ORDER
1. The petitioner who are the trustees of a a trust owning a building known as 'Fazalbhoy House' at New Marine Lines Bombay are challenging the continued requisition of four flats in the said building, being flats G and H on the 2nd floor and E and H on the 3rd floor.
2. Originally, under the Defence of India Act read with Defence of India Rules, Particularly R. 75A, 8 flats were requisitioned on 25-6-1942. They were flats E.F. G and H on the 2nd and the 3rd floors of the said building. The requisition was for housing police personnel. Subsequently flats F and G on the 3rd floor were released in favour of the allottee on the petitioners' consenting to take them as direct tenants, one in or about Feb., 1973 and other in Sept, 1973. In Nov., 1973, the petitioners filed a writ petition being Misc. Petition 1090 of 1973 in respect of the remaining six flats. In or about the end of 1974 or beginning of 1975 a settlement was arrived at between the parties as a result of which flats E and F on the 2nd floor were released by the state of Maharashtra from requisition. In view of the settlement on 22-1- 1975 the petition was withdrawn.
3. Mr. Rana for the petitioners began his arguments by challenging the continued requisition of each of the flats relying on the facts peculiar to them, contending that in view of the facts the public purpose came to an end at one time or the other and continued requisition at the date of this petition was invalid. This contention of Mr.Rana applied really only to three flats, namely. 2/H, 2/G, and 3/H and Mr.Rana fairly stated that as regards flat 3/E he was not in a position to challenge the continued requisition on facts. However, by way of an amendment which was granted by an order of 5th December, 1980 he challenged the continued requisition of all the flats on the ground that looking to the legislative provisions the requisition had automatically come to an end sometime in the year 1952 and that thereafter continued exercise of contoller by the Govt. Over all the four flats was illegal and also amounted to violation of the fundamental rights of the petitioners conferred under Arts. 19(1)(f)(g) and 31 of the constn. As this subsequent point is capable of disposing of the entire petition, I am dealing first. However, since the petition is argued fully, I propose to deal with all the contentions advanced by Mr. Rana as well as the contentions advanced by Mr.Kanuga in reply to the contentions of Mr. Rana.
4. To appreciate Mr. Rana's contention regarding the cessation of the requisition by statutory non-extension thereof, it is necessary to set out fully the relevant provisions of the legislation existing from time to time. Rule 75 A of the Defense of india Rules was as follows :
'Rules 75 -A (1) If in the opinion of the central Government or the provincial Government it is necessary or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government , may by order in writing requisition any property, movable or immovable and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitoning.
(2) where the central Government or the provincial government has requisitioned any property under sub-rule (1) that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily reachable or the ownership is in dispute, by publishing in the official Gazette, a notice stating that the Central or provincial Government, as the case may be, has decided to acquire it in pursuance of this rule'
The premises requisitioned under the Defence of India Rules were continued to be the subject to requisition by Government of India Ordinance 19 of 1946. The relevant provisions thereof were as follows :
'2 Definition :- In this Ordinance, unless there is anything repugnant in the subject or context,
(1) 'appropriate Government' means, in relation to any requisitioned land, the central or provincial Government by which or under the authority of which the land has been requisitioned.
(2) 'Provincial Government' means in relation to a chief commissioner's province, the chief commissioner.
(3) 'requisitioned land' means immovable property which, when the Defence of India Act, 1939 (XXXV of 1939) expires, is subject to any requisition effected under the rules made under that Act.
'3. Continuance of requisitions :- Notwithstanding the expiration of the Defence of india Act, 1939 (XXXV of 1939) and the rules made therreunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient.
Provided that the appropriate Government may at any time release from requisition any requisitioned land'. This was followed by the Requisitioned Land (Continuance of Powers ) Act XVII of 1947. The relevant provisions are Ss. 2 and 3 which are in same terms as in the Ordinance. Then comes Bombay Ordinance, V of 1947,which gives power to the state Government (then provincial Government) to requisition premises and provides for continuance of the requisition notwithstanding anything contained in the Requisitioned Land (continuance or Powers) Act, 1947, This provision of Bombay Ordinance (V of 1947) reads as follows :-
'5. Continuance of requisition - (1) Notwithstanding anything contained in the Requisitioned Land (Continuance of powers) Act, 1947 (XVII of 1947), the provincial Government may, by order in writing, direct that land which was continued under requisition under the said Act, shall continue to be subject to requisition under the Ordinance when it is released from requisition under the said Act or ceases tobe subject to requisition for any reason ; and the provincial Government may use or deal with the land so continued to be subject to requisition in such manner as may appear to it to be expedient.
(2) In respect of the continued subjection of the land to requisition under sub-sec. (1) compensation shall be determined and paid in accordance with the provisions of this Ordinance and of the rule made thereunder;
Provided that all agreements and awards made in relation to the land in respect of the payment of compensation for the period before it was continued to be subject to requisition under sub-sec (1) shall continue to be in force and shall apply to the payment of compensation for the period of requisition under this Ordinance. '
It is to be noticed that this Act was passed after the Bombay Ordinance of 1946 and while it was continuing and was to come to and end about couple of years thereafter but was continued by Act, 9 of 1951 till it was repealed in 1952 by an Act which I will refer presently Next comes the Bombay Land Requisition Act, 1948. The relevant provisions of section 20 of the said Act are as follows :-
'20 (1) The Bombay Land Requisition Ordinance, 1947, is hereby repealed, and it is hereby declared that the provisions of sections 7 and 25 Bombay General clause Act, 1904, shall apply to be the repeal as if that Ordinance were an enactment.
(2) Notwithstanding the repeal of the said Ordinance and anything contained in this Act :-
(I) any intimation given under sub-section 5 of that Ordinance within a period of seven days prior to the commencement of this Act shall be deemed to have under the corresponding provision of this Act.
