IMPORTANT POINT
Maharashtra State Government employee continuing with the possession of the requisitioned premises even after the invalidity of the order of requisition dated 17.4.1958 and his retirement, cannot be treated as deemed tenant.

Headnote:(i) Bombay Land Requisition Act, 1948-Maharashtra Amendment Act No. XVI of 1997 amending Bombay Government Premises (Eviction) (Amendment) Act, 1996 w.e.f. 7.12.1996-Section 5(1A)(b)-Government allottee-Deemed Tenant-Claim of benefit of-Sustainability-Respondent 3, a State Government employee was allotted suit premises-These were requisitioned premises-Respondents 3 retired from Government service on 30.9.1993-However, he continues to be in possession of premises-Order of requisition having been set aside-Whether respondent 3 has any right to continue in possession of premises, on facts and in circumstances of the case-(No)-Accommodation or possession of premises within meaning of clause (b) of Section 5(1A) who when allotted was a Government employee has to be on account of some right to occupy or possess the premises-Continued occupation or possession without any such right-It would not confer on the occupant status of a Government allottee-Respondent 3 cannot be treated as deemed tenant-He is not entitled to continue in possession in view of stay order dated 6.10.98.
       Held : The object of Amendment Act XVI of 1997 was to protect those who would have been rendered homeless though still in Government service on account of the shortage of accommodation with the government and it being not possible for the Government to give suitable alternative accommodation to such Government allottees. It is not and cannot be the case of the respondents that even after retirement, the Government had any obligation or policy to provide accommodation to retired employee. (Para 14)
       The deletion of the words allowed by the State Government to remain from clause (b) of Section 5(1A) by Ordinance dated 26th December, 1997 also does not alter the status of an occupant like respondent No. 3. The word allowed in the aforesaid provision may mean some positive sanction and not mere slackness on the part of the Competent Authority in not taking action for getting the premises vacated. It is evident that the accommodation or possession of the premises within the meaning of clause (b) by a person who when allotted was a Government employee has to be on account of some right to occupy or possess the premises. The continued occupation or possession without any such right would not confer on the occupant status of a Government allottee simply on account of such person being in occupation or possession of requisitioned premises even after retirement. The reason for authorities not taking any action to get such premises vacated is explainable on account of the said premises being not available for allotment again to any existing Government servant. On this account, the authorities may not initiate any proceedings for getting the possession but that would not confer on the occupant the status of Government Allottee within the meaning of the term as defined in the Amendment Act. Thus, assuming the Amendments to be valid, we find that no right in favour of respondent No. 3 to continue with the possession of the premises even after the invalidity of the order of requisition dated 17th April, 1958 and his retirement. Respondent No. 3 cannot be treated as deemed tenant. (Para 15)
       The said stay order dated 6th October, 1998 only relates to those allottees who have become tenants under the Amendment Act. The amendment has not conferred status of the tenant on respondent No. 3. Therefore, the question of the order dated 6th October, 1998, protecting the possession of the respondent No. 3 does not arise. The filing of any undertaking by respondent No. 3 in the said appeal filed by the Welfare Association is of no consequence and cannot affect the rights of the appellant and the respondent No. 4 who are not parties in the said appeals. (Para 16)
       (ii) Bombay Government Premises (Eviction) (Amendment) Act, 1996 as amended by Maharashtra Amend ment Act No. XVI of 1997-Section 5(1A)(b)-Deemed tenant-Claim of status of-Sustainability-Deletion of words allowed by the State Government to remain from clause (b) of Section 5 (1A) by Ordinance dated 26.12.1997-Word allowed means some positive sanction and not mere slackness on part of Competent Authority in not taking action-Accommodation or possession of premises within meaning of clause (b)-It has to be on account of some right to occupy or possess the premises-Continued possession or occupation without any such right would not confer on the occupant status of a Government allottee even after retirement-Respondent 3, a State Government employee continuing with possession of requisitioned premises even after invalidity of order of requisition dated 17-4-1958 and his retirement on 30.9.1993-Whether he can be treated as deemed tenant?-(No). (Para 15)
       (iii) Words and Phrases-Word allowed -It means some positive sanction and not mere slackness in not taking action. (Para 15)

JUDGMENT

Y.K. Sabharwal, J.-Leave granted.

