The proviso to Section 5(1) of the Bombay Land Requisition Act, 1948, exempts residential buildings under construction and unsold flats in a Co-operative Housing Society formed under the Ownership Flats Act, 1963, from requisition.

DESHPANDE, J. :- This petition under Arts.226 and 227 of the Constitution of India is directed against an order of requisition dated 20th May 1976 passed under Bombay Land Requisition Act, 1948 (hereinafter referred to as the Act). The petitioner is a limited concern registered under the Companies Act. Constructing building and selling the flats therein is its business. For this purpose, the Company purchase plots, raise construction thereon consisting of several flats, and then sell the same to the needy purchasers for profit and then get a society of such purchasers formed under the Co-operative Societies Act of 1960 as required under the Maharashtra Ownership Flats (Regulation the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the Ownership Flats Act), in whose favour the Company executes the conveyance. The petitioner purchased a plot No. B/359 at Mount Pleasant Road and constructed a building thereon known as Rajat Apartments consisting of ground floor and six upper floors up to 43' from the Bench mark, comprising of 56 flats and 44 garages. A Co-operative Society of the purchasers of the flats was formed on the Feb., 1968 petitioners themselves having become member in respect of the unsold flats in terms of S.10 of the Ownership Flats Act. On 13th June, 1969, the petitioners executed a conveyance in favour of the said society named as 'Rajat Apartments Co-operative Housing Society'. Under the terms of the said conveyance deed, the petitioners reserved rights to raise two more floors, sell the flats therein for their benefit on condition of the said purchasers of the flats, agreeing to become members of the said society according to their bye-laws. The two floors were accordingly constructed by 1972 after the settlement of the dispute with a neighbouring society under a consent decree in Suit No. 58 of 1965 on the Original Side of this Court. All the flats excepting No. 82 on the 8th floor are now sold. Though the occupation certificate was obtained during the process of construction itself by 13-10-1970, the completion certificate was not obtained till 19th Apr., 1977 long after this writ petition was filed. According to the petitioners, flat No. 82 remained unsold due to their certain dispute with the society.

2. In response to the representations, the Government decided in 1957 not to exercise its power of requisition of residential quarters under the Act and made a statement to that effect on the floor of the Assembly. The Government, was, however, driven to withdraw the said commitment in 1975 and gave wide publicity to the same in the Newspapers. As flat No. 82 had remained unsold even by that time, and not occupied by any one, an intimation of vacancy was lodged by the petitioners on 25th July, 1975 under Section 6(2) of the Act under the impression of its applicability to the same. The Controller of Accommodation in reply called for certain details on 20th Apr., 1976 which were given immediately. The Respondent No. 3, however, passed the impugned order on 10th May, 1976, under Section 5 of the Act requisitioning the said flat. The validity of this requisition is challenged in this petition.

3. The respondents have filed two affidavits. It is unnecessary to refer to the same as the facts, relevant to the disposal of the points raised before us, are not in dispute.

4. Mr. R.C. Dalal, the learned Advocate for the Appellant challenges the validity of the order on the ground of want of notice and an opportunity, to show cause against the proposed requisition before the order was passed. It is not in dispute that, beyond asking details under its letter dated 20-4-1976 as to the name of the Society, the date of its registration and the name of the person in possession of the flat, the petitioner was never informed of the proposal as to requisition, nor was he ever called upon to show cause against the proposed requisition. Mr.

Gumaste, the Learned Advocate appearin