Case Note & Summary
The writ petition arose from a dispute regarding Room No. 26, Chhotani Building, Lower Parel, Mumbai. The petitioner was the landlord of the building. The premises had been requisitioned under the Bombay Land Requisition Act, 1948, and allotted to one Nilkanth Balkrishna Gokhale, the father-in-law of the first respondent, during his government service. After his retirement and the passing of an eviction order on 15 February 1993, which was upheld through appeal, the State took forcible possession of the premises on 22 September 2008, acting under a Supreme Court order in Civil Appeal No. 2026 of 2000. On 9 August 2010, the competent authority passed a de-requisition order under Sections 9(1) and 9(3) of the Act, but instead of restoring possession to the landlord, the authority addressed a letter dated 10 August 2010 to the first respondent, the daughter-in-law of the original allottee, asking her to obtain possession. The landlord challenged these orders by filing the writ petition under Article 227 of the Constitution on 11 January 2011. The first respondent had also filed a declaratory suit (RAD Suit No. 1505 of 2011) before the Small Causes Court, Mumbai, claiming tenancy, which was dismissed on 26 June 2015 with a finding that she was not a tenant; an appeal was pending. The landlord contended that no provision under the Bombay Land Requisition Act authorised the State to give possession to a third party after de-requisition, that the original allottee’s rights had extinguished, and that the respondent no.1 had no independent right. The first respondent argued that she had paid rent and that the landlord had accepted it, thereby creating a tenancy. The State, in its affidavit, admitted the obligation to deliver possession to the landlord but had nevertheless acted contrary to that obligation. The Court examined the statutory framework and held that once the premises were de-requisitioned, the State Government was bound to deliver possession to the landlord and had no power to retain or hand over possession to any third party. The payment of rent during the period when the premises were in the State’s possession did not create any tenancy in favour of the first respondent, as she was not a tenant, and the landlord had no control at that stage. The impugned orders were found patently illegal and without jurisdiction. The Court quashed the orders dated 9 August 2010 and 10 August 2010 and directed respondent nos. 2 and 3 to hand over vacant and peaceful possession of the suit premises to the petitioner within four weeks. The petition was allowed with no order as to costs.
Headnote
A) Bombay Land Requisition Act - De-requisition and Restoration of Possession - Obligation of State - Bombay Land Requisition Act, 1948, Sections 9(1) and 9(3) - Upon de-requisition, the State Government’s authority over the premises terminates and it must deliver possession to the landlord; the state has no power to hand over possession to any third party, as that would be contrary to law and the specific directions issued (Paras 17-18, 21, 25-26). B) Bombay Land Requisition Act - Rights of Government Allottee - Termination on De-requisition - Bombay Land Requisition Act, 1948 - A government allottee holds premises only during the subsistence of the requisition; upon de-requisition, all rights cease and the occupant becomes an unauthorised occupant with no legal right to continue (Paras 13, 22). C) Property Law - Tenancy Creation - Acceptance of Rent in Requisitioned Premises - Bombay Land Requisition Act, 1948 - Payment and acceptance of rent after de-requisition by a former allottee or unauthorised occupant does not create a tenancy or confer any legal right to occupy, as no landlord-tenant relationship can arise from an act contrary to the statutory scheme where the state is in possession (Paras 5, 23-24). D) Constitutional Law - Supervisory Jurisdiction - Article 227 - Constitution of India, Article 227 - The High Court can exercise its power of superintendence to quash orders that are patently illegal and without jurisdiction, thereby rectifying errors of law committed by subordinate authorities (Paras 1, 28-29).
Issue of Consideration
Whether the orders dated 9 August 2010 (de-requisition) and 10 August 2010 (handing over possession to respondent no.1) passed by the competent authority are valid under the Bombay Land Requisition Act, 1948?
Final Decision
Writ petition allowed; impugned orders dated 9 August 2010 and 10 August 2010 quashed and set aside; respondent nos. 2 and 3 directed to hand over vacant and peaceful possession of the suit premises to the petitioner within four weeks; no order as to costs.
Law Points
- Upon de-requisition under Bombay Land Requisition Act
- 1948
- State must deliver possession to landlord
- has no power to hand over to third party
- original allottee's right extinguishes
- acceptance of rent does not create tenancy during de-requisition period
- no estoppel against statute
- orders without jurisdiction are void
