Bombay High Court
Cysil Ribeiro vs The State Of Maharaswhtraand Ors on 23 April, 2025
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
2025:BHC-OS:6793
wp3650-88.doc
TRUSHA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TUSHAR
MOHITE ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2025.04.23
17:58:12 +0530
WRIT PETITION NO.3650 OF 1988
Cyril Ribeiro .. Petitioner
Versus
The State of Maharashtra and Ors. .. Respondents
Mr. Amogh Singh a/w Mr.Santosh Pathak, Mr.Chirag Thakkar,
Mr.Nimish Lotlikar i/b M/s.Law Origin, Advocate for the Petitioner
Mrs.Palsuledesai, A.G.P. for the State
Mr.A.S. Khandeparkar, Sr.Advocate a/w Ms.Sneha Phene, Ms.Shilpa
Joshi, Mr.K.J.Tiwari, Advocate for the Respondent Nos.3.
CORAM: G.S.KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON: 24th OCTOBER, 2024
PRONOUNCED ON: 23rd APRIL, 2025
Judgement: (Per FIRDOSH P. POONIWALLA, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent
of the parties.
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2. The present Writ Petition seeks the following final reliefs:
(a) that this Hon’ble Court may be pleased to issue a
writ of Mandamas of a Writ in the nature of
Mandamus or any other appropriate writ direction or
order under Article 226 of the Constitution of India
against the Respondent Nos.1 and 2 its officer,
subordinates, servants and agents to forebear from
continuing flat No. G1 on the ground floor of Beacon
Building situate at Plot No.144. TPS Corner of west
and South Avenue Santacruz (West) Bombay 400054
under requisition and to release the said flat from
requisition and hand over possession of the same to
the Petitioner.
(a1) that this Hon’ble court be pleased to exercise
jurisdiction under Article 266 of the constitution of
India and to issue a Writ of mandamus or writ in the
nature of mandamus or any other appropriate writ,
order or direction ordering and directing the
Respondents, their offices servants and agents to
within 3 months or within such time as this Hon’ble
court may deem fit to grant to respondent No.3, hand
over to the Petitioner quiet vacant and peaceful
possession of the Flat No.G-1, Ground floor,
“Beacon”, at Plot No.144 TPS Corner of west and
south, R.K. Mission Marg Avenue, santacruz (west)
Mumbai-400054;
3. The Petitioner is the owner of Flat No.G-1 on the Ground Floor
of the building known as Beacon situated at Plot No.144, TPS Corner of West
& South Avenue, Santacruz (W), Mumbai. ( hereinafter referred to as “Flat
No.G-1”).
4. The Petitioner’s father, one Nicholas V.Ribeiro was the owner of
the said building Beacon. As Nicholas V.Ribeiro was a front officer serving
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outside Bombay, the said property was being looked after and managed by
Mrs.M.A.Ribeiro, the mother of Nicholas Ribeiro. Mrs.Ribeiro, being
desirous of letting out South flat No.1 on the top floor of the Beacon building
to one A.R.Moraes, gave an intimation to the Controller of Accommodation of
the State of Bombay (Respondent No.2) as required under Section 6 (1) of the
Maharashtra Land Requisition Act, 1948 (“the Requisition Act”).
5. By an Order dated 23rd August 1949, the said South flat was
requisitioned by the then Government of Bombay in exercise of the powers
conferred on it under Section 6 of the Requisition Act.
6. By an Order dated 23 rd August 1949, the said flat was allotted to
one B.P.Nayak.
7. By an Agreement dated 6 th January 1978 entered into between
Nicholas Ribeiro, as the Vendor, and one Akhtar Hasan Rizvi, trading in the
name of M/s.Rizvi Builders, as the purchaser, Nicholas Ribeiro agreed to
permit the said Akhtar Hasan Rizvi to develop the said property for the
consideration, and on the terms and conditions, mentioned in the said
Agreement. As a part of the consideration, Nicholas Ribeiro was to receive
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monetary consideration and four flats in the newly constructed building i.e.
two flats on the ground floor and two flats on the first floor.
8. Thereafter, an Agreement dated 2nd March 1979 was entered into
between Nicholas Ribeiro and the State of Maharashtra, through Respondent
No.2, whereby demolition of the said property was permitted on the terms
that the requisitioned flat i.e. South flat No.1 shall be de-requisitioned and
demolished and a flat admeasuring 800 sq.ft in the newly constructed
building shall be offered to Respondent Nos.1 and 2 for requisition.
9. By an Order dated 2nd August 1979, the said South flat No.1 in
Beacon building was de-requisitioned by Respondent Nos.1 and 2 pursuant to
the said Agreement dated 2nd March 1979.
10. Thereafter, a Suit was instituted by Nicholas Ribeiro against
Rizvi in this Court, being Suit No.302 of 1981. In the said Suit, a consent
decree was passed on 9th July 1982. The said consent decree inter alia
provided that Flat No.G-1 on the ground floor of the newly constructed
building would be allotted to Nicholas Ribeiro. Nicholas Ribeiro nominated
the Petitioner as a Member in respect of the said flat. By the said consent
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decree, it was also recorded that the said flat would be occupied by the
Government allottee as per the Agreement dated 6th January 1978.
11. By an Order dated 10th September 1982, Flat No.G-1 was
requisitioned by Respondent Nos.1 and 2.
12. By an Order dated 21st September 1982, passed by Respondent
No.2, B.M.Ghatwai, the Original Respondent No.3, was allotted Flat No.G-1
for his residence.
