Bombay High Court
Prime Properties Pvt. Ltd vs The Accommodation Officer on 9 July, 2009
Author: R.S.Mohite
Bench: D.K.Deshmukh, R.S.Mohite
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1142 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2.
Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
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2
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2.
The State of Maharashtra.
3. Dhanrajmal Gobindram,
carrying on his business on portion
of the Maneckji Wadia Bldg., 1st floor,
Bell Lane, Fort, Bombay-400023.
..Respondents.
WITH
WRIT PETITION NO. 1143 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
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3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2. The State of Mahrashtra.
3. G.P.Goswami,
carrying on his business on
portion of the Maneckji Wadia Building,
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1st floor, Bell Lane,Fort, Bombay-400 023.
....Respondents.
........
WITH
WRIT PETITION NO.1144 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2.
Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
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5
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2.
The State of Maharashtra.
3. M/s. Widya Wikas Films,
carrying on his business on portion
of the Maneckji Wadia Bldg., 4th floor,
Bell Lane, Fort, Bombay-400023.
..Respondents.
.........
WITH
WRIT PETITION NO. 1145 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
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3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2. The State of Maharashtra.
3. M.H.Gandhy and Sons,
carrying on his business on portion
of the Maneckji Wadia Bldg., 1st floor,
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Bell Lane, Fort, Bombay-400023.
..Respondents.
........
WITH
WRIT PETITION NO. 1146 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
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Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2. The State of Maharashtra.
3. Dhirajlal Jivanlal Parikh,
Since deceased represented by his
legal heirs and representatives.
3a. Mrs.Asha Mehta (daughter)
residing at Ben Nevis, 5th floor,
B.D. Road, Mumbai-400 032.
3b. Mrs. Sudha Bhansali (daughter) and
3c. Ms. Tejal Parekh (daughter)
Both residing at 22, Zenia Abad,
Little Gibbs Road, Malabar Hill,
Mumbai-400 026.
3d. Mr. Pradeep Parkeh (son)
residing at 35, Ocean Crest,
Bhulabhai Desai road, Mumbai-400 026.
3e. Mr.Atul Parekh (son),
residing at 22, Zenia Abad,
Little Gibbs Road, Malabar Hill,
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Mumbai-400 026.
...Respondents.
..........
WITH
WRIT PETITION NO. 1147 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2.
Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
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Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2.
The State of Maharashtra.
3. A. Wasanth & Co.
carrying on his business on portion
of the Maneckji Wadia Building,
1st floor, Bell Lane,Fort,
Bombay 400 023.
...Respondents.
........
WITH
WRIT PETITION NO. 1150 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
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3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2. The State of Maharashtra.
3 N.D. Karnick & Co.
carrying on his business on portion of
the Maneckji Wadia Building,
1st floor, Bell Lane, Fort,
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Bombay- 400 023.
...Respondents.
.........
WITH
WRIT PETITION NO. 1152 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2.
Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
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13
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2.
The State of Maharashtra.
3. Indian Youth Magazine
carrying on his business on portion
of the Maneckji Wadia Building, 1st floor,
Bell Line, Fort, Bombay-400 023.
....Respondents.
......
WITH
WRIT PETITION NO. 1153 OF 1990
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
Paschim Apartment, Kashinath Dhru Marg,
Dadar(w), Bombay -400 026.
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3. Ratanji Nowroji Bhavanagari of Bombay,
Indian Inhabitant, Resingind at Everest
House, M.L.Dhanukar Marg, Bombay 400026.
4. Sarob Homasji Commissiriat of Bombay,
Indian inhabitant, residing at Slymose 3,
M.L. Dhanukar Marg, Bombay -400 026.
5. Sam Framroze Joshi of Bombay,
Indian Inhabitant, residing at 3,
A Karai Estate 248, Tardeo road,
Bombay-400 034.
6. Jamshed Khurshedji Setna of Bombay,
Indian inhabitant,Ingersolirand (I) Ltd.,
Maybaker House, S.K. Phire Marg,Bombay-25.
7. Burjor Hormusji Anita of Bombay,
Indian Inhabitant, residing at Ocean view,
Near Colaba Bus Station, Bombay-400 005.
...Petitioners.
Vs.
1. The Accommodation Officer,
in the office of the
Controller of Accommodation,
having his office at New Administrative
building, Opp. Mantralaya, Bombay-400 032.
1A. Collector of Bombay,
Old Custom House, Fort, Bombay.
1B. Union of India.
2. The State of Maharashtra.
3. Democratic Research Service
having their office on portion
of the Maneckji Wadia Building,
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4th floor, Bell Line, Fort,
Bombay-400 023.
....Respondents.
........
WITH
WRIT PETITION NO. 2421 OF 1992
1. Prime Properties Pvt. Ltd.
A Private Limited Company incorporated
and registered under the Companies Act,
1956, having its office at 111,
Maker Chamber No.IV, Nariman Point,
Bombay-400021.
2. Sharadchandra Vrajlal Bhansali of Bombay,
Indian Inhabitant, residing at 142-A,
A Director of the 1st Petitioner Company
and Residing at Paschim Apartment,
Kashinath Dhru Marg,
Dadar(w), Bombay -400 028.
....Petitioner.
Vs.
1. The State of Maharashtra.
2. The Controller of Accommodation
having his office at 1st floor,
New Administrative bldg.
Opp. Mantralaya, Bombay-400 032.
3. The Collector of Bombay,
having his office at Old Custom House,
Fort, Bombay 400 001.
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4. The Union of India.
5. M/s. Spectrum Business and
Communication Centre through its
Sole Prop. Mr. Pratap Bhavnani
carrying on business at 1st floor,
Maneckji Wadia Bldg. 127, M.G.Road,
Fort, Bombay 400 023.
....Respondents.
........
WITH
WRIT PETITION NO.2454 OF 1994
1. A Wasant & Company,
belonging to Mr.Vasant
Shantaram Ajgaonkar,
having its office at
Maneckji Wadia Bldg., 1st floor,
Nanikram Motawani Lane,
127, M.G. Road,Fort,
Bombay- 400 023.
2. Mr. Vasant Shantaram Ajgaonkar,
Prop. Of the Firm A Wasant & Company ,
having his office at
Maneckji Wadia Building,
Nanikram Motwani Lane,
127, M.G.Road, Fort, Bombay
by his Constituted Attorney
Mrs. Jaya @ Manisha Kamal Vazirani.
....Petitioners.
Vs.
1. State of Maharashtra,
having Principal office at Mantralaya,
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17
Bombay.
2. The Controller of Accommodation
in the office of the
Controller of Accom odation
at New Administrative Building,
Opp. Sachivalaya, Bombay.
3. M/s. Prime Properties Pvt. Ltd.
Company incorporated and registered
under the Companies Act, 1956 having
its office at Maker Chamber No.IV,
Nariman Point, Bombay- 400 021.
ig ....Respondents.
...........
Mr. Oven Mensnzes with Ms.Swati Dahibawkar i/by
Sanjiv Ahuja for the Petitioners in all the
petitions except W.P.No.2454/1994.
Mr. B.B.Madekar with Sachin Kudalkar for the
Respondent No.4 in W.P. No.1142/1990, 1145/1990,
1147/1990, 2421/1992.
Mr. Siraj Rusumji with Manish Saurashtree i/by
Shantilal & Co. for the Respondent No.3 in W.P.No.
1143/1990.
Mr.Siraj Rustumji with Arcon Balsara with F.B.
