JUDGMENT R.M. Lodha, J.
1. By means of this writ petition, the petitioners pray that it be declared that the continued requisition of petitioners premises viz. Block No. 10, Room No. 3, 2nd floor, Vasant Niwas No. 2, Morvi Lane, Chowpatty Sea Face, Bombay is illegal and ultravires the provisions of the Bombay Rent Acquisition Act, 1948 and for direction to respondents to rescined the order of requisition in relation to the premises in question and delivery of possession of the said premises to the petitioners.
2. Briefly stated the petitioners case in the writ petition is that the premises afore-referred were requisitioned by respondents 1 and 2 in the year 1950 under the Bombay Land Requisition Act, 1948. The petitioners called upon respondents 1 and 2 to hand over quiet, peaceful and vacant possession of the requisitioned premises because the requisition of the premises in question could not continue beyond reasonable period. The petitioners amended the writ petition vide draft amendment dated 12-7-1996 whereby the legal heirs and representatives of late R. S. Gurav were impleaded as respondent No. 3 and it was stated in the writ petition that the said legal heirs and representatives of late Shri R. S. Gurav are presently in occupation of the requisitioned premises. Despite the notice dated 13-12-1994 when the respondents 1 and 2 did not de-requisition the said premises and failed to deliver the possession of the said premises to the petitioners, the present writ petition has been filed. The respondents 1 and 2 have not chosen to file any reply affidavit. The respondent No. 3 viz. the legal heirs of late Shri R. S. Gurav has filed an affidavit in reply wherein it is admitted that the premises in question are requisitioned premises. However, a case has been set up that in or about 1952 the then landlord late Shri Thakorlal M. Bhagat created tenancy in favour of late Shri R. S. Gurav and accordingly rent receipts were also issued in the name of late Shri R. S. Gurav. It is also stated that due to death of late Shri Thakorlal M. Bhagat in early 1960 and dispute inter se between his legal heirs, the formalities pf tenancy could not be completed and thereafter the rent has been deposited with respondent No. 1.
3. An affidavit in rejoinder has been filed by one of the petitioners denying the respondent No. 3's claim that they are lawful tenants of late Shri Thakorlal M. Bhagat in the premises or that any tenancy was created in favour of late Shri R. S. Gurav.
4. Though the respondents 1 and 2 did not file any affidavit in reply, during course of arguments Mr. Mecwan, learned A.G.P. placed before us the order dated 14-11-1949, whereby the said premises were allotted. We find therefrom that the premises in question were requisitioned under Government order No. R. 1426 L.2369 dated 3-11-1949 and by the Order dated 14-11-1949 the requisitioned premises were placed at the disposal of Hon'ble Mr. Justice Gajendragadkar P. B. for being used as a servant's (driver's) room on the terms and conditions mentioned in the said order. The order dated 14-11-1949 placed by the learned A.G.P. for our perusal is taken on record and marked "X" for identification purposes. The said order dated 14-11-1949 reads thus :
"No. R. 1426 L. 2369 Office of the Controller of Accommodation Near Law College, Churchgate Station, Bombay, 14th Nov. 1949.
ORDER Room No. C. on 2nd fl., in Block No. 10, Vasant Niwas, Chowpatty Sea Face, Bombay requisitioned under Government Order No. R. 1426 L. 2369 of 3rd Nov. 1949, is placed at the disposal of Hon. Mr. Justice Gajendragadkar P. B. for being used as a servant's (driver's) room on the terms and conditions mentioned below.
2. The allottee shall occupy the premises allotted to him within a period of seven days from the date of receipt by him of the order of allotment and shall send an intimation to the undersigned, failing which the allotment order will be considered to have been cancelled.
3. Failure to occupy the premises or refusal to accept the allotted premises would deprive the allottee of any claims for allotment for 6 months following the date of this allotment order.
4. The allottee shall pay Rs. 15/- as the rent per month in respect of the premises allotted to him with effect from date of requisition.
5. The allotment shall pay the rent in advance before the 10th of every month.
6. The allottee shall pay the Government within 7 days an amount equal to three months rent as deposit which shall remain with Government as long as the premises continue to be occupied by the allottee.