13. In 1988, the present Writ Petition was filed.
14. By a letter dated 27th June 1988 addressed to Respondent No.2,
the Petitioner called upon him to de-requisition Flat No.G-1 on the ground
that the indefinite continuation of requisition of the said flat by Respondent
Nos.1 and 2 was arbitrary, without jurisdiction and illegal.
15. Further, by letters dated 29th April 1989 and 16th June 1989,
addressed to Respondent No.2, the Petitioner called upon Respondent No.2
to hand over vacant possession of Flat No.G-1 to the Petitioner.
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16. On 31st July 1990, Original Respondent No.3 retired from the
service of Respondent No.1 and, hence, ceased to be in the employment of
Respondent No.1.
17. Respondent No.2 issued a Notice dated 7 th October 1995, under
Section 8C(2) of the Requisition Act, to Original Respondent No.3 wherein
Respondent No.2 stated that, pursuant to the judgement of the Supreme
Court of India in Grahak Sanstha Manch and Others vs. State of
Maharashtra1, Respondent No.1 proposed to consider whether to continue
the requisition of the said premises or to de-requisition the said premises.
Therefore, by the said Notice, Original Respondent No.3 was called upon to
appear before Respondent No.2 within seven days from the date of receipt of
the said Notice with his written statement and documentary evidence, if any,
to show cause why the requisition should not be continued further and
appropriate steps should not be taken to evict Original Respondent No.3
from Flat No.G-1 under the provisions of the Requisition Act.
18. By a letter dated 3rd November 1995, Original Respondent No.3
gave a reply to the said Notice dated 7th October 1995. The said letter dated
1 (1994) 4 SCC 192
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3rd November 1995 was replied to by Respondent No.2 by a letter dated 7 th
February 1996.
19. By a letter dated 2nd March 1996, Original Respondent No.3 gave
his response to the said letter dated 7th February 1996.
20. Respondent No.2 passed an Order dated 14th March 1996. In the
said Order, Respondent No.2 stated that, since Flat No.G-1 was under
requisition for about 13 years, it was necessary to release the same from the
requisition at the earliest. He further stated that he was satisfied that Flat
No.G-1 need not be continued further under requisition and passed an Order,
in exercise of powers conferred upon him by Section 8C(1) of the Requisition
Act, directing Original Respondent No.3 to vacate Flat No.G-1 within 30 days
from the date of receipt of the said Order and hand over vacant possession
thereof to the Government.
21. On 15th April 1996, Original Respondent No.3 filed Appeal No.45
of 1996 against the said Order dated 14 th March 1996 before the Appellate
Authority i.e. the Secretary of the Government of Maharashtra, General
Administration Department, Mantralaya, Mumbai 400 032. We are
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informed that the said Appeal is still pending. However, no stay is granted of
the said Order dated 14th March 1996.
22. By an Order dated 5th August 1998, the present Writ Petition was
dismissed by this Court. The Petitioner filed a Special Leave Petition, being
SLP (Civil) No.18365 of 1998, challenging the said Order dated 5 th August
1998. By an Order dated 12 th February 1999, the Supreme Court granted
Special Leave to Appeal under Article 136 of the Constitution of India and,
hence, the said SLP was converted into Civil Appeal No.920 of 1999. The said
Civil Appeal No.920 of 1999 was tagged with Civil Appeal No.5168 of 1998.
23. By a judgement dated 18 th February 2003, the said Civil Appeal
No.920 of 1999, Civil Appeal No.5168 of 1998 and other Civil Appeals were
disposed of by the Supreme Court. The said judgement dated 18 th February
2003 is in the case of Welfare Association, A.R.P. Maharashtra and Another
vs. Ranjit P. Gohil and others 2. By the said judgement, the vires of the
impugned amending Act to the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 (hereinafter referred to as “the Rent Act, 1947”) was
upheld. It was also felt that some of the Writ Petitions filed in the High Court
raised other issues as well, which, in the event of the impugned judgement
2 (2003) 9 SCC 358
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being set aside, would have to be remanded to the High Court for hearing on
issues other than the issue as to the vires of the impugned amending Act. It
was further directed that the said Appeals would be listed for appropriate
consequential directions before the Supreme Court.
24. Pursuant to the said direction, an Order dated 29 th July 2003
was passed in various Civil Appeals, including Civil Appeal No.920 of 1999
filed by the Petitioner, whereby the Supreme Court remanded the matter to
the High Court for being decided consistently with the law laid down by the
Supreme Court in the judgement dated 18 th February 2003. The said Order
also directed that the High Court would be free to form its opinion and decide
issues other than those covered by the said judgement of the Supreme Court.
It is in these circumstances, that the present Writ Petition has been
remanded to this Court for consideration.
25. By a Notice dated 29th August 2006, Respondent No.2 called
upon Original Respondent No.3 to show cause as to why the South flat
situated on the top floor of the Beacon Building should not be discontinued
from requisition and why Respondent No.3 should not be evicted from the
said requisitioned flat. It seems that, in the said Notice, Respondent No.2
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has, by mistake, referred to the South flat on the top floor of the Beacon
Building, instead of Flat No.G-1.
26. Original Respondent No.3 replied to the said show cause notice
dated 29th August 2006 by his letter dated 22nd September 2006.