Kamdin i/by FZB Associates for the Respondent No.3A
to 3E in Writ Petition No.1146/1990.
Mr.G.K.Mouand with B.B.Madekar for the Respondent
No.3 in W.P. No.1152/1990
Mrs. Asgavkar for the Petitioner in W.P. No.
2454/1994.
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Mr. Rajiv Y. Mane, AGP. For the State in all the
petitions.
CORAM : D.K.DESHMUKH &
R.S.MOHITE, JJ.
DATE : Reserved on
20th April,2009
Declared on
9th July, 2009
JUDGMENT :( Per R.S.Mohite,J.)
1. Since all the aforesaid writ petitions involve the same or similar issues, they are disposed off by this common Judgment and order.
2. The brief matrix of the relevant facts and law, in cronological order are as follows.
a) On 1.9.1939, Germany invaded Poland. Two days later, Great Britain and France declared war on Germany. The IInd World War had begun. The Governor General declared a proclamation of emergency under Section 102 of the Government of India Act, 1935.
On 29.9.1939, British Parliament enacted the Defence of India Act 1939, interalia in order to ::: Downloaded on - 09/06/2013 14:45:52 ::: 19 provide for special measures to ensure public safety, interest and the Defence of British India.
b) Section-2 of the Defence of India Act enabled the Central Government to make rules interalia for requisitioning of property. Accordingly, in 1939, the Central Government framed the Defence of India Rules,1939 (Hereinafter referred to as the rules .)Rule 75A of the rules pertained to requisitioning of property and Rule 75-A(1) which is relevant for our purpose was in the following terms.
Rule-75-A (1)- If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, Public safety, the maintenance of public order or efficient prosecution of war, or for maintaining, supplies and services essential to the life of the community, that Government may, by order in writing, requisition any property, movable or ::: Downloaded on - 09/06/2013 14:45:52 ::: 20 immovable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning .
c) On 20-9-1046, a public charitable trust by name N.M.Wadia Charities (Hereinafter referred to as the trust . was the owner of a building known as the Manekji igWadia Building situated at 127, Mahatma Gandhi Road, Fort, Bombay-1 (Hereinafter referred to as the building .
d) By an order dated 20.9.1946, the Collector of Bombay, in exercise of powers conferred upon him by sub rule (1) of Rule 75-A of the Defence of India Rules read with a Notification of the Government of India, Defence Co-ordination Department dated 25.4.1942, for a declared purpose of maintaining supplies essential to the life of the community, requisitioned the eastern half of the first, fourth and fifth floors and the whole of the third floor of the said building and directed that the ::: Downloaded on - 09/06/2013 14:45:52 ::: 21 possession of the said building be delivered to the A.D. Lands Hiring and Disposal Services. The order mentioned that the requisitioned property would be continued in requisition during the period of the war and six months thereafter or any such shorter period as may be specified by the A.D. Lands Hiring and Disposal Services. The record indicates that ig the requisition was for a Union purpose i.e. for the use by the Defence Ministry of the Government of India.
e) The Defence of India Act 1939 and the rules framed thereunder were to expire on 30.9.1946. A question arose as to what was to be the status of land/premises requisitioned under the Act and the Rules. To address this question, in 1946, the Governor General promulgated the Requisitioned Land (Continuance of Powers)Ordinance 1946 (Hereinafter referred to as the 1946 Ordinance , which was brought into force with effect from 1.10.1946. Clause-3 of the 1946 ::: Downloaded on - 09/06/2013 14:45:52 ::: 22 Ordinance dealt with the continuance of requisitions made under the Act and the Rules, notwithstanding their expiry and was in the following terms.
3-Continuance of Requisition- Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939),and the rules made thereunder, all requisitioned land shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient;
. Clause-4 of the 1946 Ordinance dealt with release from requisition and clause 4(1) was in the following terms.
4-(1) Release from requisition-(1) Where any requisitioned land is to be released from requisition, the appropriate Government may, after ::: Downloaded on - 09/06/2013 14:45:52 ::: 23 making such enquiry, if any, as it considers necessary, specify by order in writing the person to whom possession of the land shall be given.
f) The Ordinance was replaced by the Requisitioned land (Continuance of Powers) Act 1947 (Hereinafter referred to as ( the 1947 Act ) and Section 3 of the 1947 Act provided for continuation of the requisitions made under the Act and the rules in the following terms.
. (3) Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939), expires, and the rules made thereunder, all requisitioned land shall contiue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient;
Provided that the appropriate Government may at ::: Downloaded on - 09/06/2013 14:45:52 ::: 24 any time release from requisition any requisitioned land.
. Section-4 of the 1947 Act dealt with release from requisition. Section 4(1) was in the following terms.
. 4(1) Where any requisitioned land is to be released from requisition, the appropriate Government may, after making such inquiry, if any, as it considers necessary, specify by order in writing the person to whom possession of the land shall be given.
. As the 1947 Act was enacted by the Indian Legislature under Section 3 of the India (Central Government & Legislature) Act 1946, Section 1(3) thereof provided that it would cease to have effect on the expiration of the period mentioned in Section 4 of the India (Central Government & Legislature) Act 1946. It was scheduled to expire ::: Downloaded on - 09/06/2013 14:45:52 ::: 25 on 31.3.1952.
g) By a letter dated 7-8-1950 issued by the Estate Manager, the Government of India Estates Bombay to the Controller of Accommodation, Government of Bombay, it was recorded that the vacant premises in the building, in charge of the Central Government was to be taken over by the Controller of Accommodation. The letter mentioned that the Defence Department was being requested to settle the terminal compensation directly with the owners.
h) By a further letter dated 9-9-1950 issued by the Area Lands Hiring and Disposal Department, Bombay addressed to the Secretary of the trust, the trust was informed that the premises requisitioned by the Defence Ministry and transferred to the Estate Manager, Government of India Estates, Bombay, was now occupied by the Provincial Government. The letter mentioned that the Controller of Accommodation desired that the ::: Downloaded on - 09/06/2013 14:45:52 ::: 26 compensation paying during the occupation of the premises by the Defence Ministry should be paid directly to the trust.
i) On 22-9-1950, the Estate Manager of the Government of India Estates addressed a letter to the trustees of the trust informing them that the requisitioned premises had been handed over to the Controller of Accommodation, Bombay on 7-8-1950. The letter mentioned that till the said date, the office of the Government of India Estates was responsible for payment of rent. The trustees were therefore, requested to send the rent receipts up to 7-8-1950 and to deal with the controller of accommodation for further payment after the said date.
j) On 4-12-1950, the Controller of Accommodation, Bombay addressed a letter to M/s. Dhanraj Gobindram (Respondent No.3 in W.P. No.1142 of 1990) allotting an area of 750 sq. ft. on the first floor of the ::: Downloaded on - 09/06/2013 14:45:52 ::: 27 building. The letter indicated that M/s. Dhanraj Gobindram were then occupying the premises in Menka building. The record indicates that these premises were required for being allotted to an educational trust and in the circumstances, M/s.Dhanraj Gobindram were directed to handover the possession of the premises then occupied by them at Menka building and to intimate the date on which they would occupy the allotted premises in Manekji Wadia building. A copy of this letter was addressed to the Manager of the trust.
k) The record indicates that similar allotment letters were also issued to other persons who are arrayed as Respondent No.3 in Writ Petition Nos.
