Kunal
& Chaudhari Vs. Purshottam B. Todi & ANR [1997] INSC 280 (11 March
1997)
B.P.
JEEVAN REDDY, G.T. NANAVATI
ACT:
HEADNOTE:
THE
11TH DAY OF MARCH, 1997 Present:
Hon'ble
Mr. Justice B.P. Jeevan Reddy Hon'ble Mr. Justice G.T. Nanavati S.K. Dholakia,
Sr. Adv., Randhir Jain, and S.S. Mishra, Advs. with him for the appellant S. Ganesh,
S.R. Setia and L.C. Tolat, Advs. for the Respondent D.M. Nargolkar, Adv. for
the State
The
following Judgment of the Court was delivered:
B.P.
JEEVAN REDDY. J.
This
application has been filed by the petitioner in Special Leave petition (C) No.
16184 of 1996 which was dismissed at the admission stage on 26th August, 1996. While dismissing the special leave
petition, this Court had given six months' time for the applicant to vacate the
premises and deliver vacant possession to the respondent-landlord. It was
specified that the said six months will expire on 26th February, 1997. The applicant was also directed to file the usual
undertaking within four weeks-which he did. the applicant says that in vie of
the subsequent legislation, namely, the Maharashtra Ordinance No. 23 of 1996
[which has been later enacted into an Amendment Act] amending the provision of
the Bombay Rents, Hotel and Lodging Houses Rates [Control] Act, 1997 [Bombay
Rent Act], The Bombay land Requisition Act, 1948 and the Bombay Government
Premises [Eviction] Act, 1955, creating the statutory relationship of landlord
and tenant between the applicant and the first respondent [owner of the
premises concerned herein], he should be discharged from the said undertaking.
He says, he is entitled to continue in the premises as a statutory tenant.
The
premises in question, belonging to the first respondent, were allotted to the
applicant's mother in the year 1958 by the Government of Maharashtra under the Bombay land Requisition Act. After the
death of his mother in 1974, the applicant continued in possession. The
applicant is not a Government servant but was allotted the same, being a
homeless person, under what is called the "suppressed vacancy
scheme".
In the
year 1988, the first respondent filed a writ petition in the Bombay High Court
being Writ Petition No. 1881 of 1988 for a writ of mandamus directing the
Government of Maharashtra to derequisition the said premises and to hand over
the possession of the same to hm. While the said writ petition was pending, a
constitution Bench of this Court held in Grahak Sanstha Manch v. State of Maharashtra
[1994 (4) S.C.C. 192] that the power to requisition under the Bombay Land Requisition
Act cannot be exercised so as to deprive the landlord of the possession of the
premises indefinitely or for an inordinately long time. The Court pointed out
the distinction between acquisition and requisition and according directed the
premises requisitioned long ago to be re-requisitioned within a period of eight
months. The writ petition filed by the first respondent was allowed by the
Bombay High court on 3rd
July, 1996, following Grahak
Sanstha Manch. The High Court directed the State Government "to pass an
order of de- requisition and hand over possession of the premises in question
to the petitioner on or before 30th August, 1996".
It is
against the said decision that he applicant had filed the aforesaid special
leave Petition (C) No. 16184 of 1996 which was dismissed by this Court while
granting time till 26th February, 1997 to vacate the premises and deliver
vacant possession of the same to the landlord.
The Maharashtra
Ordinance relied upon by the applicant amends three enactments, namely, Bombay
Rent Act, Bombay land requisition Act and Bombay government Premises [Eviction] Act,
1955. It would be appropriate to notice the Statement of objects and Reasons
appended to the said ordinance which would facilitate a proper understanding of
the amended provisions. The Statement of objects and Reasons refers to the
decision in Grahak Sanstha Manch, as a consequence of which a large number of
Government servants and others occupying requisitioned premises were obliged to
vacate and hand over the premises to State Government before the specified
date. The Statement points out that there are as many as 604 residential
premises and about 90 non- residential premises which are still under
requisition in the Greater Bombay and about 138 in other districts. It refers
to the fact that several landlords have already approached the High Court
seeking eviction of allottees of the requisitioned premises and for
de-requisitioning their premises and that those writ petitions are likely to be
allowed. The Statement then says that the Government consider it expedient, in
greater public interest, to make suitable provision for providing the
protection of statutory tenancy under the Rent Act to the State Government and
to its allottees and that it is for achieving the said purpose that the
ordinance is being issued.
We may
now notice the amendments effected to the Bombay Rent Act. Section 2 of the
ordinance has inserted clause (1A) in Section 5 defining the expression
"Government allottee". The definition comprises two clauses - (a) and
(b). Clause (a) refers to the Government servants who are allotted the
requisitioned premises and clause (b) relates to others to whom the
requisitioned premises have been allotted. It would be sufficient for our
purposes to not clause (b) alone. It reads :
"(1A)
'Government Allottee'.-- ........................
(b) in
relation to any premises requisitioned or continued under requisition which are
allotted by the State Government which are 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) Ordinance, 1996, such person or his legal heir is
allowed by occupation or possession of such premises for his or such legal
heir's own residence, means such person or legal heir." (Emphasis
supplied) Section 3 of the Ordinance has inserted Section 15B, which reads as
follows:
"15B.