27. Thereafter, by a letter dated 30 th April 2008 addressed to
Respondent No.2, the Petitioner called upon Respondent No.2 to inform him
about the progress in the matter of handing over possession of Flat No.G-1 to
him. By an Order dated 9th April 2010, Respondent No.2 once again called
upon Original Respondent No.3 to vacate the requisitioned flat within thirty
days from the date of receipt of the said Order.
28. By an Order dated 28th November 2023, passed by this Court,
the Petitioner was permitted to amend the Petition to bring subsequent facts
on record and also to add Respondent Nos.3A and 3B, being the heirs of the
deceased Original Respondent No.3, as parties to the Petition.
29. Respondent Nos.1 and 2 have filed an Affidavit in Reply dated
24th August 2012 to the Petition in which they have contended that Original
Respondent No.3, who had retired from government service before 7 th
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December 1996 and who had been served an eviction Order before 11 th June
1996, is not deemed to be a protected tenant of the landlord. Further,
Respondent Nos.1 and 2 have filed a further Affidavit in Reply dated 26 th
September 2024 reiterating the aforesaid contention that the Original
Respondent No.3 was not a protected tenant.
30. Respondent No.3A has filed Affidavits in Reply dated 25 th June
2024 and 4th October 2024 opposing the grant of any reliefs in the Petition.
The Petitioner has also filed an Affidavit in Rejoinder dated 4 th September
2024.
31. We have heard the learned counsel for the parties and perused
the documents on record.
32. Mr.Amogh Singh, the learned counsel appearing on behalf of the
Petitioner, submitted that the law with respect to requisition of property is no
longer res integra. He submitted that the Supreme Court in H.D.Vora vs.
State of Maharashtra and Others3 has held that requisition cannot be
continued for an indefinite period of time. He submitted that this view has
3 (1984) 2 SCC 337
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been upheld by the Constitution bench of the Supreme Court in Grahak
Sanstha Manch and Others (supra).
33. Mr.Singh submitted that, in the present case, there is no dispute
that an eviction order was passed by a competent authority on 14 th March
1996 under Section 8(C)(1) of the Requisition Act. He further submitted that
Respondent No.1 promulgated the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947, The Bombay Land Requisition Act, 1948 and the
Bombay Government Premises (Eviction) (Amendment) Ordinance, 1996,
whereby Section 5(1-A) of the Rent Act, 1947 was amended inter alia so as to
confer status of ‘tenant of the landlord’ on such persons who were allotted the
requisitioned premises by the State Government for residential purpose and
where such premises were continued under requisition. He submitted that
the said amendment clearly prescribes that only such persons against whom
there is no eviction order prior to 11 th June 1996 were deemed to have become
tenants. He further submitted that, since, admittedly, an eviction order was
passed against Original Respondent No.3 on 14 th March 1996, the benefits of
being a deemed tenant cannot be claimed by Original Respondent No.3.
Mr.Singh further submitted that, without prejudice to the aforesaid, even
otherwise, Original Respondent No.3 had retired on 31 st July 1990, and,
therefore, would not fall under the definition of the ‘ Government allottee’
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under the provisions of the Amended Act. In this context, Mr.Singh referred
to the judgement of the Supreme Court in Maheshchandra Trikamji Gajjar vs.
State of Maharashtra and Others4 and the judgement of this Court in The
Sahyadri Central Consumer Co-op. Wholesale and Retail Stores Ltd. vs. The
Controller of Accommodation, General Admn. Department and Others. 5
34. Mr.Singh further submitted that the Rent Act, 1947 was repealed
and the Government of Maharashtra notified Maharashtra Rent Control Act,
1999 (“Rent Act, 1999“). He submitted that Section 7 and Section 27 of the
Rent Act, 1999 reiterate that those persons against whom there is no eviction
Order prior to 11th June 1996, were deemed to have become tenants. He
submitted that therefore Original Respondent No.3 cannot seek benefits of
the amendment as there is already an eviction order passed against Original
Respondent No.3 before 11th June 1996 i.e. on 14th March 1996.
35. Ms.Palsuledesai, the learned A.G.P. appearing on behalf of
Respondent Nos.1 and 2, relied on the Affidavits dated 24 th August 2012 and
26th September 2024 filed on behalf of Respondent Nos.1 and 2, and
submitted that Original Respondent No.3, who had retired before 7 th
December 1996, and who had been served the Eviction Order dated 14 th
4 (2000) 3 SCC 295
5 Writ Petition No.73 of 2015
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March 1996, before 11th June 1996, is not deemed to be a protected tenant of
the landlord. In order words, Respondent Nos.1 and 2 supported the case of
the Petitioner.
36. Mr.Khandeparkar, the learned Senior Advocate appearing on
behalf of Respondent No.3A, opposed the granting of any reliefs in the
Petition.
37. Mr.Khandeparkar submitted that, by a judgement dated 5 th
August 1998, this Court dismissed the present Writ Petition. The Petitioner
had filed a SLP challenging the said Order dated 5 th August 1998. The
Petitioner’s SLP was tagged with those SLPs which resulted in the judgement
in Welfare Association (supra). He submitted that by an Order dated 29 th
July 2003, the Supreme Court directed re-consideration of issues other than
vires. The Supreme Court did not consider the issues raised in the
Petitioner’s SLP at all and did not set aside the judgement dated 5 th August
1998. He submitted that, in these circumstances, the Petitioner cannot re-
agitate the Petition.