1143 of 1990 to Writ Petition No.1153 of 1990.These allotment orders were as follows.
. i) Allotment order dated 20.2.1951 in favour of Respondent No.3 in Writ petition No.1143 of 1990 i.e. G.P. Goswami.
::: Downloaded on - 09/06/2013 14:45:52 ::: 28. ii) Allotment order dated 24.3.1951 in favour of Respondent No.3 in Writ Petition No.1144 of 1990 i.e. M/s. Widya Wikas Films.
. iii) Allotment order dated 29.1.1951 in favour of Respondent No.3 in Writ Petition No.1145 of 1999 i.e. M.H. Gandhy and Sons.
. iv) Allotment order dated 24.3.1951 in favour of Respondent No.3 in Writ Petition No.1146 of1990 i.e. Dhirajlal Jivanlal Parikh.
. v) Allotment order dated 5.10.1950 in favour of Respondent No.3 in Writ Petition No.1147 of 1990 i.e. A.Wasanth & Co.
. vi) Allotment order dated 20.2.1951 in favour of Respondent No.3 in Writ Petition No.1150 of 1990 i.e. N.D. Karnick & Co.
::: Downloaded on - 09/06/2013 14:45:52 ::: 29. vii) Allotment order dated 20.2.1951 in favour of Respondent No.3 in Writ Petition No.1152 of 1990 i.e. Indian Youth Magazine.
. viii) Allotment order dated 11.10.1950 in favour of Respondent No.3 in Writ Petition No.1153 of 1990 i.e. Democratic Research Service.
. All the aforesaid persons who were issued allotment letters will hereinafter be referred to as the allottees .
. The record further indicates that after allotment such in their favour, the allottees paid what they termed as monthly rent in their forwarding letters directly to the trustees and the trustees accepted this amount and issued receipts.
Some of such receipts are produced on record and the rent was accepted as statutory rent .
l. On 21.3.1951, Parliament enacted the ::: Downloaded on - 09/06/2013 14:45:52 ::: 30 Requisitioned Land (Continuance of Powers) Amendment Act, 1951 (hereinafter referred to as the 1951 Act . By Section 2 of this Act, Parliament amended Section 1 of the 1947 Act .Section 2 of the 1951 Act was in the following terms.
. 2.Amendment of Section 1, Act XVII of 1947-
In sub
section (3) of Section 1 of the
Requisitioned Land (Continuance of Powers )Act, 1947, the following sub section shall be substituted namely :
. (3) It shall cease to have effect in Part-C States on the 1st day of April,1952 and in Part A states -
(a) as respects the requisitioned lands which, at the commencement of the Requisitioned Land (Continuance of Powers) Amendment Act, 1951, are subject to requisition by or under the authority of the Central Government, on the 1st day of April, ::: Downloaded on - 09/06/2013 14:45:52 ::: 31 1952, and
b) as respects other requisitioned lands, on the 1st day of April, 1951, except as respects things done or omitted to be done before such cesser of operation of this Act, and section 6 of the General Clauses Act, 1897 (X of 1897) shall apply upon such cesser of operations as if it had then been repealed by a Central Act .
. The net effect of the 1951 Act was that in the Province of Bombay, requisitions made under the Act and the Rules were continued till 1.4.1952.
m) On 26.3.1951, the Controller of Accommodation addressed a letter to M/s.Dhanraj Gobindram informing them that they were to pay to the trust certain specified compensation. Further, by a letter dated 17.4.1951, issued in supercession of the letter dated 26.3.1951, the Controller of Accommodation, informed M/s.Dhanraj Gobindram that ::: Downloaded on - 09/06/2013 14:45:52 ::: 32 the compensation payable by them to the trust for the premises allotted would be Rs.89/- with effect from 1.2.1951. M/s. Dhanraj Gobindram were requested to arrange for the payment of the arrears and to make regular payment in the future to the landlords under intimation to the office of the Controller of accommodation.
n) On 3.7.1951, the Collector of Bombay addressed a letter to the Collector of Accommodation informing him that the premises which had been requisitioned for the defence services as per the order dated 20.9.1946, had been transferred to the Govt. of India, Ministry of Works,Mines and Power with effect from 25.4.1950 and still stood requisitioned under Rule 75-A of the Defence of India Rules.
o. As the 1947 Act was to expire on 31.3.1952 and as it was interalia necessary to validate and save certain requisitions already made, the President ::: Downloaded on - 09/06/2013 14:45:52 ::: 33 promulgated The Requisitioning and Acquisitions of Immovable Property Ordinance 1952 empowering the Central Government to make requisitions. This ordinance repealed the 1947 Act but saved the requisitions made there under. Later, on 14.3.1952, the Parliament enacted the Requisitioning and Acquisition of Immovable Property Act, 1952 for requisition and acquisition of immovable property for the purpose of the Union and for validating and saving certain requisition already made (Hereinafter referred to as the 1952 Act ).Section 24 of the 1952 Act repealed the 1947 Act and the 1952 Ordinance but saved requisitions in respect of property were subject to requisition under the repealed enactments. Section 24 of the 1952 Act was as under.
. 24. Repeals and savings (1) The
requisitioned Land (Continuance of Powers )Act,
1947, the Delhi Premises (Requisition and
::: Downloaded on - 09/06/2013 14:45:52 :::
34
Eviction ) Act, 1947 and the Requisitioning and Acquisition of Immovable Property Ordinance, 1952 and hereby repealed.
. (2) For the removal of doubts, it is hereby declared that any property which immediately before such repeal was subject to requisition under the provisions of either of the said Acts or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under section 3 of this Act and all the provisions of this Act shall apply accordingly.
p. On 19.1.1954, the Secretary of the trust issued a letter to G.P.Goswami (Respondent No.3 in W.P. 1143 of 1990) taking exception to the late payment of rent and stating that the rent was being accepted without prejudice to the rights of the trustees to proceed legally against him. The letter further stated that any payment after 31.1.1955 will be treated as compensation.
::: Downloaded on - 09/06/2013 14:45:52 ::: 35q. By letters dated 1.3.1954, 26.3.1954, 30.4.1954, 15.5.1954 and 15.10.1954, the Secretary of the trust called upon to M/s. A. Wasanth & Co.
to pay increased standard rent. (Respondent No.3 in Writ Petition No.1147/1990).
r.
On 11.5.1955, the Secretary of the trust addressed a letter to the Accommodation Officer making a grievance about the non payment of arrears and sub letting by five tenants of the building who were M/s.A.Wasanth & Co., G.P.Goswami, Widya Wikas Films, The Indian Youth and M/s.Dhanraj Gobindram.
s. On 27.6.1955, the Secretary of the trust issued a letter to G.P.Goswami protesting against the subletting of the premises allotted to him without the content and approval of the trustees and calling upon him to ask the subletee firm B.B.Construction Co. to vacate the premises forthwith. A similar letter was sent by the trust ::: Downloaded on - 09/06/2013 14:45:52 ::: 36 to G.P.Goswami on 28.6.1955.
t. On 25.11.1955 the Secretary of the trust sent an Advocate s notice to the Advocates of Mr.G.P. Goswami categorically stating that he was occupying the first floor of Maneckji Wadia building as a tenant of the trust. The letter stated that he was in arrears of rent ig and had sub let the premises in breach of the terms and conditions of the Bombay Rent Act and called upon to Mr.G.P.Goswami to vacate the premises.
u. On 23.5.1957, the Secretary of the trust addressed a letter to M/s. Dhanraj Gobindram, The letter recorded that it had been reported by the Supervisor of the trust that the premises rented to M/s.Dhanraj Gobindram on the first floor were being occupied by one Lilaram Chimanlal and K.C. Bhavnani. The letter stated the circumstances under which these two individuals had come into occupation of the premises let to M/s. Dhanraj ::: Downloaded on - 09/06/2013 14:45:52 ::: 37 Gobindram was not known and therefore, M/s.Dhanraj Gobindram was called upon to confirm in writing whether they were still in occupation and if so, who were these two persons occupying the same at the same time.
v. By their letter dated 24.5.1957 M/s.Dhanraj Gobindram sent iga reply to the aforesaid letter informing the trust that Mr. K.C. Bhavnani was a person who was carrying on business in partnership with others in the name of M/s.Dhanrajmal Gobindram and that L.C. Bhavnani was his brother.
w. On 25.5.1957 the trust again wrote to M/s.
