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PETITIONER:

KUNAL & CHAUDHARI

Vs.

RESPONDENT:

PURSHOTTAM B. TODI & ANR.

DATE OF JUDGMENT: 11/03/1997

BENCH:

B.P. JEEVAN REDDY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:

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

J U D G M E N T

The following Judgment of the Court was delivered:

J U D G M E N T

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

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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

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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

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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

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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:

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(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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