2. Respondent No. 3 was a State Government employee. He retired from Government service on 30th September, 1993. As a Govt. servant, respondent No.3 was allotted the premises in question. These were requisitioned premises, having been requisitioned under the order of requisition dated 17th April, 1958 under the Bombay Land Requisition Act, 1948. The order of requisition has been set aside but respondent No. 3 continues to be in possession of the premises. Has respondent No. 3 any right to continue with the possession of the premises despite order of requisition having been set aside and respondent No. 3 having retired from service, is the question for consideration before us.

3. The appellant and respondent No.4 are the co-owners of the property. In this appeal, we are not concerned with their inter se disputes which are the subject matter of Suit No. 4120 of 1990 which suit is for partition and other consequential reliefs is pending in the High Court of Bombay. Under an ad interim order passed in that suit, on derequisition the property is to be restored to respondent No. 4 and has to be kept by him by way of interim measure.

4. The appellant challenged the order of requisition dated 17th April, 1958 in the writ petition filed by him in the High Court of Bombay. Apart from questioning the legality and validity or requisition, the appellant also sought restoration of possession of the premises in question. The challenge to the legality and validity of the requisition was based upon the decision of this Court in Grahak Sanstha Manch & Ors. v. State of Maharashtra1 where it has been held that the requisition cannot be for indefinite period and continuance of an order of requisition for a period of 30 years was unreasonable.

5. By judgment dated 19th January, 1999, a Division Bench of the Bombay High Court following the ratio of the case of Grahak Sanstha Manch has quashed the order of requisition dated 17th April, 1958. None has questioned the setting aside of the order of requisition. It is not in dispute that the said aspect has attained finality. The prayer for restoration of possession of the premises in question has, however, been declined by the High Court. In respect of the said prayer, the High Court has directed that the parties shall abide by the decision of this Court in Special Leave Petition No. 15788 of 1998.

6. The background leading to filing of Special Leave Petition No. 15788 of 1998 may be briefly noticed. After the decision in the case of Grahak Sanshtha Manch, the State of Maharashtra enacted Maharashtra Act No. XVI of 1997 amending the Bombay Rents, Hotel and Lodging House Rates Control, the Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996 w.e.f. 7th December, 1996. This amendment was declared unconstitutional by judgment of the Division Bench of the High Court of Bombay dated 27th July, 1998. Against the said judgment, the State of Maharashtra preferred Special Leave Petition No. 15788 of 1998 which has been granted and the dispossesion stayed by this Court in terms of orders 6th October, 1998. The order dated 6th October reads as under :-

"Leave granted. Printing dispensed with.

Hearing expedited.

It will be open to the parties to mention before the first court for fixing a date of hearing of these appeals. Pending hearing and final disposal of these appeals interim stay as to dispossession is granted. The stay is granted on the condition that the allottees who have been made tenants under the impugned legislation shall file and undertaking before this Court that in case they lose in these appeals they will pay monthly compensation at such rate as may be determined by this Court for the premises in their possession. The allottees shall file their undetakings within eight weeks from today."

7. In view of aforesaid order, the High Court in the impugned judgment observed that it is not possible to entertain the prayer for restoration of

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2000 Supreme(SC) 531

IMPORTANT POINT Maharashtra State Government employee continuing with the possession of the requisitioned premises even after the invalidity of the order of requisition dated 17.4.1958 and his retirement, cannot be treated as deemed tenant.

Cases Referred (1)

IMPORTANT POINT
Maharashtra State Government employee continuing with the possession of the requisitioned premises even after the invalidity of the order of requisition dated 17.4.1958 and his retirement, cannot be treated as deemed tenant.