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PETITIONER: MAHESHCHANDRA TRIKAMJI GAJJAR

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       09/03/2000

BENCH: K.T.Thomas, Y.K.Sabhwarwal

JUDGMENT:

     Y.K.SABHARWAL J.

     Leave granted.

     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 the order of requisition having  been set  aside and respondent no.3 having retired from  service, is the question for consideration before us.

     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  and 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.

     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 of 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  Maharashtra [(1994)  4  SCC  192]  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.

     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

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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.

     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 Sanstha 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 dispossession 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  an  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  undertakings within eight weeks from today."

     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 possession for which the  party  shall  abide  by the  decision  of  this  Court. Respondent no.3 was directed, however, to deposit the amount of  compensation in Suit No.  4120 of 1994 without prejudice to the rights and contentions of the parties.

     In this appeal, the challenge to the impugned judgment is to the extent it declines the prayer of the appellant for restoration  of  possession  of the  premises  in  question. Learned  counsel for the appellant submits that assuming the amendments  inserted under Maharashtra Act No.XVI of 1997 to be  valid,  respondent  no.3  will still have  no  right  to continue  in  occupation of the premises.  For  the  present purposes,  we  would  assume  the  amendments  to  be  valid (leaving  the question of the constitutional validity to  be determined  in  appeal arising out of SLP(C) No.   15788  of 1998  and on that basis examine the contention of respondent no.3 to continue in possession of the premises.

     By  Amendment  Act  No.XVI  of  1997,  the   statutory protection  was  sought to be given to the allottees of  the requisitioned premises by providing for the State Government or  the Government allottees becoming deemed tenants of  the

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requisitioned  premises.  By the Amendment Act, clause (1A), defining  ‘Government  allottee’ was inserted.  Another  new provision  inserted was Section 15B providing for the  State Government  or  Government  allottees to  become  tenant  of premises  requisitioned  or   continued  under  requisition. Section 5(1A) and Section 15B read as under :-

     "Section 5(1A) - Government allottee - (a) in relation to any premises requisitioned or continued under requisition which  are  allotted  by the State Government for  any  non- residential purpose to any department or office of the State Government  or  Central  Government  or  any  public  sector undertaking  or  corporation  owned or controlled  fully  or partly  by  the State government or any cooperative  society registered under the Maharashtra Co-operative Societies Act, 1960  or any foreign consulate, by whatever name called, and on  the date of coming into force of the Bombay Rents, Hotel and Lodging House Rates Control, Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996, are  allowed  by  the State government to  remain  in  their occupation  and possession, means the principal  officer-in- charge  of  such  office  or  department  or  public  sector undertaking or corporation or society or consulate;  and

     (b)  in  relation  to any  premises  requisitioned  or continued  under requisition which are allotted by the State Government  for residential purpose to any person and on the date  of  coming into force of the Bombay Rents,  Hotel  and Lodging  House  Rates Control, Bombay Land  Requisition  and Bombay Government Premises (Eviction) (Amendment) Act, 1996, such  person  or  his  legal heir is allowed  by  the  State Government  to  remain in occupation or possession  of  such premises  for his or such legal heir’s own residence,  means such person or legal heir;"

     "Section 15B - State Government or Government allottee to  become  tenant  of premises requisitioned  or  continued under requisition-

     (1)  On  the date of coming into force of  the  Bombay Rents,  Hotel  and Lodging House Rates Control  Bombay  Land Requisition   and  Bombay   Government  Premises  (Eviction) (Amendment)  Act, 1996 (hereinafter in this section referred to as ‘the said date’), -

     (a)  the State Government, in respect of the  premises requisitioned or continued under requisition and allotted to a  Government  allottee  referred to in sub- clause  (a)  of clause (1A) of section 5;  and

     (b)  the  Government  allottee,  in  respect  of   the premises  requisitioned  or continued under requisition  and allotted  to him as referred to in sub-clause (b) of  clause (1A) of section 5,

     shall, notwithstanding anything contained in this Act, or in the Bombay Land Requisition Act, 1948, or in any other law  for the time being in force, or in any contract, or  in any  judgement,  decree or order of any court passed  on  or after the 11th June, 1996, be deemed to have become, for the purposes  of this Act, the tenant of the landlord;  and such premises shall be deemed to have been let by the landlord to the  State  Government  or,  as the case  may  be,  to  such Government  allottee,  on  payment  of  rent  and  permitted increases  equal  to the amount of compensation  payable  in

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respect of the premises immediately before the said date.