Dhanraj Gobindran informing him that Mr. L.C. Bhavnani was never allotted any portion of the building by the Controller of Accommodation. The letter further stated that if Shri. Bhavnani had been allotted accommodation by the Controller, the trustees would have accepted him as their direct tenant and regular rent receipts would made out in his name. It further stated that the fact that ::: Downloaded on - 09/06/2013 14:45:52 ::: 38 Shri. Bhavnani was not one of their direct tenant, proved that he was in unauthorized occupation of the premises. (emphasis provided).
x. On 1.5.1959, the Secretary of the trust addressed a letter to M/s. A. Wasanth & Co.
relating to increase in general and water tax and stating that said increase in tax was recoverable from a tenant under Section-10 read with Sec. 10AA of the Bombay Rent Act.
y. On 4.6.1959, the Secretary of the trust addressed a letter to Mr. Dhirajlal Jiwanlal Parekh (Respondent No.3 in Writ Petition No.1146/1990) alleging illegal sub-letting.
z. On 16.6.1959, Minutes of the Meeting of the trust were recorded in which it was admitted that Mr. D.J. Parekh was a tenant of the trust and that the tenancy stood in his personal name. It was further recorded that D.K.Parekh was paying rent of ::: Downloaded on - 09/06/2013 14:45:52 ::: 39 Rs.50.75.It was mentioned that Mr. Parekh must be recovering more than this rent from the licensee and therefore, the trust should start ejectment proceeding against Mr. Parekh.
Z-a. On 8.7.1959 the Secretary of the trust addressed a letter to the Controller of Accommodation alleging illegal subletting by Shri. D.J.Parekh and called upon him to obtain and handover the peaceful and vacant possession of the premises.
Z-b. 20.4.1963, the Secretary of the trust issued notice to M/s.A.Wasanth & Co. stating therein that Municipal Corporation had increased the education cess from 1.4.1963 and contending that they were liable to pay the Municipal education cess. The letter mentioned that the tenants had wrongfully stated their status as contractual tenant and that all rent received after the date of expiry of the notice would be encashed ::: Downloaded on - 09/06/2013 14:45:52 ::: 40 as either statutory rent or compensation.
Z-c. On 20.4.1963, the Secretary of the trust issued a letter to M/s.A.Wasanth &Co. (Respondent No.3 in Writ Petition 1147/1990) demanding an increase in educational cess on the footing that such increase was recoverable from tenants from 1.4.1963.
z-d. On 31.10.1963, the Secretary of the trust issued a notice U/s.12(2) of the Bombay Rent Act to Mr.G.P.Goswami to pay the arrears of rent as provided for in the said section and threatened that if payment was not made, steps will be taken to eject him.
Z-e. On 1.9.1967, the Secretary of the trust issued a letter to M/s.A. Wasanth & Co. demanding an increased education cess on the footing that such increased cess was recoverable from the tenants under the provisions of Maharashtra ::: Downloaded on - 09/06/2013 14:45:52 ::: 41 Education Cess Act, 1967.
z-f. On 11.3.1970, by the Requisitioning and Acquisition (Immovable Property) Act, 1970, the 1952 Act was amended and the power to requisition for the purpose of Union was made a permanent measure. In view of this amendment and certain further later amendments, the commencement of the 1970 Amendment the property could be retained for a perid of 17 years from the date of the commencement and it was made obligatory on he Central Government to release the property from requisition thereafter. In the case of property requisitioned after such commencement, the term of requisition was restricted to 17 years from the date on which the possession of such property was surrendered under Section 4 of the 1952 Act. These measures were introduced by adding sub section 1-A to Section 6 of the 1952 Act. The amended Section 6-(1-a) was in the following terms.
. 6(1-A). Notwithstanding anything contained in sub section (1), the Central Government shall release from requisition-
. (a) any property requisitioned or deemd to be ::: Downloaded on - 09/06/2013 14:45:52 ::: 42 requisitioned under this Act before the commencement of Requisitioning and Acquisition of Immovable Property (Amendment) Act,1970, on or before the expiry of a period of (seventeen years) from such commencement;
. (b) any property requisitioned under this Act after such commencement, on or before the expiry of a period of (seventeen years) from the date on which possession of such property was surrendered or delivered to, or taken by, the competent authority under section4 unless such property is acquired under section 7 within the period of (seventeen years) aforesaid.
z-g. On 12.5.1970, the Secretary of the trust issued a notice to Mr.G.P.Goswami purporting to terminate his tenancy on the basis of non payment of rent and unlawful sub letting. The notice categorically stated that the demand for payment of ::: Downloaded on - 09/06/2013 14:45:53 ::: 43 arrears was being made under the provisions of Section-12(2) of the Bombay Rent Act. On 15.12.1978, the Secretary of the trust issued a letter to Shri.G.P.Goswami stating therein that the arrears of rent had not been paid since March, 1978 and calling upon him to pay the outstanding arrears of rent within eight days.
z-h. On 17.11.1980, the Secretary of the trust addressed a letter to M/s. Widya Wikas Films (Respondent No.3 in Writ Petition No. 1144/1990) alleging that he had illegally sub let the premises.
Z-i. This was replied to by M/s.Widya Wikas Films by their letter dated 29.11.1980 in which they contended that they were monthly tenants of the trust and denied the subletting.
Z-j. In rejoinder thereto, the Secretary of the trust wrote a letter dated 23.12.1980 contending ::: Downloaded on - 09/06/2013 14:45:53 ::: 44 that the order of allotment did not create a tenancy and that the respondent No.3 was merely an occupant under Government allotment and called upon M/s.Widya Wikas Films to vacate the premises in question.
Z-k. On 24.5.1982 the trust addressed a letter to M/s.Dhanraj Gobindram. The letter was addressed for the purpose of recovery of half land revenue assessment in their occupation. The letter clearly mentioned that the addressee Mr. Dhanraj Govindram was a tenant on monthly rent in the premises.
Z-l. On 24.5.1982 the Secretary of the trust issued a letter to M/s. A.Wasanth & Co.
(Respondent No.3 In Writ Petition No.1147/1990) pertaining to recovery of half of the land revenue assessment. This letter admitted that M/s. A. Wasanth & Co. was a tenant on monthly rent.
z-m. On 1.8.1983, the Secretary of the trust ::: Downloaded on - 09/06/2013 14:45:53 ::: 45 issued a letter to M/s. A.Wasanth & Co. (Respondent No.3 in Writ Petition No.1447/1990) pertaining to recovery of increase in taxes /levies by the Bombay Municipal Corporation on the footing that from 1.4.1983 the same was recoverable from the occupant under the Bombay Rent Act.
