ORDER
1. Rule issued on 17th June, 1997 is, by consent, made returnable forthwith.
Heard parties.
2. Facts giving rise to the present petition, are as follows:
Premises which are the subject matter of controversy in the present petition, are a 2 room tenement on ground floor of Yeshwant Bhavan, M.N. Patankar Marg, Kurla (West), Bombay-400 070. By an order passed by the Controller of Accommodation, Bombay, on 9th October, 1950, the said premises were requisitioned under the Bombay Land Requisition Act, 1948. The same were allotted and placed in possession of the petitioner. Respondent No. 1 is the landlord of the premises. Respondent No. 2 is the State of Maharashtra.
3. On 22nd December, 1994, an Ordinance was issued extending the provisions of the aforesaid Requisition Act for a further period of three years i.e. upto 22nd December, 1997.
4. On 11th March, 1996 an order of eviction under section 8-C of the said Act was passed by the Competent Authority against the petitioner. First respondent filed Writ Petition No. 1252 of 1996 claiming derequisition and possession of the premises. On 11th of July, 1996 the petition was allowed. On the same day petitioner gave an undertaking to vacate by 30th of April, 1997. On 7th of December, 1996 Ordinance No. XXIII of 1996 was issued by respondent No. 2 which sought to confer tenancy rights on certain allottees in respect of requisitioned premises. On 17th of January, 1997 the said Ordinance was made into an Act being Maharashtra Act No. XVI of 1997. Based on the Act, petitioner took out Notice of Motion No. 131 of 1997 in the aforesaid Writ petition No. 1252 of 1996 and prayed for being relieved of the under- taking. By an order passed on the 30th of April, 1997 Notice of Motion was dismissed and time to vacate was extended upto 15th of May, 1997 with a clarification that no further extension for vacating the premises will be granted. Petitioner has, thereafter, filed the present petition on the 7th of May, 1997, On 9th of May, 1997 petitioner moved the Vacation Judge for interim reliefs. By an order passed on the 9th of May, 1997 Vacation Judge declined to pass an interim order. Petitioner carried the matter to the Supreme Court. The special leave petition was rejected on 19th of May, 1997. On 20th of May, 1997, the State Government passed an order derequisitioning the premises and handed over possession to the first respondent. On 1st of June, 1997, first respondent, it is claimed, has created a tenancy in favour of one Vikas Naik.
5. The short question, which arises for our consideration is, whether the petitioner is entitled to protection of the aforesaid Act being Maharashtra Act No. XVI of
1997. By the Act, provisions of Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 are amended. By Clause (1-A) of section 5 of the Amended Rent
Act the term “Government allottee” is defined as under:
“5. Definitions:—In this Act unless there is anything repugnant to the subject
or context,
(1-A) … …. ….
(a) … … …
(b) in relation to any premises requisitioned or continued under requisition which are allotted by the State Government for residential purpose to any person and on 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 (Man. XVI of 1997) such person or his legal heir is allowed by the State Government to remain in occupation or possession of such premises for his or such legal heir’s own residence, means such person or legal heir;”.
6. By section 15-B of the aforesaid Amended Act protection is conferred on State Government and Government allottee by conferring status of a tenant upon them. Section 15-B in so far as is relevant, provides:
“15-B State Government or Government allottee to become tenant of premises requisitioned or continued under requisition … (1) On 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, (Mah. XVI of 1997) (hereinafter in this section referred to as “the said date”), …
(a) … … … ….
(b) the Government allottee, in respect of the premises requisitioned continued under requisition and allotted to him as referred to in sub-clause (B) of Clause (1-A) of section 5, shall notwithstanding anything contained in this Act, or in the Bombay Land Requisition Act, 1948 (Bom. XXXfll of 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, 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”.
The protection, as is clear from the above provisions, is sought to be extended to a
Government allottee.
7. The provisions makes it further clear that before a person can be qualified to
Government allottee, he should be one who has been allotted, by the State Government, residential premises which have been requisitioned and has been allowed by the
State Government to remain in occupation or possession on the date of the coming
into force of the Act. As far as the petitioner is concerned, an order of eviction had
been passed against him under section 8-C of the Bombay Requisition Act on the 11th
of March, 1996, which is prior to the coming into force of the Act. Petitioner, in addition,
has given an undertaking to this Court in Writ Petition No. 1252 of 1996, on 11th of
July, 1996, agreeing to vacate by the 30th of April, 1997 which undertaking is also
given prior to coming into force of the Act. The Act has been passed on the 7th of
December, 1996, which gives protection to those who have continued in possession
under permission of the Government on the 7th of December, 1996. Petitioner, in the
circumstances, cannot claim to be a Government allottee who has been conferred with
the protection under the aforesaid Act.
8. A similar question had come for consideration before this Court in a case of Ravi Ramkrishna Subramanyam v. Sfafe of Maharashtra and others, in Writ Petition No. 98 of 1997 and other companion matters. By a judgment and order passed by this Court {Coram: Mr. M.B. Shah, C.J. and Mr. F.I. Rebello, J.) on 22nd & 30th January, 1997, it has inter-alia been observed, as under :
“If the State Government has passed eviction order, then he would not get the benefit of the amending Act because in such cases, it cannot be said that the State Government has allowed such person to remain in lawful occupation or possession. May be that by the. intervention of the Court, some time might have been granted to such allottee for vacating the premises. But it would mean that the State Government has not allowed such persons to remain in lawful occupation or possession. Further, if
any judgment, decree or order is passed by the Court after 11th June, 1996, then a/so notwithstanding such judgment, decree or order, the person would get the benefit of the amending Act if he satisfied the other conditions provided in the Act”.