38. Mr.Khandeparkar submitted that Original Respondent No.3 was
a Government allottee as per Section 7(2)(b) of the Rent Act, 1999 and
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became a deemed tenant as per the provisions of Section 27 thereof as Flat
No.G-1 was requisitioned and allotted to him for residential purpose and on
7th December 1996 he was in occupation and possession of Flat No.G-1 for
residence.
39. Mr.Khandeparkar submitted that no order had been passed by
any Court quashing the order of requisition of Flat No.G-1 or directing
Original Respondent No.3 to vacate the same. Mr.Khandeparkar submitted
that Section 27 of the Rent Act, 1999 provides for deemed tenancy
notwithstanding “any order of eviction issued by the competent authority ”
irrespective of the date when the said order was passed. He submitted that,
thus, Original Respondent No.3 became a deemed tenant notwithstanding
the Order dated 14th March 1996 of eviction.
40. Further, Mr.Khandeparkar submitted that Original Respondent
No.3 had also filed an Appeal against the Order of eviction dated 14 th March
1996, after which no further action was taken to evict him. He submitted
that, after passing of the eviction Order dated 14 th March 1996, Respondent
No.2 accepted rent from Original Respondent No.3 and relied upon certain
rent receipts in that regard. He further submitted that Respondent No.2 had
issued another show cause notice dated 29 th August 2006 calling upon
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Original Respondent No.3 to vacate the requisitioned premises.
Mr.Khandeparkar submitted that all the aforesaid facts clearly showed that
the eviction Order dated 14th March 1996 had not attained finality.
41. Mr.Khandeparkar further submitted that the Maharashtra
Ordinance dated 7th December 1996 and the Maharashtra Ordinance dated
26th December 1997 show that the Rent Act, 1947 was amended to grant
deemed tenancy to persons such as Original Respondent No.3.
Mr.Khandeparkar submitted that, while the first Ordinance contained the
words “are allowed by the State Government to remain in occupation or
possession” in Section 5(1A), the second Ordinance amended this to “are in
their occupation or possession”. Mr.Khandeparkar submitted that the first
Ordinance granted tenancy in Section 15-B, notwithstanding any Order of the
Court passed after 11th June 1996, but did not refer to any eviction order of a
competent authority under the Requisition Act. He submitted that the
second Ordinance amended the provision and granted deemed tenancy
notwithstanding “any order of eviction issued by the Competent Authority or
by the Appellate Authority, under the Bombay Land Requisition Act 1948. ”
Mr.Khandeparkar submitted that, pertinently, these words were deliberately
added after the words “11th June 1996” thus making it absolutely clear that
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the Competent Authority or by the Appellate Authority on any date.
42. Mr.Khandeparkar submitted that the legislative intent was to
create two categories of orders of eviction/de-requisitioning notwithstanding
the passing of which deemed tenancy was to be granted – (i) court orders
passed after 11th June 1996 and (ii) orders of Competent or Appellate
Authority passed on any date. Mr.Khandeparkar submitted that, if the intent
was not to grant tenancy to persons against whom eviction orders had been
passed by the Competent or Appellate Authority before 11th June 1996, the
words “any order of eviction issued by the Competent Authority or by the
Appellate Authority, under the Bombay Land Requisition Act 1948 ” would
have been added before the words “the 11th June 1996” in Section 15-B.
Mr.Khandeparkar submitted that the Statement of Objects and Reasons of
the Second Ordinance also makes it clear that the legislative intent was to
grant the benefit of deemed tenancy also to those occupants who had been
issued eviction orders by the Competent Authority.
43. Mr.Khandeparkar submitted that the Rent Act, 1947, and
amendments thereto are welfare legislations, and, therefore, must be
construed so as to further its object and intention. In support of this
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proposition, he relied upon the judgement of the Supreme Court in
Hindustan Lever Ltd. v. Ashok Vishnu Kate 6. Mr.Khandeparkar also
submitted that Section 9(8) of the Requisition Act is similar to Section 27 of
the Rent Act, 1999 and also grants deemed tenancy.
44. In support of his submissions, Mr.Khandeparkar relied upon the
decision of this Court in Kaiki Rustomji Alpaiwalla v. State of Maharashtra.7
45. Further, Mr.Khandeparkar submitted that the Petitioner’s
reliance upon the decision of this Court in The Sahyadri Central Consumer
Co-op. Wholesale and Retail Stores Ltd. (supra) was misplaced, as in the said
case, there was already an order passed by the High Court setting aside the
requisition order, which order was upheld by Supreme Court in Grahak
Sanstha Manch and Others (supra) and the Petitioner therein,
notwithstanding such orders, had continued to remain in the premises for 25
years. Mr.Khandeparkar submitted that, in the present case, the requisition
order was never set aside.
46. Mr.Khandeparkar next submitted that the decision in the case of
Gajjar (supra) had been relied upon by the Petitioner. He submitted that,
6 (1995) 6 SCC 326
7 (2006) 1 Mah.L.J.522
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subsequent to this case, the Supreme Court, in Welfare Association (supra)
had upheld the constitutional validity of amendments to the Rent Act, 1947.
He submitted that a clear construction of the said provisions showed that a
person such as Original Respondent No. 3 was granted deemed tenancy.
Mr.Khandeparkar further submitted that, in the case of Gajjar (supra), the
order of requisition had been set aside by the High Court, which was accepted
by both sides. He submitted that, in the present case, the requisition order
was not set aside. Further, he submitted that, in the case of Gajjar (supra),
the wording in the second Ordinance was not considered, inasmuch as the
Supreme Court merely interpreted the word ” allowed”, which formed part of
the first Ordinance and was in fact deleted from the second ordinance.
