Mazgaon Co-Operative Stores Ltd vs Appellate Authority And ...
2016 Latest Caselaw 6290 Bom

Sherla V.



                                                                            wp.12172.2016_68.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                         
                                    WRIT PETITION NO.12172 OF 2016

            Mazgaon Co-operative Stores Ltd.                     ... Petitioner




                                                                 
                  Vs.

            Apepllate Authority & Additional Chief Secretary




                                                                
            GAD, Mantralaya, Government of Maharashtra
            Mumbai & Ors.                                    ... Respondents


            Mr.P.M. Gaonkar for the Petitioner




                                                    
            Mr.S.H. Kankal, AGP, for for Respondent-State
            Mr.Imtiaz A. Naik, Chairman of Petitioner - present
                                           ig     CORAM: Mrs.MRIDULA BHATKAR, J.

DATE: OCTOBER 24, 2016

ORAL JUDGMENT:

1. Rule. By consent of the parties, Rule made returnable forthwith and

the petition is heard finally at the stage of admission itself.

2. In this petition, the order dated 9.9.2016 passed by the Appellate

Authority and the Additional Chief Secretary, General Administration

Department, Mantralaya in Appeal No.1 of 2016 and the order dated

3.3.2016 passed by the Controller of Accommodation, GAD, are

challenged. The petitioner society is occupying a requisitioned premises

of shop as a government allottee in Khan building, Mazgaon, since 1948,

under the provisions of the Bombay Land Requisition Act, 1948. In the

year 1991, on 4.6.1991, the Controller of Accommodation gave notice to

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the petitioner/society about the requisitioned premises informing that by its

very nature, it is a temporary duration and the government cannot

continue to hold the property for an indefinite period of time under the

guise of requisition and demanded to hand over the vacant possession of

the premises to the government. However, in the same notice, it was

communicated that if the government allottees can produce No Objection

Certificate or consent letter from their respective landlords for accepting

them as a direct tenant, then, their tenancy can be regularised. The

authority has informed the petitioner that the society may also explore the

possibility of negotiating with the landlords for direct tenancy. However, it

is informed that the premises is released from the requisition by

26.12.1992. The government did not act upon the said notice by evicting

the petitioner but the petitioner started giving rent directly to its landlord

instead of paying compensation to the government since 1993.

3. Both the Bombay Land Requisition Act and the Bombay Rent Act

were amended pursuant to the policy of the government to regularise the

tenancy of the government allottee, who are occupying the requisitioned

premises. These amendments were subject matter of challenge before

the Bombay High Court wherein the amendments were held as illegal and

void. However, the Supreme court set aside the said order upholding

amendment legal in 2003. Thereafter, the notices under section 8C of the

Bombay Requisition Act was sent by the Government to show cause as to

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why the petitioner should not be evicted. Pursuant to that, the petitioner

filed his written statement before the accommodation officer and it was

decided against the petitioner. Subsequently, it was challenged before the

appellate authority and the additional Chief Secretary, GAD, Mantralaya

directed the appellant i.e., the petitioner to hand over vacant and peaceful

possession of the premises to the State Government within 30 days of the

order.

4. The learned Counsel for the petitioner has submitted that the

Accommodation Officer in the letter dated 6.11.1999 while asking to file

affidavit before the Supreme Court in SLP has addressed the petitioner as

'Government allottee'. He further submitted that there is an inordinate

delay to take steps pursuant to the notice of 1991 by the Government and,

therefore, that notice is to be considered as cancelled. The learned

Counsel argued that the petitioner has been occupying the said premises

on or about from 1954-1955 and in 1993, society stopped giving rent to

the government as per the policy of the government which was mentioned

in the notice dated 4.6.1991. The learned Counsel submitted that

petitioner had negotiated the terms with the landlord and the landlord has

accepted the same and therefore the society started paying rent directly to

the landlord and thus, at present, he is a tenant of the landlord and there is

no contract between him and the government. He has rightfully occupied

the said premises and the order of eviction is hence, illegal and against

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the policy of the government. The learned Counsel submitted that the

judgment of H.D. Vora vs. State of Maharashtra in C.A. No.1212 of 1984

which is relied by the appellate authority is not applicable to the present

case because the petitioner has acted according to the policy of the State

of Maharashtra. He submitted that the said order is to be set aside and

quashed.