7. The allottee shall "pay the Municipal Taxes in addition to the rent mentioned above, whenever necessary.
8. This allotment is made subject to the condition that the allottee shall surrender to Government any premises held by him either as a tenant, sub-tenant or otherwise as soon as the allotted premises are occupied.
9. The terms and conditions mentioned above are subject to modifications and the allottee shall comply with such modified conditions.
By order of the Governor of Bombay.
sd/-
Assistant Controller of Accommodation.
(1) M/s Thakkorlal Mohanlal and Dalitaganri Thakorlal, 69, Dadiseth Agiari Lane, Bombay.
(2) Hon'ble Mr. Justice Gajendragadkar P. B. High Court, Bombay. 1."
5. It is thus apparent that the premises in question were requisitioned on 3-11-1949. The continuance of requisition beyond reasonable period cannot be permitted. In Grahak Sanstha Manch and Ors. v. State of Maharashtra, , the constitutional Bench of Apex Court ruled continuance of requisition for a period as long as 30 years or more, is unreasonable. In paragraph 17 of the report, the Apex Court held thus :
"17. For the aforesaid reasons, we hold that the decision in H. D. Vora case does not require reconsideration. We, however, do not approve the observations therein that requisition orders under the said Act cannot be made for a permanent purpose. We make it clear that the said decision does not lay down, as has been argued, a period of 30 years as the outer limit for which a requisition order may continue. The period of 30 years was mentioned in the decision only in the context of the date of the requisition order there concerned. An order of requisition can continue for a reasonable period of time and it was held, as we hold, that the continuance of an order of requisition for as long as 30 years was unreasonable."
6. In the light of the law laid down by the Apex Court, we have no hesitation in holding that the requisition of premises in question cannot be permitted to continue now which is more than 50 years. We therefore hold the continuance of requisition of premises illegal.
7. The question now arises whether the petitioners are entitled to delivery of possession of the premises in question, requisition of which has been held to be illegal by us in the light of the provisions of the Maharashtra Rent Control Act, 1999 (for short "Act of 1999") which has come into force with effect from 31-3-2000.
8. There cannot be any dispute on the face of the order dated 14-11-1949 that the premises in question were placed at the disposal of Hon'ble Mr. Justice P. B. Gajendragadkar for being used as a servant's (driver's) room and Mr. R. S. Gurav being driver attached with Hon'ble Mr. Justice P. B. Gajendragadkar was permitted to use the said room on the terms and conditions mentioned in the order dated 14-11-1949. The learned counsel for the parties have not been able to tell us the date of retirement of late Shri R. S. Gurav. However, there is no dispute that late Shri R. S. Gurav died on 27-12-1994. After the death of Mr. R. S. Gurav, the premises in question are in possession of his legal heirs. Section 7(2)(a) of the Act of 1999 defines "Government allottee" in relation to any premises requisitioned or continued under requisition for non-residential purpose, while Section 7(2)(b) defines "Government allottee" in relation to any premises requisitioned or continued under requisition which were allotted by the State Government for residential purpose. Section 7(2)(b) which is relevant for the present case reads thus :--
"7(2) "Government allottee".--
(a) .....
(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 of Bombay Government Premises (Eviction) (Amendment) Act, 1996, such person or his legal heir was in occupation or possession of such premises for his or such legal heirs own residence, means such person or legal heir:"
9. Section 27 of the Act of 1999 which confer right of deemed tenancy on the State Government or Government allottee of requisitioned premises or the premises continued under requisition 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 purpose 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 provision 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; (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."
