned the premises under Section 6(4) of the Act with the result that the Collector has no authority to require the petitioner to hand over possession of the premises to the landlord. It is submitted that a contract of tenancy was entered into between the original landlord and the petitioner and that it was a private contract creating tenancy rights in favour of the petitioner which rights are protected by the Bombay Rent Act. Because the Requisition Act was applicable to the said premies, the landlord could not have let out the said premises without permission of the Collector and, therefore, the Collector had merely permitted the landlord to let out the premises to the petitioner by the aforesaid order dated 5.11.1966, but there was no requisitioning of the premises and, therefore, the Collector had no power or authority to exercise any powers under sub-section (4) of Section 6 or Sections 7 to 11 of the Act. 4. On the other hand, Mr SP Sen and Mr Manish Dagli, learned AGPs for the State of Gujarat/Collector of Valsad and Mr DD Vyas with Mr Utpal Panchal, learned counsel for respondent No. 2 have opposed the petition and submitted that the father of respondent No. 2, the original owner of the premises, had not entered into any contract of tenancy with the petitioner, but in view of the communications from the Collector requiring the original owner to give the premises on rent to a Government servant, the owner had acquiesced into the order of the Collector to permit a Government employee to occupy the premises and that too at the rent determined by the Deputy Executive Engineer of the State Government. It is, therefore, submitted that this was not a case where the owner and the occupant entered into a private agreement creating tenancy rights in favour of the petitioner and merely obtained permission under sub-section (3) of Section 6 of the Act, but it was a case where the Collector and the petitioner had taken initiative to command the original owner, the father of respondent No. 2, to give the premises on rent to the petitioner at the rent which was fixed by the Deputy Executive Engineer and, therefore, the premises were requisitioned, even if there was no formal order requisitioning the premises. The learned counsel for respondent No. 2 also pointed out from the reply affidavit dated 27.3.1997 that during pendency of this petition, the petitioner has already acquired another premises in Valsad consisting of three rooms and a kitchen as supported by the municipal record. 5. After hearing the learned counsel for the parties for sometime on 11.3.2001, the Court called upon the learned AGPs to call for the original file giving rise to the order dated 5.11.1966 and the other correspondence to throw light on the controversy whether the premises were given by the original owner to the petitioner on account of any requisition from the Collector's office or whether it was a private arrangement between the original owner and the petitioner. The learned AGPS have made the file from the Collector's office available for perusal of the Court and the same has also been shown to Mrs Mehta, learned counsel for the petitioner for inspection. 6. Some of the documents in the file are, of course, already produced either with the petition or with the affidavit in reply of the Collector, Valsad. The Court would like to make a reference to all the relevant documents and events in a chronological order. 6.1 The property in question is room No. 3 of a building called "Baug-e-Jetun", Sema Chawl in Mota Taiwad of Valsad town. 6.2 It appears that some information was given to the Collector's Office that Mohmad Husein Sema, the original owner of the property in question had some vacant premises which he was not ready to let out and, therefore, whenever enquiries were made, he used to reply that the premises were not lying vacant. It, therefore, appears that on enquiry, GS Kazi, who was occupying the aforesaid premises, informed the Collector in writing on 21.9.1966 that in near future he intended to vacate the aforesaid premises and if the Government wished to take over its possession, he (GS Kazi) might be contacted. On 29.9.1996, the Collector, Valsad sent a communication to the owner of the premises Mohmad Haji Museji Sema stating as under (translated) :- "This office has received specific information that room No. 3 in Baug-e-Jetun building in Mota Taiwad of Valsad, belonging to you, is lying vacant. In view of the applicability of the Bombay Land Requisition Act to Valsad town, the landlord is required to inform this office about vacant premises within 7 days from the date on which the premises fall vacant and such premises cannot be let out without permission of the Collector, Valsad. Hence, if it is brought to the notice of the Collectorate that you have let out the said property bearing room No. 3 to any person without permission of this office, legal action will be taken against you as per