Mr.Khandeparkar submitted that, in these circumstances, the Writ Petition
ought to be dismissed.
FINDINGS AND CONCLUSIONS:
47. The present Writ Petition seeks a writ of mandamus ordering
and directing the Respondents to hand over vacant and peaceful possession
of Flat No.G-1 to the Petitioner.
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48. In order to consider whether the relief sought by the Petitioner
can be granted, we will first have to consider the relevant provisions of law in
this regard.
49. The historical antecedents on requisition of premises by the
Government in the early years of independence would show that the
continuance of the requisition of the premises for unreasonably long periods
had brought about quite an unrest amongst the landlords. This gave rise to
large scale litigation. The litigation reached the Supreme Court culminating
in one of its significant judgments on the Requisition Act, in H.D.Vora
(supra). The decision of the Supreme Court in H.D.Vora (supra) was a
pathbreaker. This decision recognized the rights of the landlords to receive
back their premises which were requisitioned during the early years of
independence thereby depriving the landlords of their valuable rights to
property. Jurisprudentially the issues did not rest on the decision of the two
Judge Bench in H.D.Vora (supra). The Constitution Bench of the Supreme
Court, on 27th April 1994, decided the issues on the legality of the continued
occupation of the requisitioned premises by the allottees, in the case of
Grahak Sanstha Manch and Others (supra). In this case, the Supreme Court
was concerned with two kinds of allottees, namely those who were using the
requisitioned premises for commercial purposes and the others for
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residential purposes. The Constitution Bench in this decision, while
upholding the decision in H.D.Vora (supra), held that there cannot be an
indefinite requisition of the premises under the Requisition Act. It clarified
the decision in H.D.Vora (supra), holding that, although the premises can be
requisitioned for a permanent public purpose, however, the order of
requisition can be continued only for a reasonable period of time. It was held
that the continuance of an order of requisition for a period as long as 30 years
was unreasonable. The Supreme Court directed that all the allottees of the
requisitioned premises shall vacate their respective premises before 30
November 1994 and the possession of the requisitioned premises be handed
over by the allottees to the Government and, thereafter, the Government shall
hand over possession to the respective landlords before 31 December 1994.
The Supreme Court also directed that it would not be an obligation of the
State Government to grant any alternate accommodation to any of the
allottees of the requisitioned premises. As an aftermath of the decision of
the Supreme Court in Grahak Sanstha Manch and Others (supra), affecting
the allottees, the Governor of Maharashtra promulgated Maharashtra
Ordinance No.XXIII of 1996 dated 7th December 1996, to amend the Rent
Act, 1947, the Requisition Act and the Bombay Government Premises
(Eviction) Act, 1955. By the Ordinance, Section (1-A) was added to Section 5
of the Rent Act, 1947 which reads as under:
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wp3650-88.doc“(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 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 occupation or possession of such
premises for his or such legal heir’s own residence, means
such person or legal heir.”
50. Further, by the said Ordinance No.XXIII of 1996, Section 15B
was inserted in the Rent Act, 1947 which reads as under:
“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 said date “).-
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(a) the State Government, in respect of the premises
requisitioned or continued under requisition and allotted to a
Government allottee referred to 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 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.”.
51. Thereafter, the Government of Maharashtra issued Ordinance
No.XX of 1997 to further amend the Rent Act, 1947, the Requisition Act and
the Bombay Government Premises (Eviction) Act, 1955. By the said
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Ordinance of 1997, Section 5(1A) and Section 15B were amended. These
amendments brought about by the Ordinance of 1997 read 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 us 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 and Requisition
Act, 1948“, shall be and shall be deemed to have been inserted
with effect from the 7th December 1996.
52. Consequential amendments were also effected in the Requisition
Act. Further, subsequently, the Ordinance was replaced by the Bombay Rent,
Hotel and Lodging House Rates Control Act, Bombay Land Requisition and
Bombay Government Premises (Eviction) (Amendment) Act, 1997
(Maharashtra Act XIV of 1997).
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53. The validity of the said Amendment Act XIV of 1997 was
assailed before this Court. This Court upheld the challenge. The matter was
carried to the Supreme Court and the Supreme Court delivered its judgement
in the case of Welfare Association (supra) upholding the amendment. The
issues which fell for consideration of the Supreme Court in the said decision
was as to whether the State Government had the requisite legislative
competence to enact the amendments, whether the impugned legislation was
a colourable one and was an interference with the judicial mandate of the
decisions in H.D.Vora (supra) and Grahak Sanstha Manch and Others
(supra) or had the effect of overruling of the said decisions of the Supreme
Court and hence violative of the doctrine of separation of powers and lastly,
whether the impugned enactment was violative of Article 14 of the
Constitution, being arbitrary and unreasonable. The Supreme Court in
Welfare Association (supra) opined that the said amending Act was intra
vires and within the competence of the State Legislature. The Supreme Court,
referring to the decision in Grahak Sanstha Manch and Others (supra), held
that all occupants of the premises, the continued requisition of which has
been quashed, shall be bound to vacate and hand over vacant possession to
the State Government as directed in the decision of Grahak Sanstha Manch
and Others (supra).