(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) Ordinance, 1996 (hereinafter in this section referred to
as the `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 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 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-clause (1);
(c) the
operation and the application of the other relevant provisions of this Act in
respect of such tenancy." [Emphasis supplied] Section 5 of the Ordinance
has added sub-section (8) in Section 9 of the Bombay Land Requisition Act,
1948. Sub- section (8) reads thus:
"(8)
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) Ordinance, 1996, all the premises requisitioned or continued
under requisition under this Act and allotted to Government allottees who, on
the said date were allowed by the State Government to continue or to remain in
occupation or possession of such premises, shall be deemed to have been
released from requisition, and in respect of such premises the State
Government, or as the case may be, the Government, or as the case may be, the
Government allottees referred to in clause (b) of the Explanation, shall become
the tenants by virtue of the provisions of section 15B of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 and the compensation, if any,
due in respect of such premises shall be determined and paid to the persons
entitled thereto as if such premises were actually released under this section.
Explanation.--
For the purposes of this sub-section, the expression `Government allottee'--
(a) in relation to any premises requisitioned or continued under requisition
which are allotted by 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 co- operative 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) Ordinance, 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)
Ordinance, 1996, 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 of such legal heir's residence, means such person or legal heir."
[Emphasis supplied] The Bombay Government premises [Eviction] Act, 1955 was
also correspondingly amended.
The
applicant's case is that by virtue of the aforesaid amended provisions, he has
become a statutory tenant under the first respondent and, therefore, he should
be discharged from the undertaking given by him to this Court pursuant to the
Orders of this Court dated 26th August, 1996. In short, he says that he should
not be called upon to vacate the said premises and deliver vacant possession
thereof to the first respondent in view of the new statutory relationship
created by the amended provisions.
The
application is stoutly oppossed by the first respondent.
When
this application came up for hearing, we indicated to Sri Dholakia, learned
counsel for the applicant, that two alternate courses are open to him. One is
to vacate the premises in accordance with the undertaking given by him to this
Court and work out his rights under the amended provisions according to law.
The other is to rely upon the amended provisions and say that in view of the
said provisions, he should be discharged from undertaking and that he should be
allowed to continue in possession of the said premises by virtue of the amended
provisions. Sri Dholakia chose the second course and accordingly we are
expressing ourselves on the applicant's claim that by virtue of the amended
provisions, he has become the statutory tenant of the premises under the first
respondent-landlord.
The
definition of "Government allottee" in clause (1A) in Section 5 of
the Bombay Rent Act, as already pointed out, comprises two clauses, viz., (a)
and (b) and that the applicant claims to fall under clause (b) [Admittedly, he
does not fall under clause (a)]. But for falling two requirement:
(1)
The requisitioned premises are allotted by the State Government to him for
residential purpose and (2) on the date of coming into force of the said
Ordinance, the applicant "is allowed by the State Government to remain in
occupation or possession of such premises for his....residence". The
definition of "Government allottee" in the explanation appended to
sub-section (8) of Section 9 of the Bombay Land Requisition Act is in the same
terms. The Ordinance was issued on and commenced on December 7, 1996.
The
question is whether it can be said that on 7th December, 1996 the applicant is a person who
"is allowed by the State Government to remain in occupation or possession
of the said premises for his residence"? We think not. pursuant to the
judgment of the High Court dated 3rd July, 1996 allowing Writ Petition No.1881
of 1988, it is pointed out by Sri S. Ganesh learned counsel for the first
respondent, the Government of Maharashtra has passed two Orders. Under the
Order dated 24th July,
1996, the applicant
was called upon to vacate the premises and hand over the same to the Government
so as to enable it to de-requisition the said premises and deliver possession
of the same to the landlord as directed by the High Court. Subsequently, on 17th August, 1996, the Government of Maharashtra made
an Order under Section 11(1) of the Bombay Land Requisition Act authorizing the
area Sub-Inspector in the office of the Controller of Accommodation to take
vacant possession of the said premises from the applicant on or before 30th August, 1996. The area Sub-Inspector was
empowered to use such force as may be reasonably necessary for the said
purpose. The said Order could not, however, be implemented or executed for the
reason that this Court by its Order dated 26th August, 1996 permitted the applicant to remain
in occupation of the premises till 26th February, 1997. It is obvious that but for the
said Order of this Court, the area Sub-Inspector would have evicted the
applicant from the said premises. In any event, the authority of the applicant
to occupy the premises by virtue of the allotment Order made by the State
Government came to an end on 30th August, 1996
was one "allowed" by the State Government. It was wholly and
exclusively attributable to the Order of this Court dated 26th August, 1996. To repeat, as on 7th December,
1996 [the date of Ordinance] the applicant was not a person who "is
allowed by the State Government to remain in occupation or possession of such
premises for his residence", which means that he does not fall within the
definition of "Government allottee" contained in clause (1A) in
Section 5 of the Bombay Rent Act. He cannot, therefore, take advantage of
Section 15B of the said Act. For the same reason, he cannot also seek to take
benefit of sub-section (8) of Section 9 of the Bombay Land Requisition Act,
1948.
For
the above reasons, the contention that the applicant has become a statutory
tenant under the first respondent by virtue of the aforesaid Ordinance
[subsequently enacted into an Act*] is unsustainable in
------------------------------------------------------------ * We may mention
that though the Maharashtra Legislature is stated to have enacted an Act in
terms of the Ordinance, We were referred by the learned counsel for both
parties only to the provisions of the Ordinance on the ground that provisions
of both the Ordinance and the Amending Act are identical.
law
and is rejected herewith. Interlocutory Application shall pay the costs of the
respondent assessed at Rupees two thousand and five hundred only.
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