the provisions of Section 6(5) of the said Act which may be noted. It is requested to send the information within within 7 days from the receipt of this letter as to on which date room No. 3 had fallen vacant." (emphasis supplied) (Section 6(5) of the Act provides for prosecution of a landlord letting out his premises without permission of the Collector). A copy of the said letter was forwarded to GS Kaji, who had by then shifted to Nani Daman with a request to inform the Collectorate as to on which date the aforesaid property had fallen vacant. On 19.10.1966, the Requisition Inspector from the Collectorate, Valsad recorded the statement of original owner (Mohmad Husein Sema) and two persons in the neighbourhood for finding out when GS Kazi vacated room No. 3 in question. The original owner (Mohmad Husein) informed the Requisition Inspector that Kazi had already shifted to his own property in Nani Daman and he was to vacate room No. 3 within about 8 days and that after getting vacant possession of the property, he (Mohmad Husein) would inform the Collector about the availability of the premises and that he was ready to let out the property to a Government employee. 6.3 It is important to note that in the meantime on 1.10.1966 the petitioner who was a Clerk in the Collectorate, Valsad had requested the Collector, Valsad that he had learnt about room No. 3 in the aforesaid property lying vacant and that the property was lying vacant since 20.9.1966 and that the said room was suitable for the petitioner's family. Hence, permission may be granted for the said room being let out. 6.4 On 24.10.1966, the Collector sent another communication to the petitioner stating as under (translated) :- "This office has received specific information that room No. 3 in Baug-e-Jetun building in Valsad belonging to you is lying vacant. It has also been found that the statement made by you on 19.10.1966 that the previous tenant Kazi had not handed over possession of the room was false, because possession of the room is with you. If you let out room No. 3 to any tenant without permission of the Collector, this office will evict the unlawful tenant and legal action will be taken against the landlord under Section 6(5) of the Bombay Land Requisition Act, which may be noted. Hence, this office be informed about the said property lying vacant within one day, failing which this office will take further action which may be noted." (emphasis supplied) (Section 6(5) of the Act provides for prosecution, as indicated earlier). In response to the aforesaid letter, Mohmad Husein, the original owner informed the Collector on the same day i.e. on 24.10.1966 as under (translated) :- "With respects, this is to inform you that building Baug-e-Jetun in Mota Taiwad in Valsad town is of my ownership. Room No. 3 in the said building is lying vacant and the same may be given on rent to any Government employee." (emphasis supplied) 6.5 It was in the aforesaid background that the Collector, Valsad issued the order dated 5.11.1966 after making a reference to the application dated 1.10.1966 of the petitioner requesting for making room No. 3 in the aforesaid property available to the petitioner to accommodate his large family and also making a reference to the letter dated 24.10.1966 received from owner Mohmad Husein about room No. 3 lying vacant. The Collector thereupon granted permission for giving the aforesaid room No. 3 on rent to the petitioner. The said order dated 5.11.1966 reads as under (translated) :- "This office has received information from the landlord that room No. 3 in Baug-e-Jetun building in Mota Taiwad, Valsad, belonging to Mohmad Husein Sema is lying vacant. Mr FN Sheikh, Clerk in the Mamlatdar office, Pardi has demanded that said room No. 3 be given on rent to him, because he has a large family and the premises in which he is presently residing in Valsad do not have any facilities and he has represented that this will be convenient to him. In view of the above facts, permission is granted for giving room No. 3 in Baug-e-Jetun building on rent to Mr FN Sheikh. Sd/- (for Collector) Copy to Mr Mohmad Husein Sema with a request to handover possession of room No. 3 to Mr Sheikh within one day. Copy to Mr FN Sheikh, Clerk, Mamlatdar Office, Pardi to take over possession of the room immediately and report compliance." (emphasis supplied) In view of the above communications, the original owner (father of respondent No. 2) permitted the petitioner to occupy the room in question and the petitioner submitted the report dated 8.11.1966 informing the Collector that the petitioner had taken over possession of the premises in question on that day. 6.6 The original owner demanded from the petitioner the rent of Rs.50/- per month plus taxes. The petitioner refused to pay such amount of rent and requested the Collector to get the rent of the premises fixed. The Deputy Engineer in the State Government, Valsad submitted