“32. In this view of the matter, in our view, respondent No. 2 is not entitled to get any benefit under the provisions of the Amending Act. He has given specific undertaking to vacate the premises on or before 7th December, 1996. Now he cannot be permitted to go out of the said assurance by stating that the Legislature has conferred on him a right by providing that if the person is in occupation of the premises on 7th December, 1996 i.e. the date of coming into operation of the Act, then he is entitled to be a deemed tenant. But for the assurance and undertaking given by respondent No. 2, he would have been evicted by the Competent Authority prior to 7th December, 1996. Not only this, but for the first time the petitioner was given time by the Court to vacate the premises on or before 21st November, 1996. Further, as stated above, the competent authority had already passed eviction order on 12th April, 1996. Hence, the petitioner is not entitled to get any benefit under the provisions of the amended Act”.
9. In the case of Kunal R. Chaudhari v. Purshottam B. Todi and another, in Interlocutory Application No. 3 in Special Leave Petition No. 16184 of 1996 reported in 1997(4) Bom.C.R. 627 the Supreme Court has observed, as under:
“The definition of “Government allottee” in Clause (1-A) in section 5 of the Bombay Rent Act, as already pointed out, comprises, two clauses, viz, (a) and (b) and that the applicant claims to fall under Clause (b) (Admittedly, he does not fall under Clause (a)). But for falling under Clause (b), he should satisfy the following two requirements:
(1) The requisitioned premises are allotted by the State Government to him for residential purpose and (2) on the date of coming into force of the said Ordinance, the applicant “is allowed by the State Government to remain in occupation or possession of such premises for his … residence”. The definition of “Government allottee” in the explanation appended to sub-section (8) of section 9 of the Bombay Land Requisition Act is in the same terms. The Ordinance was issued on and commenced on December 7, 1996. The question is whether it can be said that on 7th December, 1996 the applicant is a person who “is allowed by the State Government to remain in occupation or possession of the said premises for his residence”? We think not, Pursuant to the judgment of the High Court dated 3rd July, 1996 allowing Writ Petition No. 1881 of 1980, it is pointed out by Shri S. Ganesh, learned Counsel for the first respondent, the Government of Maharashtra has passed two orders. Under the order dated 24th July, 1996, the applicant was called upon to vacate the premises and hand over the same to the Government so as to enable it to derequisition the said premises and deliver possession of the same to the landlord as directed by the High Court. Subsequently, on 17th August, 1996 the Government of Maharashtra made an order under section 11(1) of the Bombay Land Requisition Act authorizing the Area Sub-Inspector in the office of the Controller of Accommodation to take vacant possession of the said premises from the applicant on or before 30th August, 1996. The Area Sub-Inspector was empowered to use such
force as may be reasonably necessary for the said purpose. The said order could not, however, be implemented or executed for the reason that this Court by its order dated 26th August, 1996 permitted the applicant to remain in occupation of the premises till 26th February, 1997. It is obvious that but for the said order of this Court, the Area Sub-Inspector would have evicted the applicant from the said premises. In any event, the authority of the applicant to occupy the premises by virtue of the allotment order made by the State Government came to an end on 30th August, 1996, if not earlier. It cannot be sard that the possession or occupation of the applicant after 30th August, 1996 was one allowed by the State Government. It was wholly and exclusively attributable to the order of this Court dated 26th August, 1996. To repeat, as on 7th December, 1996 (the date of Ordinance) the applicant was not a person who “is allowed by the State Government to remain in occupation or possession of such premises for his residence” which means that he does not fall within the definition of “Government allottee” contained in Clause (1-A) in section 5 of the Bombay Rent Act. He cannot, therefore, take advantage of section 15-B of the said Act. For the same reason, he cannot also seek to take benefit of sub-section (8) of section 9 of the Bombay Land Requisition Act, 1948. For the above reasons, the contention that the applicant has become a statutory tenant under the first respondent by virtue of the aforesaid ordinance (subsequently enacted into an Act) is unsustainable in law and is rejected herewith…..”
10. If the ratio of the aforesaid decisions is applied to the facts of the present case, it would be clear that the petitioner does not qualify to be a “Government allottee” under section 5(1-A)(b) as he has not continued to remain in occupation and possession under a permission granted by the Government upto 7th of December, 1996. An order of eviction had already been passed against him much prior thereto. He has even given an undertaking to vacate. Hence, on the date of the Act which has come into force on the 7th of December, 1996 he has continued in occupation not under a permission granted by the State Government but by virtue of time being granted by the Court and that too on his giving an undertaking to vacate. In the circumstances, petitioner cannot get any protection under the aforesaid Act.
Rule, in the circumstances, is discharged. There will, however, be no orders as to costs.
11. Petition dismissed.