     (2)  Save as otherwise provided in this section or any other  provisions of this Act, nothing in this section shall affect, -

     (a)  the rights of the landlord including his right to recover  possession of the premises from such tenant on  any of  the  grounds  mentioned in section 13 or  in  any  other section;

     (b)  the right of the landlord or such tenant to apply to the court for the fixation of standard rent and permitted increases  under  this Act, by reason only of the fact  that the  amount of the rent and permitted increases, if any,  to be  paid by such tenant to the landlord is determined  under sub-section (1);

     (c)  the  operation and the application of  the  other relevant provisions of this Act in respect of such tenancy."

     In  Writ Petition No.  98 of 1997 and other  connected writ  petitions  titled  Ravi  Ramakrishnan  Subramanyam  v. State  of Maharashtra & Ors, a Division Bench of Bombay High Court  in terms of its judgment dated 30th January, 1997 had held  that for getting benefit of becoming a deemed  tenant, the  person  has  to satisfy that :  (1)  the  requisitioned premises   were  allotted  by   the  State  Government   for residential purposes.

     (2)  on  7th December, 1996, such person or his  legal heir was in occupation or possession of such premises.

     (3)  such  person or his legal heir is allowed by  the State  Government  to remain in occupation or possession  of such  premises.  If an eviction order under the  Requisition Act  is passed by the Competent Authority, it cannot be said that  the State Government has allowed such person to remain in  occupation  or possession of such premises or  that  the said  person  is allowed to remain in lawful  occupation  or possession.    After  the  eviction   order  passed  by  the competent  authority,  which becomes final under the  Bombay Requisition Act, it cannot be said that to such an allottee, permission is granted by the State Government to continue in such  occupation.  Orders passed by the Competent  Authority under the Requisition Act are not nullified.

     (4)  As  against  this,  a person  would  get  benefit notwithstanding any judgement, decree or order passed by the Court  after  11th June, 1996.  However, if  the  judgement, decree  or  order is passed prior to 11th June, 1996, it  is not  nullified.   Therefore,  the  allottee  would  not  get benefit  of  his provision if judgement, decree or order  is passed prior to 11th June, 1996 even in case where the Court has  granted  time  for  vacating  the  premises  after  7th December, 1996.

     The  aforesaid decision of Bombay High Court  resulted in  issue  of  the Bombay Land Requisition  and  the  Bombay Government  Premises  (Eviction)(Amendment) Ordinance,  1997 (Maharashtra Ordinance No.  XX of 1997) dated 26th December, 1997  thereby  making amendments in Bombay Rents, Hotel  and Lodging   House   Rent  Control   Act,  1947,  Bombay   Land Requisition  Act,  1948  and   Bombay  Government   Premises

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(Eviction)  Act,  1955.  The relevant part of the  Ordinance which,  we have been told by learned counsel for  respondent no.3 became an Act later, reads as under :-

     "2.  Amendment of Section 5 of Bom.LVII of 1947 ??  In section 5 of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 (hereinafter referred to as ‘the principal Act’), in clause (1A)??

     (a)  in sub-clause (a), for the words ‘are allowed  by the  State  Government  to remain in  their  occupation  and possession’   the   words  ‘are  in  their   occupation   or possession’  shall  be  and  shall be deemed  to  have  been substituted with effect from the 7th December, 1996;

     (b)  in sub-clause (b), for the words ‘such person  or his  legal heir is allowed by the State Government to remain in occupation or possession of such premises for his or such legal  heir’s  own residence’ the words ‘such person or  his legal  heir is in occupation or possession of such  premises for  his  or such legal heir’s own residence’ shall  be  and shall  be  deemed to have been substituted with effect  from the 7th December, 1996.

     3.   Amendment  of section 15B of Bom.LVII of 1947  ?? In  section  15B of the principal Act, in  sub-section  (1), after  the  figures, letters and words ‘11th June 1996’  the words and figures ‘or in any order of eviction issued by the Competent Authority or by the Appellate Authority, under the Bombay  Land  Requisition Act, 1948’, shall be and shall  be deemed  to  have  been  inserted with effect  from  the  7th December, 1996.

     4.   Amendment  of section 9 of Bom.XXXIII of 1948  ?? In  section  9 of the Bombay Land Requisition Act, 1948,  in sub-section (8), ??

     (a)  for  the  words  ‘were   allowed  by  the   State Government  to  continue  or  to  remain  in  occupation  or possession  of such premises’ the words ‘were in  occupation or possession of such premises’ shall be and shall be deemed to  have been substituted with effect from the 7th December, 1996.

     (b) in the Explanation,??

