6 May 2023 10:28 AM GMT
The Bombay High Court on Thursday directed the Maharashtra government to handover possession of two South Mumbai flats back to the owner, a 93-year-old woman, over eighty years after they were requisitioned in 1942.A division bench of Justice RD Dhanuka and Justice MM Sathaye partially allowed a writ petition filed by one Alice D’souza, owner of the flats, to the extent of directing...
The Bombay High Court on Thursday directed the Maharashtra government to handover possession of two South Mumbai flats back to the owner, a 93-year-old woman, over eighty years after they were requisitioned in 1942.
A division bench of Justice RD Dhanuka and Justice MM Sathaye partially allowed a writ petition filed by one Alice D’souza, owner of the flats, to the extent of directing State government to give her possession of the flats.
"...State Government to handover vacant and peaceful possession of the subject matter premises to the Petitioner therein i.e. the Owner, after taking its possession from the Occupants, within 8 weeks from today (May 4, 2023)”, the court held.
The two flats are on the first floor of a building named Ruby Mansion situated in Carnegy Lines, Mumbai. The State government requisitioned them from D’souza’s father HS Dias on March 28, 1942 under the Defence of India Rules. On July 17, 1946, the Governor of Bombay under Rule 81(2) of the DoI Rules directed the owner to let the flats to one DS Laud, a government servant, w.e.f. the date the requisition is withdrawn.
The Collector of Bombay, on July 24, 1946, withdrew the requisition w.e.f. from August 1, 1946. The Collector on July 27, 1946, ordered the possession of the flats to be released and be given back to the owner. Despite this order, the possession of the flats was not handed over to the owner.
On June 21, 2010, the Collector of Accommodation under the Bombay Land Requisition Act (BLR Act), 1948, directed Mangesh Laud and Kumud Fondekar, son and daughter of DS Laud, to vacate the flats within 30 days and hand over the vacant possession to the state government. The Principal Secretary, General Administration Department, upheld this order in an appeal.
Fondekar, who subsequently passed away, and the heirs of Mangesh Laud filed the present writ petitions challenging this order. Alice D’souza also filed a writ petition challenging the requisition order and seeking to implement the order withdrawing requisition.
The Lauds argued that the compulsory letting order (dated July 17 1946) and the order withdrawing requisition (dated July 14, 1946) were passed before the BLR Act came into force. Thus, the impugned orders of Controller of Accommodation as well as Appellate authority under are without jurisdiction, they argued.
The State submitted that the possession of the flats hasn't been handed back to the owner since the requisition. Thus, the flats continue to remain in requisition and the state’s obligations have not been discharged.
In light of this specific statement by the State and the fact that the possession was never handed back to the owner, the court held that the de-requisition of the flats was not complete. Hence, the Bombay Land Requisition Act will apply in this case, the court said. The court said that the BLR Act gives the state far and wide powers and existing requisitions are covered under it.
The Lauds contended that the original occupant DS Laud was a tenant as per the order dated July 17, 1946 directing compulsory letting to him once the requisition is withdrawn.
The court held since the property remained under requisition, the July 17, 1946 and July 24 1946 orders read together did not create tenancy between Alice’s father and DS Laud. Thus, this is not a case of letting by operation of law, the court said.
The Lauds also contended that from 1961 to 1986, their father and grandfather have been duly paying rent to the owner and produced eight rent receipt copies to support this contention.
The court called it a desperate attempt to cling on to a property. “This is a desperate attempt by the Occupants to cling on to a property. A landlord cannot be expected to continue with injustice of not having his own property at his disposal and at the same time, also not accept any compensation. It is too much to expect from an owner”.
The court noted that the original legal relationship between the owner and the occupants of the requisitioned flats was created on the basis of the July 17, 1946 order. Payment of rent by DS Laud and his heirs and the acceptance by the owners cannot change the original legal relationship between them, the court held.
“issuance of a few rent receipts by owner to the occupants in case of requisitioned premises, does not amount to change of legal relationship between them or any admission of landlord tenant relationship, especially when non-handing over of possession to Owner, has resulted in the said premises remaining under requisition”, the court held.
Therefore, the court upheld the impugned orders and dismissed the writ petitions filed by the occupants.
Senior Advocate Mustafa Doctor along with Advocates Cyrus Ardeshir, Nigel Quraishy and Dushyant Kumar represented Alice D’souza.
Senior Advocate Sharan Jagtiani along with Advocates Surabhi Agarwal, Sneha Chavan, Vachan Bodke, Aniket Tawde, Trupti Talati and Hitesh Gupta represented DS Laud’s heirs.
Additional Government Pleader Abhay L. Patki represented the State.
Case no. – Writ Petition No. 925 of 2012
Citation: 2023 LiveLaw (Bom) 238
Case title – Alice D’souza, v. State of Maharashtra and Ors.
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