Z-n. On
23.8.1983 the Secretary of the trust
addressed another letter to M/s. Dhanraj Govindram
calling upon them to discontinue a business of
colour photography, printing and developing work as the premises had been let out only for the legal practice of the occupant. The letter further mentioned that the trust expected the occupant to cooperate as the rent which was being charged for the use of the premises was rock bottom rent.
Z-o. On 16.1.1984, the Assistant Secretary of the trust addressed a letter to M/s.Dhanraj Gobindram and called upon them to remove their photography machine as the premises had been let ::: Downloaded on - 09/06/2013 14:45:53 ::: 46 out to the occupant as an office for his legal practice only.
Z-p. On 1.10.1984, the trustees addressed a letter to the The Indian Youth Magazine (Respondent No.3 in Writ Petition No.1152/1990) seeking recovery of half land revenue after setting out in the letter that the Indian Youth Magazine was a tenant in the property. It appears that the amount demanded was paid and therefore, on 28.3.1985 a receipt was issued to the Indian Youth Magazine stating that it was the tenant s share of contribution.
z-q. On 5.3.1985, the Secretary of the trust addressed a letter to Mr. K.L. Bhavnani informing him that the premises which he was occupying had been let out to M/s. Dhanraj Gobindram. Mr. Bhavnani was called upon to explain the circumstances under which he came into occupation of the premises.
::: Downloaded on - 09/06/2013 14:45:53 ::: 47z-r. It appears that in the year 1985 the trust decided to dispose of the entire building and accordingly an application, being Application No. 182/1985, came to be made to the Charity Commissioner, Greater Bombay for grant of permission under Section 36(1)(a) of the Bombay Public Trust Act, 1950, for sale of the building to one Mr. R.J. Parekh for a consideration of Rs.1.75 Crores. This application categorically mentioned that the property was fully tenanted.
z-s. It appears from the record that in these proceedings before the Charity Commissioner, a valuation report dated 19.10.1985 prepared by a Chartered Surveyor and Property Valuer Shri. R.J.Sethna came to be filed as annexure to an affidavit of the trustee R.N. Bhavnagari, affirmed on 24.10.1985. This valuation report is filed on record in Writ Petition No.1143 of 1990. This valuation report also mentioned that the entire property was tenanted and the owners were deriving ::: Downloaded on - 09/06/2013 14:45:53 ::: 48 a rental income of Rs.2,97,410.4068 per month.
That, ultimately, by his order dated 10.12.1985, the Charity Commissioner State of Maharashtra granted his sanction under Section 36(1)(a) for sale of the building to M/s.E.J.Parekh for the price of Rs.1.75 Crores. The order noted that the tenants in that event would still remain tenants and only the landlord would be changed. Ultimately by a registered deed of conveyance dated 20.12.1989 the trust sold the property to the petitioner No.1 for 1.75 Crores.
Z-t. On 26.5.1986 on behalf of the trust, a legal notice was issued to the General Administration Department,State of Maharashtra contending that the premises had been requisitioned by Govt. order dated 11.4.1951 in purported exercise as powers conferred by Section 6(4), sub section (a) of the Bombay Land Requisition Act, 1948 and requesting the State Government to release the said premises from requisition and directing ::: Downloaded on - 09/06/2013 14:45:53 ::: 49 the allottees to surrender vacant and peaceful possession to the trust. It was contended in this letter that the requisition was not for a public purpose as the allotment had made to private persons and therefore, the allotment was illegal and void ab-initio.
Z-u .
On 24.5.1988, the Secretary of the trust addressed a letter to the Indian Youth Magazine (Respondent No.3 in Writ Petition No.1150/1990) addressing him as a tenant and asking for contribution towards the repairs of the lift.
Z-v. On 12.9.1988, the Secretary of the trust addressed a letter to the Indian Youth Magazine, (Respondent No.3 in Writ Petition 1150 of 1990) stating that the repairs of three remaining storage tanks could not be done without 50 per cent contribution by the tenants, pro rata with their rent. The Indian Youth Magazine was called upon to pay Rs.40/-.
::: Downloaded on - 09/06/2013 14:45:53 ::: 50Z-w. On 22.12.1989 the Secretary of the trust addressed a letter to M/s. Dhanraj Gobindram informing them about the sale of the building to petitioner No.1, requesting them to attorn their tenancy to petitioner No.1 and to pay them the monthly rent with effect from 1.1.1990.
Similar letters
ig were also written to the other
allottees. The allottees accordingly started
paying rent to the petitioner No.1 who accepted
the same and started issuing rent receipts without prejudice to the rights and contentions of parties.
Z-x. On 13.2.1990, on behalf of the petitioners a letter was addressed to the Secretary, General Administration Department, State of Maharashtra contending that the premises had been requisitioned under Government Order dated 11.4.1951. In the letter, it was contended by the petitioners that the provisions of Bombay Land Requisition Act could be resorted to only for a public purpose which was ::: Downloaded on - 09/06/2013 14:45:53 ::: 51 not done in the present case. The State Government was requested to direct the concerned officer to release the aforesaid premises from requisition under Section 9 of the Bombay Land Requisition Act, on failure of which, the petitioners would have to resort the legal proceedings.
z-y.
On 26.2.1991, the Indian Youth Magazine (Respondent No.3 in Writ Petition No.1152/1990) addressed a letter to Petitioner No.1 placing on record that he was being treated as contractual tenant, that he had received a letter of attornment dated 22.12.1989 and was therefore, making payment of rent.
z-z. On 10.12.1991, a show cause notice under Section 8-C)2)(a) of the Bombay Land Requisition Act, 1946 was served upon Mr.K.B. Bhavnani and other occupants of the premises and after hearing the parties concerned, on 3.1.1992 The Controller of Accommodation in exercise of the powers under ::: Downloaded on - 09/06/2013 14:45:53 ::: 52 Bombay Land Acquisition Act directed the occupant K.B. Bhavnani (Respondent No.5 in Writ Petition No. 2421/1992) to vacate the said premises within 30 days from the date of the order and to handover the vacant possession to the Government. On 31.1.1992 Shri.K.B.Bhavnani filed an appeal against the order dated 3.1.1992 before the State of Maharashtra.
However, it appears that by a further order dated 14.5.1992 the Controller of Accommodation was pleased with withdraw the earlier order dated 3.1.1992.
z-z-a. On 30.7.1994, the Controller of Accommodation addressed a letter to M/s. A.Wasanth & Co. ( Petitioner in Writ Petition No.2454/1994) for vacating the premises occupied by him in the building on the footing that he was a Government allottee and that under the Judgment of the Supreme Court delivered in Writ Petition No.440/1983 and 27/1994 filed by the State Government Employees Union, the Government was duty bound to return all ::: Downloaded on - 09/06/2013 14:45:53 ::: 53 the requisitioned premises before 31.12.1994.The letter further stated that if the premises were not handed over within the prescribed time limit, possession of the premises would be taken and that the addressee would be required to face contempt court proceeding for not obeying the Supreme Court directions.
3. In the aforesaid circumstances, in 1990, Writ Petition Nos.1142/1990, 1143/1990, 1144/1990, 1145/1990, 1146/1990, 1147/1990, 1150/1990, 1152/1990 and 1153/1990 came to be filed by the petitioners i.e. present owners of the property.