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54. The State of Maharashtra thereafter repealed the Rent Act, 1947
by notifying the Rent Act, 1999 with effect from 31 st March 2000. Section 7
sub-section 2 of the Rent Act, 1999 defines a Government allottee as under :-
“7(2) “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 Co-operative Society registered
under the Maharashtra Co-operative Societies Act, 1960
(Mah.XXIV of 1961) or any foreign consulate, by whatever name
called, and on the 7th December 1996, being 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, (Mah.XVI of 1997)
were in their occupation or 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 were allotted by the State Government for
residential purpose to any person and on the 7th December
1996, being 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, (Mah.XVI of 1997) such person or his
legal heir was in occupation or possession of such premises for
his or such legal heir’s own residence, means such person or
legal heir;”
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55. Section 27 of the Rent Control Act 1999, provides for the State
Government or Government allottee to become a deemed tenant as on 7 th
December 1996. Section 27 reads thus :-
“27. State Government or Government allottee to become tenant
of premises requisitioned or continued under requisition.
(1) On the 7th December 1996, that is 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
(2) of section 7; 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 (2) of section 7,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 judgment,
decree or order of any court passed on or after the 11th June
1996, or in any order of eviction issued by the Competent
Authority, or by the Appellate Authority, under the Bombay Land
Requisition Act, 1948, 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 allottee, 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 such tenant on any of the
grounds mentioned in section 16 or in any other section;
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(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.”
(emphasis supplied)
56. The question that arises is whether, by virtue of the provisions of
Section 7, read with Section 27, of the Rent Act, 1999, Original Respondent
No.3 and his heirs, Respondent Nos.3A and 3B, have become deemed tenants
of the Petitioner.
57. In order to answer this question, first we would have to consider
whether Original Respondent Nos.3 and Respondent Nos.3A and 3B were on
7th December 1996 in occupation or possession of Flat No.G-1 as per the
provisions of Section 7(2)(b). If they are Government allottees under Section
7(2)(b), then, by virtue of the provisions of Section 27, they shall,
notwithstanding anything contained in the Rent Act, 1999 or in the
Requisition Act or in any other law for the time being in force, or in any
contract, or in any judgment, decree or order of any court passed on or after
the 11th June 1996, ог in any order of eviction issued by the Competent
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Authority, or by the Appellate Authority, under the Requisition Act be
deemed to have become, for the purposes of the Rent Act, 1999, the tenants
of the landlord.
58. It is the case of Respondent Nos.3A and 3B that, on 7 th December
1996, they were in occupation and possession of Flat No.G-1 for their own
residence and, therefore, they were Government allottees. Further, it is also
their case that, since they were Government allottees on 7 th December 1996,
by virtue of the provisions of Section 27 of the Rent Act, 1999, they become
deemed tenants, notwithstanding the Order dated 14 th March 1996 evicting
them.
59. In the case of Gajjar (supra), decided by the Supreme Court, the
facts were that Respondent No.3 therein was a State Government employee.
He retired from Government service on 30th September, 1993. As a
Government servant, Respondent no.3 therein was allotted the premises in
question. These were requisitioned premises, having been requisitioned
under the order of requisition dated 17th April, 1958 under the Requisition
Act. The order of requisition had been set aside but Respondent no.3 therein
continued to be in possession of the premises. Whether Respondent no.3
therein had any right to continue with the possession of the premises despite
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the order of requisition having been set aside and Respondent no.3 therein
having retired from service, was the question for consideration before the
Hon’ble Supreme Court. On these facts, the Hon’ble Supreme Court held as
under:
“13. 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. ….
2. …
3. …
4. …
5. …
14. 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
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wp3650-88.docallottees. 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.
15. 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
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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.
60. The decision of the Supreme Court in the case of Gajjar (supra),
has been followed by a Division Bench of this Court in Ashok Chandrakant
Palande vs. The State of Maharashtra & Ors. 8 In that case, the Petitioner
therein had been occupying the premises in question pursuant to the
allotment made in his favour whilst in service. Admittedly, the said premises
were requisitioned by the State Government. However, while the Petitioner
therein was in service, he was ordered to vacate the premises in terms of
communication dated 30th July, 1994 issued by the Controller of
Accommodation. In response to this communication, the Petitioner therein,
by a letter dated 16th February, 1995, requested the Department to allow him
to occupy the premises for a further period of three years. The decision of the
Controller of Accommodation was not challenged by the Petitioner therein
before any forum whatsoever. The Petitioner therein did not vacate the
premises within the specified time and later on, the provisions of the
Requisition Act were amended and corresponding amendment was effected
in the provisions of the Rent Act, 1947. Taking advantage of that
8 Writ Petition No.997 of 2012
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amendment, the Petitioner asserted that since the premises were not de-
requisitioned and continued to remain under requisition until the
amendment came into effect in 1996, coupled with the fact that the Petitioner
was in occupation of the premises till then and was also in service till he
attained the age of superannuation on 30th November, 2006, he has become
deemed tenant and direct tenant of the owner of the premises. On these
facts, the Division Bench of this Court held as follows:
“4. We are in agreement with the submission made by the
Counsel for the respondents that the issue is no more res-
integra. The same has been answered by the Apex Court in the
case of Maheshchandra Trikamji Gajjar vs. State of
Maharashtra & Ors., in particular paragraphs 14 and 15
thereof, which reads thus:
14. …
15. …
5. This decision of the Apex Court has been considered
by the Division Bench of our High Court in a recent decision in
the case of Neeta Ramesh Shelar vs. The Controller of
Accommodation, Mumbai & Ors.9 decided on 17th June, 2010, in
particular paragraph 12 onwards. In paragraph 12, the Court
has adverted to another decision of the Division Bench of this
Court reported in 2008 (1) Bom. C.R. 779 and opined that the
amendments of 1996 do not protect those persons against whom
order of eviction have already been passed. The fact-situation
of the present case is similar to the fact-situation in this
unreported decision in the case of Neeta Ramesh Shelar (supra).