certificates dated 28.12.1966 and 7.1.1967 fixing the rent at Rs.33 per month for the period from 5.11.1966 to 31.3.1967. The Collector accordingly forwarded the said rent certificates to the petitioner alongwith the letter dated 24.2.1967 and also forwarded a copy of the same to original owner Mohmad Husein Sema requiring him to recover the rent as per the said certificates of the Deputy Engineer. The petitioner also sent letter dated 23.3.1967 to the original owner stating that he (the owner) was demanding rent at the rate of Rs.50 per month plus taxes, but the Deputy Engineer had fixed the rent at Rs.33 only and, therefore, the petitioner would pay monthly rent of Rs.33 plus taxes to the tune of Rs.3.75 i.e. Rs.36.75 in aggregate. The petitioner also addressed the letter dated 30.3.1967 to the Collector informing him that the petitioner had sent rent at the rate of Rs.33 plus tax of Rs.3.75 per month, but the owner was not accepting the money order. Hence, the Collector by his letter dated 20.4.1967 called upon the owner to accept the rent at the rate of Rs.33 per month as fixed by the Deputy Engineer and to accept the rent being remitted by the tenant i.e. the petitioner herein. 6.7 Thereafter on 4.2.1976, original owner Mohmad Husein requested the Collector that the petitioner was transferred from Valsad to Dharampur and, therefore, the petitioner should be required to vacate room No. 3 let out to him and that the arrears of rent which the petitioner had not paid should be ordered to be deducted from the petitioner's salary and remitted to the owner. By his letter dated 7.2.1976, the Collector called upon the petitioner to pay the arrears of rent to the owner. Thereafter on 11.4.1985, present respondent No. 2 (daughter of the original owner) informed the Collector that during his life time, her father Mohmad Husein had partitioned the properties and room No. 3 of Baug-e-Jetun building was given to respondent No. 2 as her share. The said room had been given to the petitioner on account of the requisition made by the Collector as per the order dated 5.11.1966. Respondent No. 2 required the room for occupation of her family. Therefore, the Collector was requested to call upon the petitioner to handover possession of the room to respondent No. 2. Thereafter also respondent No. 2 requested the Collector on 13.1.1986 to call upon the petitioner to handover possession of the premises to respondent No. 2 by derequisitioning the premises. By reply dated 29.3.1986, the Collector, Valsad informed respondent No. 2 that the period of requisition was extended till 31.3.1987 and, therefore, the property cannot be derequisitioned. The file also discloses that on 6.1.1988 the Mamlatdar, Valsad informed the Collector that when the petitioner was called upon to handover possession of room No. 3 to respondent No. 2, the petitioner had given a reply stating that the period of requisition was extended by the Government till 31.7.1990 and that the petitioner was discharging duties as Deputy Mamlatdar in the Collectorate, Valsad. Respondent No. 2, however, persisted that the other premises which were requisitioned alongwith room No. 3 were already derequisitioned, but still the petitioner who went on giving oral promises for returning the premises to respondent No. 2 did not handover possession of the premises which fact was causing a lot of hardship to respondent No. 2 and her family as her son had married and the room in question was required for occupation by the family. Respondent No. 2 went on pleading her entreaties and ultimately by the impugned order dated 28.8.1990 (Annexure "G"), the Collector cancelled the order dated 5.11.1966. It is against the said order that the present petition is filed. 7. The principal contention raised in this petition is that the premises in question were not requisitioned under sub-section (4) of Section 6 of the Act, but only permission was granted by the Collector under sub-section (3) of Section 6 and, therefore, by a private contract tenancy rights were created by original owner Mohmad Husein in favour of the petitioner. 8. In response to the notice and Rule issued by this Court, affidavit in reply dated 5.5.2001 has been filed by the Collector, Valsad and affidavit in reply dated 17.12.1991 and another affidavit dated 27.3.1997 are filed by respondent No. 2. It is stated in the affidavit of the Collector that the order has been passed using and exercising authority and power vested with the Collector and, therefore, the said house can be considered as a requisitioned house. It is also stated that the petitioner was allotted the premises in question on rent in view of the provisions of the Bombay Land Requisition Act, 1948 and, therefore, the provisions of the Bombay Rent Act would not be applicable to the facts of the present case. The Collector has also produced the letter dated 24.10.1966 from his office to the original owner, the owner's reply dated 24.10.1966 and the other communications of 1990. 