The petitioner No.1 in these petitions was a company and present owner of the building and the petitioner No.2 was a director of the company.
These petitions sought a writ of mandamus or any other writ for release of the properties in question from requisition and for handing over of the vacant possession of the said premises to the petitioners and also sought relief to set aside the ::: Downloaded on - 09/06/2013 14:45:53 ::: 54 requisition/allotment order in respect of the requisitioned premises. The Petitioner Nos. 3 to 7 in these petitions were the present trustees of the trust. The Accommodation Officer/State of Maharashtra, Allottees, Collector of Bombay and the Union of India were the Respondents.
4. Writ Petition No.2421/1992 was later filed by the present owner i.e. Prime Properties Pvt. Ltd.
and their director, who were the petitioners
therein, against the State of
Maharashtra,Controller of Accommodation,Collector
of Bombay, Union of India and M/s. Spectrum
Business and Communication Centre through its sole Proprietor Shri. Pratap Bhavnani. This petition was filed for a declaration that the continued requisition of the premises being first floor of Maneckji Wadia Building under requisition order dated 28.9.1946 was illegal. A Writ of Mandamus or any other writ was sought directing the respondents to derequisition the premises and to ::: Downloaded on - 09/06/2013 14:45:53 ::: 55 handover the vacant and peaceful possession of the same to the petitioners.
5. Writ Petition No.2454 of 1994 was filed by A.Wasant & Co. i.e. One of the allottee for a declaration that the premises were not requisitioned under the provisions of the Bombay Land Requisition Act and for the quashing of a letter dated 30.7.1994 addressed by the second respondent to the petitioner to vacate the premises by 30.11.1994.
6. We have heard both sides and perused the record. The contentions raised on behalf of the parties can be formulated as under.
a) According to the petitioners, a requisition made under Rule 75A of the Rules and continued under later enactments could not be released without an order in writing, specifying the person to whom possession is to be given. Since ::: Downloaded on - 09/06/2013 14:45:53 ::: 56 this was not done except in the case of a part of the fifth floor, the requisition legally continued to this day and therefore the prayer seeking a Writ of Mandamus for a direction to pass an order of requisition was necessary and proper. In support of this contention. Reliance was placed on ...
i) Clause 4 of the 1946 Ordinance
ii) Section 4 of the 1947 Act
iii) Section-2 of the 1951 Act
iv) Section 23 of the 1952 Act . v) Judgment of the Apex Court in the case of Harish Nigam Vs. State of U.P. and others reported in 1980 VJ (S.C.) 340.
. The response of the contesting respondents to this proposition is that the impugned requisition order issued by the Collector of Bombay in exercise of the powers under the rules are no longer subsisting and therefore, the prayer (b) for staying such non existant requisition order cannot ::: Downloaded on - 09/06/2013 14:45:53 ::: 57 be granted.
. b) According to the petitioners the act of handing over of the requisitioned premises to the Controller of Accommodation who was an officer of the Government of Bombay was an act without authority of law and the further act of the Controller of ig Accommodation handing over the premises to various private allottees was firstly an act without authority of law and also otherwise illegal as the private allotment was not for a public purpose. These illegal acts had resulted in deprivation of property within the meaning of Article 300A of the Constitution of India. The allottees and their alienees were therefore liable to be evicted. In support of this contention reliance was placed on ....
. i) A Judgment of the Apex Court in the case of Union of India Vs. Ram Kanwar reported in AIR 1962 S.C. 247.
::: Downloaded on - 09/06/2013 14:45:53 ::: 58. ii) A Judgment of a Single Judge of this court (Deshmukh, C.J.) in the case of the State of Maharashtra Vs. Ibrahim Nagree reported in 1979 (82) B.L.R. 19.
. iii) A Judgment of a Single Judge of this court
( Daud,J.)
in the case of Hasan Kardlia Vs.
D.S.Soman delivered on 23.3.1987 in Writ Petition No.956/1986.
. iv) A Judgment of a Single Judge of this court (Daud, J.) dated 3.11.1987 in the case of Pankaj Mehta Vs. The State of Maharashtra confirmed in Appeal by a Division Bench and later by the Apex Court.
. The response of the contesting respondents is that they were earlier tenants in the Menka building which was proposed to be taken over by the ::: Downloaded on - 09/06/2013 14:45:53 ::: 59 People s Education Society for the use of Siddharth College of Arts and in such circumstances, a arrangement was arrived at between the Government of India and the State Govt. and the tenants in Menka building were offered premises in the building as direct tenants of the owners.
Consequently, the allotment order was issued to them. There was no illegality in this action as landlords accepted them as their direct tenants which was permissible in law.
c) According to the petitioners since the requisition contended till today, the right of the landlord to create a tenancy during the subsistance of a requisition order remained suspended in view of the fact that the allottee was a licensee of the Government and even if rent receipts were issued or correspondence exchanged, addressing the allottee as a tenant, since the very creation of tenancy was impermissible in law, the allottee was not entitled to take advantage of the same and was thus liable ::: Downloaded on - 09/06/2013 14:45:53 ::: 60 to be evicted.
. In support of this contention, reliance was placed on the following.
. i) A Judgment of a Single Judge of this court (Shah, J.) in the case of Dawoodali Vs. State of Bombay, reported in A.I.R. 1954 Bombay 323.
. ii) A Judgment of a Division Bench of this court (Vaidya & Dudhia, JJ.) in State of Maharashtra Vs. N.M.Shah reported in 1974 Mah.L.J.
589. . iii) A Judgment of the Apex Court in the case of H.D.Vora V/s. The State of Maharashtra reported in AIR 1984 S.C. 866.
. iv) A Judgment of a Division Bench of this court (Pendse & Jhunjhanwala, JJ.) delivered on ::: Downloaded on - 09/06/2013 14:45:53 ::: 61 21.9.1994 in Writ Petition No.1584 of 1992 between Shapoorji Data Processing Ltd. Vs. The State of Maharashtra.
. v) A Judgment of a Single Judge of this court in the case of P.M.Rungta Vs. The State of Maharashtra delivered on 20.2.1990 in Writ Petition No.41/1980.
. vi) A Judgment of a Division Bench of this court (Shah,C.J. & Savant,J.) delivered on 6.3.1996 in Writ Petition No.268 of 1996.
. vi) A Judgment of a Single Judge of this court in the case of P.M.Rungta Vs. The State of Maharashtra delivered on 20.2.1990 in Writ Petition No.41/1980.
. vii) A Judgment of the Apex Court in the case of Roy Estate U/s. State of Jharkhand and others ::: Downloaded on - 09/06/2013 14:45:53 ::: 62 delivered on 1.5.2009 in Civil Appeal No.3146/2009.
. The response of the contesting respondents in this regard was that there was no subsisting requisition order and in the absence of such an order or even otherwise, it was open for the landlords to induct a direct tenant and accordingly, ig the landlords had inducted and recognized the allottees as their direct tenants.
d) According to the petitioners, the requisition could not be allowed to continue for an indefinite period of time. Reliance was placed on a judgment of the Supreme Court in the case of Grahak Sanstha Manch and others Vs. The State of Maharashtra, reported in 1994 (3) S.C. 474.
. The response of the contesting respondents was that the requisition had come to an end in the year 1952 and therefore this issue which pertained to wrongful continuation of the requisition for an ::: Downloaded on - 09/06/2013 14:45:53 ::: 63 indefinite period of time did not survive.
e) According to the petitioners, the same requisition order was set aside by a Division Bench of this court, in respect of another allottee vide a judgment dated 15.9.1994 delivered in Writ Petition No.1151/1990.