10. We may observe that after the judgment of the Apex Court in Grahak Sanstha Manch, Maharashtra Act No. XVI of 1997 viz. Bombay Rents, Hotel and Lodging House Rates Control, Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996 was enacted whereby Clause 1A defining Government allottee was inserted in Section 5 and protection was sought to be given to the allottees of the requisitioned premises by providing for the State Government or Government allottee becoming deemed tenants of the requisitioned premises. Section 5(1A) which was introduced by defining Government allottee is identical to Section 7(2) of the Act of 1999. By the said Amendment Act No. XVI of 1997 Section 15(b) was also introduced. Section 15(b) of the Act of 1997 is identical to Section 27 of the Act of 1999. In Maheshchandm Trimamji Gajjar v. State of Maharashtra and ors. AIR 2000 SC 1183, the question before the Apex Court was whether the Government employee who retired from service on 30th September 1993 has any right to continue with the possession of premises despite the order of requisition having been set aside. The Supreme Court after noting the provisions of Maharashtra Act No. XVI of 1997 and the judgment of the Division Bench of this Court whereby the said provisions were declared ultra vires and the fact of pendency of appeal before the Apex Court against the judgment of this Court declaring the said provisions unconstitutional, observed that even if the said provisions were held valid and constitutional, the allottee who had retired from service in the year 1993 does not have any right to continue with the possession of the premises after the invalidity of the order of requisition and his retirement. In paragraphs 14 and 15 of the report, the Apex Court held thus ;-
"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 allottees. 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 benefit of all protections under Bombay Rents Hotel and Lodging House 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 possession but that would not confer on the occupant the status 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.
11. We are of the considered view that what has been held by the Apex Court in Maheshchandra T. Gajjar's case in the light of the Amendment Act No. XVI of 1997, particularly Sections 5(1)A and 15(a) assuming the said provisions to be constitutional that Government Employee who has retired from Government service on 30th September, 1993 has no right to continue with the possession of requisitioned premises after the order of requisition has been set aside and his retirement is clearly applicable to a case where the allottee had retired from Government service and died prior to the enactment of Maharashtra Amendment Act No. XVI of 1997 and his legal representatives cannot be said to have any right to continue with the possession of the premises after the continuance of requisition of the premises has been invalidated even in the light of Act No. XVI of 1997 or and the provisions of Section 7(2)(b) and Section 27 of the Act of 1999. As has been held by the Apex Court with reference to Amendment Act No. XVI of 1997 that it was not the intention of the Government to confer a special benefit providing residential accommodation to occupants of requisitioned accommodation as a superannuation benefit or benefit of providing accommodation to legal representatives of deceased retired employee. The only object which can be gathered from Section 7(2) and Section 27 of the Act of 1999 is to protect those who would have been rendered homeless though still in Government service on account of shortage of accommodation with the Government and it being not possible for the Government to give suitable accommodation to such, Government allottees. To us, on the basis of the ratio of the Apex Court in Maheshchandra T. Gajjar's case which is clearly attracted, it is clear that if the deceased R. S. Gurav in his lifetime after retirement could not acquire the benefit of deemed tenancy much less his legal representatives after the death of allottee could claim any benefit of deemed tenancy under the provisions of Maharashtra Act No. XVI of 1997 or Maharashtra Rent Control Act, 1999.
12. We are not persuaded by the case set up by the legal representatives of deceased R. S. Gurav that in or about the year 1952, the then landlord late Shri Thakorlal M. Bhagat created tenancy in favour of late Shri R. S. Gurav. During the course of arguments the learned counsel for the respondent No. 3 tendered certain receipts, marked "Y" for identification purposes. We find from the said receipts that three receipts are in the name of Shri R. S. Gurav, while six receipts are in the name of late Hon'ble Justice Shri P. B. Gajendragadkar. Moreover, it is admitted case of the legal representatives of deceased Shri R, S. Gurav that after the year 1960 rent/compensation has only been paid to respondent No. 1 by them. The fact of payment of compensation/rent to the State Government for the last about four decades clearly negatives the case set up by the legal representatives of deceased Shri R. S. Gurav that tenancy was created in favour of late Shri R. S. Gurav in the year 1952 by late Shri Thakorlal M. Bhagat.
13. Since we have invalidated the continuance of requisition of the premises in question, we find that the legal representatives of late Shri R. S. Gurav has no right to continue with possession for the reasons indicated above.
14. Accordingly, writ petition is allowed. The continuance of requisition of premises described in paragraph 2 of writ petition is declared illegal and respondents are directed to hand over quiet, vacant and peaceful possession of the said premises to the petitioners within two months from today.
15. No costs. Rule is made absolute in aforesaid terms.
16. Liberty to respondents 1 and 2 to place on record xerox copy of document marked "X" and then withdraw the original document.
17. Writ petition allowed.