9. The stand of the present owner (daughter of the original owner) respondent No. 2 in the reply affidavit is that the premises in question were not let out to the petitioner as a tenant under any private agreement, but it was pursuant to the requisition made by the Collector and allotment in favour of the petitioner that the petitioner was permitted to occupy the premises. Respondent No. 2 has also denied that there was any relationship of landlord and tenant between the petitioner and respondent No. 2. In the affidavit dated 27.3.1997, respondent No. 2 has also pointed out that her elder son got married and her younger son was also to get married and that, therefore, the premises in question were badly required by her family. She also pointed out that the petitioner has got his own accommodation in his wife's name in Roshan "A" Apartments, Kosamba Road, Mustaqnagar, Valsad and that the said premises consist of 3 rooms and a kitchen. The petitioner's family consists of 4 persons only and the other daughters of the petitioner are married and residing at their in laws' place. Hence, the premises in question consisting of only one room are not required by the petitioner. Respondent No. 2 has also produced alongwith the said affidavit a copy of the property card showing that in the year 1995-96 the petitioner had premises consisting of 3 rooms and a kitchen admeasuring 900 sq.ft. 10. At the further hearing of this petition, Mrs Ketty A Mehta, learned counsel for the petitioner has submitted that the premises in question were never requisitioned. If the premises had been requisitioned, the Collector would have issued an order of requisition as per the format which is at Annexure "B" to the petition, which (translated) reads as under :- "Upon enquiry under Section 6(1) of the Bombay Rent Act, 1948, it is found that after coming into force of the said Act, the premises described in the schedule hereto have fallen vacant. Hence, by virtue of the powers conferred on me under clause (a) of sub-section (4) of Section 6 of the said Act, I, _________, Collector, Valsad hereby requisition the said building for the public purpose of letting the same out to a Government Office/employee. Schedule Owner of the building : ______________ Property Details : ______________" It is contended that since such a requisition order was neither issued nor produced by the respondents, it is clear that the premises in question were never requisitioned under sub-section (4) of Section 6 of the Act and all that the Collector had done by order dated 5.11.1966 was to grant permission under sub-section (3) of Section 6 to the landlord to let out the premises to the petitioner. Any premises which were covered by the Bombay Land Requisition Act, 1948 could not have been let out to any person without permission of the Collector and, therefore, the permission under sub-section (3) of Section 6 merely lifted the statutory embargo, but the transaction in question was essentially a private lease under which the petitioner became a tenant and acquired all the rights as a tenant under the Bombay Rent Act. No rent was fixed by the Collector. The rent was not being recovered by the Collector and the landlord was not being paid compensation by the Collector, but the petitioner was paying rent directly to the landlord and, therefore, there was a contract of private tenancy created in favour of the petitioner which was protected under the provisions of the Bombay Rent Act. It is, therefore, submitted that the petitioner cannot be evicted from the premises in question unless respondent No. 2-landlady obtains a decree of eviction from the competent Court under the Bombay Rent Act. It is further submitted that in any view of the matter, the Collector cannot ask the occupant i.e. the petitioner to return the premises to the landlord or respondent No.2, but the premises can be ordered to be returned only to the Government. Lastly, it is submitted that since the landlord has not terminated the tenancy, there is no ground whatsoever for the Collector to send any notice to the petitioner. 11. The Bombay Land Requisition Act, 1948 ("the Act" for short) was enacted to provide for the requisition of land, for the continuance of requisition of land and for certain other purposes. Section 4 of the Act gives the definition of the relevant expressions as under :- "4. In this Act, unless there is anything repugnant to the subject or context - (1) "land" includes benefits to arise out of land, and buildings and all things attached to the earth or permanently fastened to the buildings or things attached to the earth; (2) "landlord" means any person who is, for the time being, receiving or entitled to receive, rent in respect of any premises whether on his own account on account, or on behalf, or for the benefit, or any other person, or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and