5. The learned AGP, per contra, has supported the order passed by the

Government. He relied on the judgment of H.D. Vora (supra), and also

heavily relied on the judgment of the learned Single Judge of this Court

passed on 12.4.2016 in S.A. Sule vs. The Controller of

Accommodation & Ors. (Writ Petition No.2124 of 2015). He submitted

that identical issue had come up before this Court in the S.A. Sule's case

wherein this Court has taken a view consistent to the ratio laid down in

Vora's case (supra) that the Government Allottee may claim that he is

paying rent to the landlord and landlord may be issuing rent receipts in his

favour, however, neither he be treated as a tenant nor the payment as a

rent. The rent is to be considered as compensation paid by him towards

requisitioned premises. He further submitted that as per the policy

adopted by the State of Maharashtra as mentioned in 1991 notice, it was

incumbent on the part of the petitioner to produce either a consent letter or

NOC of the landlord accepting him as a tenant. However, nothing is

produced by the petitioner today in the Court or at the time of hearing

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before the Accommodation Officer or before the State of Maharashtra. It

is admitted that on 4.6.1991, the termination notice was issued by

respondent-State against the requisitioned premises occupied by the

petitioner and the government did not evict the society however, he

argued the allotment was terminated accordingly. The petitioner is

occupying the said premises from 1993 onwards and though stopped

paying rent or compensation to the government but started paying it

directly to the landlord, this cannot change petitioner's status from

Government Allottee to the tenant, in view of the ratio laid down in H.D.

Vora (supra) and S.A. Sule (supra).

6. Simultaneous amendments in the Requisition Act and Bombay Rent

Act were introduced and added. Thus, from 7.12.1996, as per section 9(8)

of the Requisition Act, the government allottees can be protected and can

get themselves converted into tenant by following procedure laid down

and the compliance under the policy. A protection was sought in Sule's

case and in the said case, a notice was given to the government allottee

in the year 1994 and this Court has taken a view that once the notice is

given, then, the allottee becomes the person who was not allowed by the

State Government to possess to remain in occupation of the premises. If

notice would have been given after 1996, then, allottee falls in the

category of a person, who was allowed to continue after the amendment

and, therefore, he can avail of benefit under the policy. In the

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case in hand (like in Sule's case), the notice was given prior to 1996 i.e.,

4.6.1991 and therefore, the petitioner society is to be treated as a person

not allowed to occupy the said premises. Once that notice is issued by the

Government then a status of the government allottee is clear that he is a

person not allowed to occupy the premises, then, that government allotee

is not entitled to take benefit of the amendment of the 1996 policy though

he may continue in possession till today.

7. On query of delay in taking action, the learned AGP informed the

Court that though the notice was given in the year 1991, some time was

given as per the order to the petitioner society and after the amendment,

there was change in law by amendment on 7.12.1996. The said

amendment was challenged before this Court which struck down the

amendment. However, the said order was challenged in appeal before the

Supreme Court and the Supreme Court restored the amendment and

declared the amendment as valid. This judgment of the Supreme Court is

not produced before me, however, I can accept the submissions made by

the learned AGP as it is not controverted by the petitioner by placing any

other order of the Supreme Court.

8. It appears that after the decision of the Supreme Court in 2003,

upholding the amendment, again, a show-cause notice under section 8C

was given in the year 2015. There is delay in taking action. However, that

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cannot go in favour of the society, who enjoyed the occupation of the

requisitioned premises till today. Such delay in taking action by

government many times occurs due to omission or dishonest approach of

the persons working on the system.

9. Though notice was given and eviction did not take place, benefit of

the policy could have been still given to the petitioners. However, the

requirement of taking benefit of the policy as mentioned in the notice dated

4.6.1991 was to produce NOC or the consent letter of the landlord, is not

complied with by the petitioner society. Had the petitioner produced a

consent letter or NOC of the landlord before the competent authority or

government or before this Court and the benefit could have been given to

the petitioner - society of the said policy which was specifically stated in

its original notice of 1991. Some steps were taken by the government and

there was a change in law so also the matter was subjudice and therefore,

it cannot be said that the impugned notice is time barred. Under such

circumstances, though the landlord has issued rent receipts in favour of

the petitioner and the petitioner might have been addressed by the

Accommodation Officer in letter dated 6.11.1999 as government allottee, it

cannot continue his status throughout as government allottee. He has

produced some rent receipts before the Accommodation Officer and he

may be paying the rent, however, irrespective of the nomenclature,as per

the ratio laid down in Vora's case (supra) and S.A. Sule's case (supra) the

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amount which is paid by him is in law a compensation and cannot be

treated as a rent.

10. In view of this, there is no merit in the petition and I do not find any

illegality in the order passed by the State Government and hence, the

petition is dismissed.

11. At this stage, the learned Counsel for the petitioner on instructions

from the Chairman of the petitioner society, who is present in the Court,

submits that the petitioner is a society running a rationing shop and due to

Diwali season, its stocks are full and it will take some time to clear the

stock. He prayed for 12 weeks time. In view of this submission, time

granted upto 31.1.2017 by which time the petitioner society shall hand

over vacant and peaceful possession of the premises.

(MRIDULA BHATKAR, J.)