. The response of the contesting respondents was that the Division Bench had not taken into account the question of acceptance of the allottees as direct tenants by the landlords.
f. In addition, the respondents raised a contention that since the requisition came to an end in or about 1952, the petition was liable to be dismissed on the ground of latches. The response of the petitioners was that the petition should be dismissed on the ground of latches as the continuing requisition was in the nature of continuing wrong and as this court had admitted ::: Downloaded on - 09/06/2013 14:45:53 ::: 64 and entertained this petition several years ago.
7. In our view, the contention of the petitioners as raised in Para 6(a) that the requisition subsists for want of a formal written order of release needs to be accepted. The requisition order dated 20.9.1946 passed under Rule 75A of the Defence of India Rules stated that it would continue during the war and for a period of six months thereafter or any such shorter period as may be specified by the A.D. Lands Hiring and Disposal Services. The Defence of India Act and Rules framed there under were also in force during the period of war and during the period six months thereafter.
The requisition order was therefore, co terminus with the Defence of India Act, 1939. The Defence of India Act 1939 and the Rules framed there under expired on 30.9.1946. With effect from 1.10.1946, the 1946 Ordinance was brought into force and Clause-3 of this Ordinance continued the requisitions made under the Defence of India Act, ::: Downloaded on - 09/06/2013 14:45:53 ::: 65 notwithstanding its expiry. Clause-4 of this ordinance required that releases from requisition should be by an order in writing. This Ordinance was replaced by the 1947 Act and under this Act the requisitions made under Defence of India Act were further continued. Section 4 of this Act also required that any release from requisition was to be made by an order in writing. The 1947 Act was however, continued by 1951 Act and by virtue of Section 2 thereof the 1947 Act was continued in Part-A states till 1.4.1952 as provided for in the said section. It is however, seen that within this extended period, initially the 1952 Ordinance was promulgated on 25.1.1952 and this was later replaced by the 1952 Act which was enacted on 14.3.1952. It is seen that by Section 24 of the 1952 Act both the 1947 Act as well as 1952 Ordinance stood repealed but property which was immediately before such repeal, subject to provisions of 1947 Act or the 1952 Ordinance, was deemed to be the property requisitioned under ::: Downloaded on - 09/06/2013 14:45:53 ::: 66 Section 3 of the said said Act. The present requisition was therefore saved and continued by operation of Section 24 of the 1952 Act. It is further seen that the 1952 Act was amended in 1970 and by virtue of the said amendment and some later amendments, the period of requisition under the 1952 Act was extended for a period of 17 years from the commencement of the amendment. It is however, seen that under Section 6(2) of the 1952 Act, where any property was to be released from requisition, the competent authority was required to specify by an order in writing the person to whom possession of the property was to be given and such possession was as far as practicable to be given to the person from whom possession was taken at the time of the requisition or to the successors in interest of such person. In our view, therefore, in view of Section 6(1-A)(a) requisition in the present case expired on 11.3.1987. However, since the procedure under Section 6(2) of the 1952 Act has not been followed for a very long period of ::: Downloaded on - 09/06/2013 14:45:53 ::: 67 time thereafter, it could be necessary to give suitable directions in this regard to the competent authority. It may be stated here that the finding recorded by us is in consonance by a recent judgment delivered by the Apex Court in the case of Roy Estate (supra) wherein the Apex Court has held that a requisition under Defence of India Act was continued under ig 1952 Act and continued for a period of 17 years after the 1970 Amendment i.e. Till 1987.
8. The contention raised in Para Nos. 6(b) and 6(c) pertains to legal status of the allottees since no provision of law has been shown to us under which the Controller of Accommodation was authorized to hand over handed over the premises to various allottees, it may be that initial order of allotment may not be with the authority of law, but the peculiar facts of this case indicate that there is substantial prima facie evidence to indicate that the original owners accepted the ::: Downloaded on - 09/06/2013 14:45:53 ::: 68 allottees as their direct tenants. It is seen from the order of allotment that in the order of allotment passed by the Controller of Accommodation, allottees were only asked to occupy the requisitioned premises. None of the letters written by the Controller of Accommodation to the allottees mention that they were being granted any tenancy rights or were required to pay any rent to the trust. The letters only talk about the payment of monthly compensation to the trust. It is seen that, thereafter, some of the tenants started forwarding amount stating the same to be rent and without any compulsion from any Government authorities, the landlord started issuing receipts in which the amount received was termed as statutory rent. The voluminous correspondence prima facie indicates that the allottees were being referred to and treated as tenants by the trust.
There are other letters written by the trust which prima facie indicate that the trustees had accepted the allottees as their direct tenants. For ::: Downloaded on - 09/06/2013 14:45:53 ::: 69 example, in the letter dated 25.5.1957 written by the trust to M/s.Dhanrajmal Govindram who was one of the allottee, it was contended that if Shri. Bhavnani was allotted the accommodation by the Controller, the trustees would have accepted him as their direct tenant and regular rent receipts would have been made out in his name . Further, in a letter dated 8.7.1959 and others an allegation of illegal subletting was made against one of the allottee Mr. D.J.Parekh. Again on 31.10.1963, the Secretary of the trust had issued notice U/s.12(3) of the Bombay Rent Act to one of the allottee Mr. G.P.Goswami. Then, in the proceeding before the Charity Commissioner premises were shown to be fully tenanted and and even the valuation was made on this footing. The Charity Commissioner s order was passed on the footing that the building was fully tenanted. Then after the premises were conveyed to the present petitioners, the allottees were sent letters and attorning their tenancy in favour of the present petitioners. In several ::: Downloaded on - 09/06/2013 14:45:53 ::: 70 letters written by the trust to the allottees, they were referred as tenants even though there was no insistance by the Government authorities to recognize the allottees as tenants. If indeed they were accepted as direct tenants by the trust then the petitioners who were successors in interest cannot stand ig on higher footing. If their predecessor in interest were wearing sandals of leather the petitioner cannot pretend to wear sandals of gold. We have only referred to some of the correspondence which prima facie indicate that the allottees were treated as direct tenants. We are refrained from giving any final finding in this regard in this proceeding as the adjudicating this issue may require evidence before a competent court. We however, feel that this cannot be finally decided in the present proceedings and that, such an issue of creation of a direct tenancy also ::: Downloaded on - 09/06/2013 14:45:53 ::: 71 cannot be decided by the competent authority while acting under Section-6(2) of the 1952 Act.
9. We do not accept the contention of the petitioners that the right of the landlord to create a direct tenancy is suspended merely because an order of requisition is made. No statutory provision has been pointed out which prevents the landlord from creating a direct tenancy.