To get over this position, Counsel for the petitioner submits that
the communication reproduced above dated 30 th July, 1994
cannot be treated as an order of eviction issued by the
Competent Authority in exercise of powers under section 8C of
9 Writ Petition (Lodging) No. 1369 of 2010
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the Bombay Land Requisition Act, 1948 in as much as the
grounds for eviction are limited to specified in sub-clause (a) of
Sub-Section (1) of Section 8C of the Act. None of those grounds
have been invoked by the Controller of Accommodation. It is,
however, not disputed that the Controller of Accommodation is
the Competent Authority. Assuming that the said order is illegal,
the fact remains that the petitioner did not find it necessary to
challenge the decision of the Competent Authority dated 30 th
July, 1994. In that sense, the petitioner continued to remain in
unauthorized occupation on and from the expiry of the time to
vacate the premises provided therein. Since the order of eviction
has already been passed against the petitioner by the Competent
Authority as held in the case of Neeta Ramesh Shelar, the
petitioner cannot claim advantage of the amendment to the
provisions of the Land Requisition Act. The claim of the
petitioner that the petitioner has become deemed tenant by
virtue of those amendment is therefore completely misplaced and
unavailable to the petitioner.
6. Hence, the petition is dismissed.”
61. The decision in the case of Gajjar (supra) was also followed by a
single Judge of this Court in S.A.Sule vs. State Government of Maharashtra &
Ors.10
62. In the case of The Sahyadri Central Consumer Co-op. Wholesale
and Retail Stores Ltd. (supra), the judgement delivered by one of us (namely
Justice G.S.Kulkarni), this Court, after considering the legal provisions and
the judgements in the cases of Gajjar (supra), Ashok Chandrakant Palande
(supra) and S.A.Sule (supra), held as follows:
“42. As regards the premises in question, the definition of
10 (2016) SCC OnLine Bom 7886
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wp3650-88.docGovernment allottee under Section 7 (2) (a) would be relevant,
as the Petitioner was the original allottee of the said
requisitioned premises. The Petitioner, so as to be conferred a
status of a deemed tenant within the meaning of section 27 of the
Rent Act, the State Government was required to continue the
requisition of the premises in question by some positive order
which is certainly not the case. The State Government could not
have done so, considering the record and background of the
notices issued to the petitioner, including to implement the order
of the Supreme Court in Grahak Sanstha Manch. Thus surely it
can be said that the petitioners premises no more continued to
be ‘requisitioned or continued to be requisitioned’. The record
would firstly indicate that there was an eviction order dated 12
May 1967 passed against the petitioners which was received by
the petitioner and was never assailed as noted above. Secondly
also there was a further direction in the communication of the
Controller dated 12 June 1989 pursuant to the decision of the
Supreme Court in H.D.Vora‘s case (supra), that the premises
would be required to be released from requisition before 26
December 1990. Thirdly as set out by the petitioner in its own
case before the Supreme Court in Writ Petition filed by Grahak
Sanstha Manch the petitioners, averred that the petitioner was
directed to vacate the premises on or before 26 December 1992.
Fourthly thereafter there is an order dated 30 July 1992 of the
Controller of Accommodation pursuant to the directions of the
Supreme Court in Grahak Sanstha Manch & ors (supra) calling
upon the petitioner to vacate the premises by 30 November 1994
for the reason that the Supreme Court had quashed the
requisition of the petitioners premises. All these orders are
before the cut off date of 7 December 1996 as Section 27(1) of
the Rent Control Act would provide for continuing the status of a
deemed tenant. Thus clearly the occupation and possession of
the suit premises by the Petitioner was patently illegal. The
Petitioner did not enjoy the status of being an allottee of the
premises of which the requisition was continued, nor can it be
said by any stretch of imagination that the premises stood to be
requisitioned premises so that the benefit of Section 27 is
available to the Petitioner to be a deemed tenant.”
63. Applying the law laid down in the aforesaid judgements to the
facts of the present case, it cannot be said that Original Respondent No.3 or
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Respondent Nos.3A and 3B are deemed tenants by virtue of the provisions of
Sections 7 and 27 of the Rent Act, 1999.
64. In order to qualify as a deemed tenant under Section 27, these
Respondents have to be Government allottees as defined under Section 7(2).
Section 7(2)(b) provides that, in relation to any premises requisitioned or
continued under requisition, which were allotted by the State Government for
residential purpose to any person, such person or his/her legal heir would be
a Government allottee if such person or a legal heir was in occupation or
possession of such premises for his/her residence on 7th December 1996.
65. In the judgments referred to above, it is held that ‘occupation’ or
‘possession’ in Section 7(2)(b) would mean legal occupation or possession
and if a person has retired from the service of the Government before 7 th
December 1996 and an eviction order has been passed against him/her,
before 7th December 1996, then such a person cannot be considered to be in
‘occupation’ or ‘possession’ under Section 7(2)(b).