     (i)  in clause (a), for the words ‘are allowed by  the State   Government  to  remain  in  their   occupation   and possession’   the   words  ‘are  in  their   occupation   or possession’  shall  be  and  shall be deemed  to  have  been substituted with effect from the 7th December, 1996;

     (ii)  in clause (b), for the words ‘such person or his legal  heir is allowed by the State Government to remain  in lawful occupation or possession of such premises for his own or  such  legal heir’s residence’ the words ‘such person  or his  legal  heir  is  in occupation or  possession  of  such premises  for his or such legal heir’s own residence’  shall be  and shall be deemed to have been substituted with effect from the 7th December, 1996.

     5.   Amendment  of section 2 of Bom.II of 1956 ??   In section  2 of the Bombay Government premises (Eviction) Act, 1955,  in clause (b) for the words ‘are allowed by the State Government to remain in their occupation and possession’ the

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words  ‘are in their occupation or possession’ shall be  and shall  be  deemed to have been substituted with effect  from the 7th December, 1996.

     6.   Removal of doubt ??  For the removal of doubt, it is hereby declared that the conferral of tenancy rights on a Government  allottee  under the provisions of the  principal Act  as amended by this Ordinance shall not have the  effect of  setting  aside the decision of a court inter  partes  to which  effect  has already been given, or in any way  affect the  undertaking  given  by or on behalf of  any  Government allottee in the court.

     The  contention  urged on behalf of the  appellant  is that  none  of the aforesaid amendments create any right  in favour  of respondent no.3 who retired from service on  30th September,  1993, to continue with possession of premises in question  even after retirement.  Despite these  amendments, respondent no.3 cannot be treated as a ‘Government Allottee’ and, a deemed tenant, is the contention.

     The continued requisition for a period of 30 years was held  to be unreasonable by this court in the case of Grahak Sanstha  Manch.  The effect of the said decision would  have been  the  vacation of the premises by the State  government and the Government allottees on account of invalidity of the order   of  requisition.   With  a  view  to  overcome   it, Maharashtra  Act  XVI  of 1997 was enacted.  That  has  been declared  unconstitutional by the High Court but appeals are pending  in this Court.  For the present purposes, we assume these  amendments  to be valid.  Would section 5(1A) make  a retired  person  a Government allottee?  The  amendment  was inserted  w.e.f.   7th December, 1996.  Respondent no.3  had already  retired nearly three years earlier.  In the present case,  we  are  concerned with clause (b) of  Section  5(1A) which  inter alia deals with requisitioned premises that are allotted  for  residential  purposes.   Allowing  a  retired person to indefinitely remain in occupation or possession of the  requisitioned  premises  was  not  the  object  of  the amendments.   It is also not possible to read clause (b)  in such  a  manner  on its plain language.   The  Statement  of Objects and Reasons for Amendment Act XVI of 1997 inter alia provides  as under :- "1.  The Bombay Land Requisition  Act, 1948  is  enacted  to provide for requisition  of  land  for relieving the pressure of accommodation, especially in urban areas,  by  regulating distribution of vacant  premises  for public  purposes, and for certain other purposes  incidental thereto.   Certain premises which have been requisitioned or continued  under  requisition under the said Act  have  been allotted  for non-residential purpose to many departments or offices  of  the States Government or Central Government  or public sector undertakings, corporations owned or controlled fully  or  partly  by the State  Government  or  cooperative societies  or foreign consulates and for residential purpose to  different categories of persons such as employees of the State  or  Central government, public  sector  undertakings, corporations,  or  homeless  persons, etc.   Many  of  these premises  have since been derequisitioned by the Government, as  per  Court  orders  or having regard  to  certain  other circumstances.   But still there are quite a large number of allottees  in  occupation of such premises, for a number  of years,  on  payment of compensation as determined under  the said Act.  The allottees of such premises include Government servants who are still in Government service and others.