10. We are alive to of the fact that, in the case of H.T. Vora (supra) and Roy Estate (supra) the Apex Court held that payment of rent directly to the landlord and acceptance of such rent did not have an effect of putting an end of the order of requisition as such payments were with the express or implied assent of the State Government. In the present case, however, there is additional material to indicate that a direct tenancy may have been created. The facts of the present case however, show that the allotting authorities did not call ::: Downloaded on - 09/06/2013 14:45:53 ::: 72 upon the allottees to pay rent and did not call upon the trust to accept rent. Besides that, the further acts on the part of the trust such as referring to the allottees as tenants, showing the building as tenanted in a proceeding before the Charity Commissioner, stating in correspondence that an allottee would be treated as a direct tenant and sending letters of attornment are features and which were not existing in the cases before the Apex Court. Such voluntary acts on the part of landlord are not to be found or dealt with in any of the judgments cited on behalf of the petitioners. In Dawoodali s case (supra) cited by the petitioners, this court was not called upon to deal with the question of suspension of the landlord s right to create a tenancy. In the case of State of Maharashtra Vs. N.M.Shah (supra) cited by the petitioner again this aspect was not considered. However, what is to ne noted in this judgment is in Para-10, this court allowed the request made by the allottee for time to make a ::: Downloaded on - 09/06/2013 14:45:53 ::: 73 representation for the creation of a direct tenancy with the landlord. This concession was on a premise that such a course was legally permissible.
In the case of Shapoorji Data Processing Ltd.
(supra), the requisitioning authority was the State Government whereas the allottee was the Central Government. The Central Government claimed to be a tenant in view of the contents of the allotment order. It was not a case where the landlord has performed any voluntary act to indicate the acceptance of the Central Government as his direct tenant. Thus, the authorities cited before (other than a judgment of the Single Judge of this court in the case P.M. Rungta (supra) with which we will presently deal) do not support such a proposition. In the case of P. M. Rungta no doubt a Single Judge of this court while dealing with a contention that a trust must be held to have accepted an allottee Mr. Chabriya as a direct tenant by referring to him as a monthly tenant and asking to vacate the premises observed as follows.
::: Downloaded on - 09/06/2013 14:45:53 ::: 74. Indeed it was not permissible either for the Trustees or for Chhabra to enter into any contract of lease while the order of requisition was still in operation .
. This observation is not based upon any reasoning and does not indicate any provision of law or authority on the basis of which such a proposition of law could be based.
. To our mind the right of a landlord to let out his premises is a right which flows from his right of ownership. This right is not extinguished merely because his property is requisitioned. In Mangelal Karwa Vs.State of M.P. Reported in A.I.R. 1955 Nagpur 153, High Court dealt with the nature and consequences of requisition in the following words.
. If the term requisition has acquired any ::: Downloaded on - 09/06/2013 14:45:53 ::: 75 technical meaning during the two World Wars it has been used in the sense of taking possession of property for the purpose of the State or for such purpose as may be specified in the statue authorising a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired. In requisition the property dealt with is not acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes. Even for this limited purpose, however, the owner becomes entitled to compensation, because requisition of the property amounts at least to a temporary deprivation of the property .
. The distinction between the concepts of ::: Downloaded on - 09/06/2013 14:45:53 ::: 76 acquisition and requisition was also dealt with by the Apex Court in the case of H.D.Vora (supra) .In this regard, in Para-6 of the Judgment, the Apex Court observed as under.
. There is a basic and fundamental distinction recognized by law between requisition and acquisition. The ig Constitution itself in Entry 42 of List III of the Seventh Schedule makes a distinction between acquisition and requisitioning of property. The original Article 31 Clause (2) of the Constitution also recognized the distinction between compulsory acquisition and requisitioning of property. The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. Vide :
::: Downloaded on - 09/06/2013 14:45:53 ::: 77Observations of Mukherjee, J. In Chiranjit Lal Case. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and ig must by its very nature be of temporary duration .
. The observations of the Nagpur High Court in the case of Mangelal Karwa were quoted and approved by the Apex Court in the case of Jiwani Kumar Paraki Vs. First Land Acquisition Collector reported in (1984) 4 SCC Page-612. In Para Nos. 16 and 17 the Apex Court observed as under.
. 16. Thus, normally the expression requisition is taking possession of the property for a limited period in contradistinction to ::: Downloaded on - 09/06/2013 14:45:53 ::: 78 acquisition . This popular meaning has to be kept in mind in judging whether in a particular case, there has been in fact any abuse of the power.
. 17. Orders of requisition and acquisition have different consequences. These have been noted by this Court in the observations of Mukherjee, J. in the decision in the case of Chiranjit Lal Chowdhari Vs. Union of India and the distinction between requisition and acquistion is also evident from Entry 42 in List III of the Seventh Schedule.
Original Article 31 clause (2) of the Constitution recognized the distinction between compulsory acquisition and requisition of the property. The two concepts are different; in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requiring authority. One is the taking over of the title and the other is the taking over of the possession .::: Downloaded on - 09/06/2013 14:45:53 ::: 79
. We note that the observations of the Nagpur High Court in the case of Mangelal Karwa (supra) was approved by the Apex Court in Jiwani Kumar Paraki case (supra) and were further approved by the Constitution Bench of this court in the case of Grahak Sanstha Manch Vs. State of Maharashtra reported in 1994(3) S.C. 474.
. All these observations lead us to the conclusion that requisitioning of a property released leads to a temporary deprivation of the landlord from using and possessing his property but otherwise does not distract from his title. It is still open for him to accept a direct tenant whose right to use and possess the property may remain suspended during the period of requisition if he is a person other than a Government allottee. That is however, different than saying that the right of the landlord, to create a direct tenancy is curtailed or suspended. A situation can be countenanced where an owner may voluntary choose ::: Downloaded on - 09/06/2013 14:45:53 ::: 80 to confer a direct tenancy right upon a Government allottee and if this happens without compulsion, the State Govt. allottee who is already in use and occupation may be vested with the rights and protections available to a tenant. We therefore, are not in agreement with this observation of the learned Single Judge in the case of P.N.Rungta (supra).
12. As regards the contention of latches raised by the Respondents, since we have found that the requisition subsists in the absence of as order of release as contemplated by Section 6(2) of the 1952 Act, we hold that the petition does not suffer from latches. This apart from the fact that the petition has been admitted and entertained more than a decade ago.
13. We find that in so far as Writ Petition No. 2454 of 1994 is concerned, the prayer clause (b)
(ii) seeks quashing and setting aside the letter ::: Downloaded on - 09/06/2013 14:45:54 ::: 81 dated 13.7.1994 addressed by Controller of Accommodation who is the second Respondent calling upon the first Petitioner to vacate the premises by 30.11.994. In view of our findings, such a letter will be required to be quashed. In the net result, in view of our finding hereinabove, we pass the following order.
ig ORDER
a) Writ Petition Nos. 1142 of 1990, 1143 of 1990,
1144 of 1990, 1145 of 1990, 1146 of 1990, 1147 of 1990, 1150 of 1990, 1152 of 1990, 1153 of 1990, and 2421 of 1992 are partly allowed.
b) In view of the finding that the requisition subsists for want of passing of a release order, the Controlling Authority is directed to pass an order in respect of the requisitioned premises in the building releasing the same from requisition.
He shall however, only handover formal and not physical possession to the Petitioners.
::: Downloaded on - 09/06/2013 14:45:54 ::: 82c) The prayer of the petitioners to direct the allottees or present occupants to vacate the premises and put them in peaceful possession is not granted. However, it is clarified that the petitioner Nos. 1 and 2 will be at liberty to seek eviction of the allottees or any person in occupation by filing proceedings in a competent court of civil ig jurisdiction, in accordance with law.
d) Writ Petition No.2454 of 1994 is allowed in terms of prayer clause (b)(ii).
e) There will be no order as to costs.
(D.K.DESHMUKH, J.) (R.S.MOHITE, J.) ::: Downloaded on - 09/06/2013 14:45:54 :::