66. In the present case, Original Respondent No.3 retired from
Government service on 31st July 1990. Further, by a show cause notice dated
7th October 1995 issued under the provisions of the Requisition Act, Original
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Respondent No.3 was called upon to show cause why he should not vacate
Flat No.G-1 pursuant to the judgement of the Supreme Court in Grahak
Sanstha Manch and Others (supra). By a letter dated 3rd November 1995,
Original Respondent No.3 responded to the said show cause notice dated 7 th
October 1995. The said letter dated 3 rd November 1995 was responded to by
Respondent No.2 by its letter dated 7 th February 1996. Further, by his letter
dated 2nd March 1996, Original Respondent No.3 replied to the said letter
dated 7th February 1996. Ultimately, the Order dated 14 th March 1996 was
passed by Respondent No.2. By the said Order, Respondent No.2 stated that,
since Flat No.G-1 was under requisition for about 13 years, it was necessary to
release the same from requisition at the earliest. Respondent No.2 further
stated that, in view of the position explained in the said letter, he was
satisfied that the premises should not be continued further under requisition.
He, therefore, passed an Order in exercise of powers conferred by sub-section
(1) of Section 8(C) of the Requisition Act and directed Original Respondent
No.3 to vacate Flat No.G-1 within 30 days from the date of the receipt of the
said Order and hand over vacant possession thereof to the Government. In
these circumstances, applying the ratio of the aforesaid judgements, and
especially of the Supreme Court in the case of Gajjar (supra), Original
Respondent No.3 was not in legal occupation or possession of Flat No.G-1 as
on 7th December 1996, and, therefore, was not a government allottee under
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Section 7(2)(b) of the Rent Act, 1999 and therefore, was not a deemed tenant
under Section 27 of the Rent Act, 1999. For these reasons, Respondent
Nos.3A and 3B are also not deemed tenants.
67. As far as the judgement of this Court in Kaiki Rustomji
Alpaiwalla (supra), relied upon by Mr.Khandeparkar is concerned, the same
is of no assistance to the Respondents as the issues arising in the present
Petition were neither discussed nor considered in the said judgement.
Further, the said judgement has also not considered the judgement of the
Supreme Court in the case of Gajjar (supra).
68. Further, in our view, the submission of Respondent No.3A that,
even after passing of the eviction order, Respondent No.2 accepted the rent
from Original Respondent No.3 does not take the case of the Respondent any
further. The rent receipt produced by Respondent No.3A shows that some
amount was paid as compensation for the months of September and October
1996. The said fact does not militate against the fact that the Original
Respondent No.3 had retired from Government service on 31 st July 1990 and
the said Order dated 14th March 1996 had been passed against him, and
therefore, he was not in legal occupation or possession of Flat No.G-1. For
the same reasons, the issuance of another show cause notice on 29 th August
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2006, which resulted in an Order dated 9th April 2010, also does not carry the
case of the Respondent Nos.3A and 3B any further. In our view, the fact
remains that Original Respondent No.3 had retired from government service
on 31st July 1990 and an Order directing him to vacate the premises had been
passed on 14th March 1996 i.e. before the said date of 7th December 1996.
69. We are also unable to accept the submission of the Respondent
Nos.3A and 3B that, in light of the judgement dated 5 th August 1998
dismissing the present Writ Petition, the Petitioner cannot re-agitate this
Petition. In this context, it is important to note that, after the present
Petition was dismissed by the said Order dated 5th August 1998, the Petitioner
filed a SLP (Civil) No.18365 of 1998 challenging the said Order dated 5 th
August 1998, which was admitted and converted into Civil Appeal No.920 of
1999. The said Civil Appeal No.920 of 1999 was tagged and heard along with
Civil Appeal No.5138 of 1998 and other Civil Appeals, which resulted in the
judgment of the Supreme Court in Welfare Association (supra). By the
judgement of the Supreme Court in Welfare Association (supra), it was held
that the Writ Petitions which were filed in the High Court raising issues other
than vires of the Act would have to be remanded to the High Court for
hearing on issues other than the issue as to the vires of the Rent Act. Further,
by an Order dated 29th July 2003, Civil Appeal No.920 of 1999, along with
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various other Civil Appeals, was remanded to the High Court for being
decided consistently with the law laid down by the Court in the judgement of
Welfare Association (supra). The said Order also held that the High Court
shall be free to form its opinion and decide the issues other than those
covered by the judgement of the Supreme Court in Welfare Association
(supra).
70. In our view,the aforesaid facts clearly show that the present Writ
Petition was remanded back to this Court for fresh consideration and
decision on issues other than vires of the impugned Amendment Act, which
had already been decided in Welfare Association (supra). In these
circumstances, we are unable to accept the submission of the Respondent
Nos.3A and 3B that the Petitioner cannot re-agitate the issues in this Petition
in light of the Order dated 5th August 1998 passed by this Court.
71. In light of the aforesaid discussion and finding, we pass the
following orders:
a. Respondent Nos.3A and 3B are ordered and directed to
hand over to the Petitioner quiet, vacant and peaceful possession of
Flat No.G-1 on the Ground Floor of the Building Beacon at Plot
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wp3650-88.docNo.144, TPS Corner of west and south Avenue, Santacruz (West)
Bombay 400054, within a period of six months from the date of
this Order.
b. Rule is made absolute in the aforesaid terms.
c. In the facts and circumstances of the case, there will be no
order as to costs.
[FIRDOSH P. POONIWALLA, J.] [G. S. KULKARNI, J.]
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