Supreme Court Asks Maharashtra Police To Vacate Bombay Flats Held Since 1940s; Criticises HC For Rejecting Owners' Writ Petition

The Supreme Court recently set aside the Bombay High Court's judgment which had refused to entertain a writ petition seeking the recovery of possession of flats unlawfully occupied by the Maharashtra Police Department since 1940, a period spanning 84 years, without rent payment and in violation of property rights, solely on the ground that an alternative remedy in the form of a civil suit was available.

The Court termed the High Court's approach to be erroneous forcing the litigant to knock on the doors of the civil court to file a civil suit after 84 years of illegal occupation by the Respondent/Police Department. Instead, the Court noted that the High Court would have been justified to exercise its Writ Jurisdiction under Article 226 of the Constitution to direct dispossession of the Respondents without asking the Appellants to institute a suit.

“This is one of those cases wherein the High Court should have readily exercised its writ jurisdiction. The constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the party concerned. Injustice, whenever and wherever it takes place, should be struck down as an anathema to the rule of law and the provisions of the Constitution.”, the Court said.

The bench comprising Justices JB Pardiwala and R Mahadevan heard the case where the High Court refused to allow the Appellant's writ petition seeking possession of their two flats unlawfully occupied by the Respondent-Police Department in 1940, whose rent remained unpaid since 2008.

The High Court instead, asked the Appellant to file a civil suit stating that writ jurisdiction can't be exercised when there exists an alternate relief.

Disagreeing with the High Court's findings, the Court stated that the High Courts may exercise their discretionary powers under Article 226 of the Constitution in exceptional circumstances even when an alternative remedy is available.

“To ask the appellants to file a suit and recover the possession would be like adding insult to the injury. At this point of time, if the appellants are asked to institute a suit, we wonder how many years it would take by the time the litigation would come to an end if at all it reaches upto the highest Court of the country. These are the hard facts, the High Courts are expected to keep in mind in today's times.”, the court said.

“The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. There can be many contingencies in which the High Court may be justified in exercising its writ jurisdiction inspite of availability of an alternative remedy.”, the court added.

The Court noted that in 1940s, India was under the British rule and the police then might have forced the predecessors of the appellants to hand over the possession.

"The High Court should have kept the year in mind i.e. 1940. This country was ruled by the Britishers. The country was fighting hard to seek independence from the Britishers. Bombay in the year 1940 was altogether different. At the relevant point of time, the Department perhaps might have persuaded the appellants or their predecessors in title to part with the possession of the two flats for the Police Department. However, it has been now 84 years that the Police Department has been in occupation and use of the two flats. Look at the conduct of the Department. We are informed that past eighteen years even rent has not been paid."

Accordingly, the appeal was allowed and the DCP was directed “to file an undertaking on oath stating that the Department shall hand over vacant and peaceful possession of the two flats in question definitely to the appellants within a period of four months from today. Such undertaking in the form of affidavit shall be filed within one week from today before the Registry of this Court.”

Case Title: NEHA CHANDRAKANT SHROFF & ANR. VERSUS THE STATE OF MAHARASHTRA & ORS.

Citation : 2025 LiveLaw (SC) 430

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