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2014 Supreme(Bom) 23
High Court of Judicature at Bombay
S.C. DHARMADHIKARI & REVATI MOHITE DERE, JJ.
B.C. Jhaveri & Another
Versus
The State of Maharashtra & Others
Writ Petition No.1008 of 2010
Decided On: 07-01-2014
For the Petitioners:D.H. Mehta, Adv. i/b. M/s. L.C. Tolat & Co. Advocates.
For the Respondents:R1 to R4, Shekhar Ingawale, AGP, R5, Vinay J. Hegde, Advocate.
Headnote:Bombay Land Requisition Act, 1948 - Section 9 - Bombay Rents, Hotel and Lodging H.R. Control Act, 1947, Sections 5 and 15-B - Writ petition challenging derequisition of flat. - Held, petitioner, cannot by way of writ petition, seek vacant and peaceful possession of flat which was requisitioned for benefit of occupant having statutory protection. In the present case the petitioner in the memo of the writ petition itself has stated that the respondent No. 5 is in possession of the premises since 1993. The petitioner corresponded with the authorities and obtained information about this respondent No. 5 and he was informed that the respondent No. 5 has been put in possession by the respondent No. 4 because he was serving as Assistant Police Inspector since 1993 at Dharavi Police Station. It has been stated before Court that the respondent No. 5 has not retired but continues in Government service. If the respondent No. 5 continues in Government service and is in possession of the premises prior to the amendment Act being brought into effect then, there is definitely a relationship created between him and the present petitioners.
The petitioners in this case cannot by means of the present writ petitions therefore, claim vacant and peaceful possession of the said flat. They cannot request the writ Court to pass an order or direction directing respondent Nos. 1 to 5 to handover vacant and peaceful possession of the said flat to them. The order of derequisitioning the said flat passed in favour of the petitioner cannot be enforced and executed after the subsequent developments noted above. The respondent No. 4 claims statutory protection and through him the respondent No. 5 claims to be in legal possession. In such circumstances the remedy of the petitioner would be to terminate the rights claimed by these respondents and recover possession of the said flat from them in accordance with law. The writ petition is not the remedy to claim such a relief as rightly urged by Mr. ‘I‘ and Mr. ‘H‘. The petitioners at best would be entitled to the amount of compensation deposited till date with the Government and which the Government should handover to the petitioner within a period of four weeks from the date of the receipt of this order. The petitioners may accept it without prejudice to their rights and contentions to recover possession of the said flat in accordance with law.
Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 - Sections 5 and 15-B [as amended in 1995] - Effect of Amendment Act, 1995. - Held, since validity of Amending Act, 1995 is upheld by the Apex Court, hence Government allottees became tenants of requisitioned premises. The definition of word "Government allottee" has two parts and if any premises requisitioned or continued under requisition or allotted by the State Government for a residential purpose to any person and such person on the date of the Amendment Act coming into force or his legal heir is allowed to remain in occupation or possession for his or such legal heirs residence then, the government allottee becomes a tenant of the landlord and such premises are deemed to be let by the landlord to the State Government or as the case may be to such government allottees on payment of rent. Once the Amendment Act has been upheld by Supreme Court, then it has to be given full effect.
By virtue of Amendment Act, Commissioner of Police is protected as deemed tenant of the requisitioned premises. It is the Commissioner who has allowed Assistant Police Inspector to remain and occupy said flat as member of the Bombay Police Force. It is therefore Commissioner of Police who will get protection and by virtue of the order made in favour of Assistant Police Inspector the possession of Commissioner cannot be said to be unlawful or illegal.
1. By this Writ Petition under article 226 of the Constitution of India the Petitioners pray for issuance of a Writ of Certiorari or any other Writ in the nature thereof to call for all records and thereafter direct that possession of Flat No.3, admeasuring about 730 Sq. ft. situate at on the first floor of building known as Parna Kutir, Plot No.23, Nagardas Plot Scheme, S.No.31 H.No.1(part) Revision Survey No.28, Andheri, Mumbai 400 069. (for short 'said flat') be handed over to them.
2. The facts necessary to appreciate the nature of the relief are that the Respondent Nos.1 to 3 are the authorities exercising powers under the Bombay Land Acquisition Act, 1948. The Respondent No.4 is the Commissioner of Police for whose benefit this said flat was requisitioned by Respondent Nos.1 to 3. Respondent No.5 is the present occupant of the said flat.
3. It is undisputed that the said flat was requisitioned by Respondent Nos. 1 and 3 prior to 1962 for the benefit of Respondent No.4. It is claimed that the Respondent No.4 was the government allottee of the said flat.
4. It is stated that the Hon'ble Supreme Court delivered a judgment in the case of H. D. Vora V. State of Maharashtra reported in AIR 1984 SC Pg. 866. In terms of that judgment the requisitioned flats or immovable property cannot be continued to be requisitioned indefinitely. Therefore, the Petitioners who are claiming to be the owners of this said flat issued a notice through advocate dated 15th November, 1997 calling upon the Respondent Nos.1 to 4 to derequisition the said flat and hand over vacant and peaceful possession of the same to them.
5. The Petitioners complained that the Respondent Nos.1 to 4 failed and neglected to comply with the requisition contained in the Advocate's notice. Therefore, a Writ Petition was filed in this Court being Writ Petition No.14 of 1998. In that Writ Petition an order was passed on 27th July, 1998 inter-alia directing the Respondent Nos.1 to 4 to hand over vacant and peaceful possession of the said flat to the Petitioners.
6. The order passed in Writ Petition No.14 of 1998 and connected matters was challenged in the Hon'ble Supreme Court of India by Welfare Association ARP Maharashtra and another being CA No.5168 of 1998. By judgment and order dated 18th February, 2003 this appeal was disposed off and the Hon'ble Supreme Court upheld the constitutional validity of an Act amending the Bombay Land Requisition Act, 1948 so also the Bombay Rent, Hotel And Lodging House Rates Control Act, 1947 for short the Land Requisition and the Bombay Rent Act.
7. The Petitioners submit that they visited offices of the Respondent Nos.1 to 4 repeatedly and even after the Supreme Court judgment to make enquiry as to when they would take necessary steps to derequisition and hand over peaceful possession thereof.
8. The Petitioners were informed that requisite steps in terms of the Hon'ble Supreme Court judgment would be taken by the Respondents.
9. The Petitioners waited for considerable time and subsequently addressed a notice through the advocate on 2nd January, 2009 and after recording the above facts once again called upon all Respondents including Respondent No.5 to hand over vacant possession of the said flat. They also filed an application under Right to Information Act, 2005 (for short RTI Act). Copy of the advocate's letter is marked annexure 'A' whereas the copy of the application under RTI is marked annexure 'B'.
10. The Petitioners submit that the administrative officer of the Respondent No.3 by his letter dated 13th May, 2009 furnished some particulars to the Petitioners. It was stated that the said flat has been handed over to Siddharth Digambar Hanchate (Respondent No.5) since 1993. He has been occupying the flat and there is no information of the occupants since 1962.
11. The Petitioners, therefore, filed an appeal under RTI Act and a copy of the memo of the appeal is annexure 'D' to the petition. The appeal was disposed off on 6th August, 2