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     2.   Under the existing provisions of section 9 of the Bombay  Land Requisition Act, 1948, as last amended by  Mah. Act  No.   VII  of  1995,   the  premises  which  have  been requisitioned  on or before 27th December, 1973 will have to be released from the requisition on or before 26th December, 1997  and  those  which have been requisitioned  after  27th December,  1973,  within twenty-four years from the date  on which  possession of such land was surrendered or  delivered to,  or taken by, the State Government.  Further the Supreme Court  in  Writ  Petition  No.  404 of  1986  filed  by  the Association  of Allottees of the Requisitioned premises  and Writ  Petitions No.  53 of 1993 and 27 of 1994 filed by  the Grahak  Sanstha  Versus  State of Maharashtra, has  given  a final  decision  on  the  27thApril 1994 in  the  matter  of requisitioned  premise  [AIR 1994, SC, 2319], upholding  the decision  in the H.D.Vora’s case [(1984) 2 SCC 337] and  has directed  that the occupants of the requisitioned  premises, the  continued requisition of which was quashed, were  bound to  vacate and hand over vacant possession of such  premises to  the State Government on or before 30th November, 1994 so that  the  Government could derequisition such premises  and hand  over  the vacant possession thereof to the  landlords. Accordingly,  derequisitioning  process, in respect  of  all such  premises  and applying the ration of the said  Supreme Court  Judgment, in several other premises, has already been completed  by the State Government.  There are, however,  as aforesaid,  nearly  604  residential premises and  about  90 non-residential  premises which are still under  requisition in  Brihan  Mumbai and 138 in other districts which  include requisitioned  premises allotted to Government servants  who are still in Government service and others.  3.  As a matter of  policy, the State Government has stopped  requisitioning of  new premises except in some special cases.  As a  result of  this policy and also due to, continued acute shortage of accommodation  with Government and astronomical rise in  the cost  of properties in Mumbai, it would not be possible  for Government to give suitable alternative accommodation to all such  allottees  if, applying the ratio of the said  Supreme Court  Judgment  the  Government  has   to  vacate  all  the requisitioned premises.  The situation is, therefore, likely to   result  in  the   Government  allottees  presently   in occupation  of  the  requisitioned premises  being  rendered without  any  office  accommodation  or  homeless.   It   is imperative to find a solution to this grave situation and to give some kind of statutory protection to these allottees of the requisitioned premises.

     4.  As the landlords are generally unwilling to accept such Government allottees as contractual tenants, on payment of  the  standard rent and permitted  increases,  Government considers  it expedient, in greater public interest, to make suitable   provisions  for  providing   the  protection   of statutory tenancy under the Rent Act to the State Government and  to  such  Government allottees;   and  consequently  to provide for the release of such premises from requisition.

     5.  As many landlords have already approached the High Court  seeking  eviction  orders  of the  allottees  of  the requisitioned  premises  and the possibility of others  also approaching  the  Court for such eviction orders  cannot  be ruled  out,  thereby  frustrating the very  object  of  this legislation,  it is also considered expedient to provide  in the  proposed  section  3  of   this  Ordinance  that,  such conferral of statutory tenancy rights on the allottees shall not  be affected by any eviction orders passed by the  Court

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on  or  after  11th  June,  1966  (being  the  date  of  the Government decision to undertake such legislation)."

     It is evident that the object 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.   If  the  contention of respondent no.3  that  he became  a  deemed  tenant on account of  1997  amendment  is accepted,  it  would  show that the Government  intended  to confer   a   special  benefit   of   providing   residential accommodation to occupants of requisitioned accommodation as a superannuation benefit.  That is clearly not the object of the  amendments.   If that was so, there would be a  special class  of  employees.   A class that is allotted,  while  in service,  with  accommodation which is  requisitioned  which class  would get the special benefit even on superannuation. This class will become tenant under the original owner after retirement with the benefits of all protections under Bombay Rents  Hotel and Lodging House Rent Rates Control Act, 1947. Their  heirs  and successors may also subject themselves  to eviction  only  on  proof  of one or  the  other  ground  of eviction  provided  in the Act.  Thus, if one  is  fortunate enough to be allotted accommodation out of the requisitioned premises  while in service, he gets by way of superannuation gift,  the continued tenancy and others who may not be  that fortunate  to  get allotment of such premises, will have  to vacate  Government  accommodation as per the relevant  rules after  retirement.   We  are  unable to  attribute  such  an intention  to the aforesaid amendments.  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.

     The  other  contention urged on behalf  of  respondent no.3  that he is entitled to continue in possession in  view

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of the Stay order granted by this Court on 6th October, 1998 is  also without substance.  The said order 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.

     In  view  of  the  aforesaid,  we  do  not  find   any justification  in  respondent  no.3   continuing  with   the possession  of  the premises in question.   Accordingly,  we direct him to restore possession of the premises in question in  favour  of  the  appellant  and  respondent  no.4.   The possession  will be delivered to respondent no.4 in view  of the  orders  passed in suit for partition No.  4120 of  1994 subject to any further orders that may be passed in the said suit.   Respondent  no.3  is granted three months’  time  to vacate  and  hand over possession to respondent  no.4.   The appeal  is allowed in the above terms leaving the parties to bear their own costs.