(Ii) any land requisitioned or continued to be subject to requisition under the said Ordinance shall be deemed to be requisitioned or continued to be subject to requisition under this Act'.
Reference to sub-section (1) of Sec. (5) appears to be a mistake for sub-s (1) of S,3.
5. Then came the constitution of India under which there was bifurcation of powers to legislate for requisitioning of property. Under List I the parliament had exclusive power to legislate on the subjects mentioned in the list and the state legislatures could not impinge on this this power. Correspondingly List II contained the subjects reserved exclusively to the state legislatures. In this list I under entry 33 the parliament had exclusive power to legislate in respect of requisition of property for the purpose of Union subject to entry 42 of list III i,e, concurrent list. Similarly under entry 2 in list II the state Legislature had exclusive power to legislate in respect of requisitioning of property for the purpose of the state. Entiry 42 in list III contained the provisions only regarding principles on which compensation for property requisitioned is to be determined. By an amendment of the constitution entries 33 in list I and 36 in list II were deleted and put in the concurrent list by substitution of the original entry 42. However, we are not concerned with this amendment.
6. After the constitution came into force , the Central Government promulgated the Requisitioning and Acquisition of immovable property Ordinance, 1952 which was replaced by the Act with the same name being Act 30 of 1952. The preamble of the said act reads: ' An act to provide for the requisitioning and Acquisition of immovable property for the purposes of the Union'. The relevant provisions of the said Act are as follows :-
'3. (1) Where the competent authority is of the opinion that any property is needed or likely to be needed for any Public purpose, being a purpose of the union , and that the property should be requisitioned , the competent authority
xx xx xx xx xx
' 24. (1) The requisitioned land ( Continuance of powers)Act 1947 the Delhi premises ( Requisition and Eviction)Act, 1947 , and the Requisitioning and acquisition of immovable property Ordinance , 1952 are hereby repealed .
(2) For the removal of doubts , it is hereby declared that any property which immediately before such repeal was subject to requisition under the provision of either of the said Acts or the said Ordinance shall , on the commencement of this Act, be deemed to be property requisition under s.3 of this Act , and all the provisions of this Act shall apply accordingly :
Provided that -
(a) all agreements and awards for the payment of compensation in respect of any such property for any period of requisition before the commencement of this Act and in force immediately before such commencement, shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition after such commencement;
(b) anything done or any action taken ( including any orders, notifications or rules made or issued) in exercise of the powers conferred by or under either of the said Act or the said Ordinance shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act was is force on the day on which such thing was done or action was taken'.
7. Analysing the legislative provisions the following position emerges Under the Defence of India Rules the Central Government as well Provincial Government had power to requisition property . The flats in question were requisitioned by the Commissioner of Police pursuant to the powers vested in him by a notification of the Home Department ( Political )- War , No. S.D./ N-142 dt, 29th May 1942. The notification clearly says that the powers are conferred on the Commissioner by the Government of Bombay in exercise of its powers under R. 75 A, Defence of India Rules, read with Sec. 2(5) , Defence of India Act, 1939. But for the Ordinance 19 of 1946 followed by Act XVII of 1947 the requisitioning of these 8 flats would have come to an end on the lapsing of Defence of India Act, 1939 on 13-9-1946. The effect of the ordinance 19 of 1946 read with Act XVII of 1947 is that all the requisitioned premises continued to be subject to requisition and the appropriate Government could use or deal with any requisitioned flat in such manner as may appear to it to be expedient . Therefore , when the requisitioning was for the purpose of the Central Government , Central Government and when the requisition was for the purpose of provincial Government , Provincial Government was entitled to deal with the requisitioned flats and the government concerned alone had power to derequisition the same. The scheme of the Act shows that it was the appropriate Government which had to make the requisite enquiry before release of the premises from requisition and it is the appropriate Government which had the power to acquire the requisitioned property. The Bombay ordinance V of 1947 is clearly intended to cloth the Provincial Government with the power of making fresh requisition, which power had come to an end on the defence of India rules lapsing . This is also apparent from the statement annexed to the ordinance . In the interregnum between the lapsing of the Defence of India rules and the promulgation of this ordinance the provincial government did not have any power to requisition any premises. However, as regards the premises which continued under requisition by virtue of the central ordinance of 1946 and the central Act XVII of 1947 the provisions of CL. V of the Bombay ordinance V of 1947 set out above require that when any flat was released from requisition under Act XVII of 1947 or ceased to be subject to requisition for any reason , the provincial Government may be an order in writing direct that any premises which continue to be requisitioned under the said provisions ( i.e. Act XVII of 1947 ) shall continue to be subject to requisition under the said Bombay ordinance. Mr. Kanuga for the respondents is unable to produce any such order. Moreover , if any such order was passed regarding any flat in particular it is required to be served individually on the person affected in the manner prescribed by the code of civil procedure for the service of summons. Mr. Rana states that no such written order has been served on the trustees of the trust. It is therefore clear that no such written order has been made. The result is that so far as the formal Bombay State is concerned there is no continuance of the requisition made under the Defence of India Rules .
8. Mr.Rana contends that even under the central legislation there is no such continuance after 1952,Mr.Kanuga contends to the contrary. Both parties rely for this purpose on the requisitioning and Acquisition of Immovable property Act,1952 the relevant provisions thereof have been already extracted earlier.Sec 24 (1) repeals the Requisitioned Land (Continuance of Powers ) Act, 1957 and the Requisitioning and Acquisition of Immovable Property Ordinance,1952.Sub -section(2) of sec 24 declares that any property which immediately before such repeal was subject to requisition under the provisions of either of the said Acts or the said Ordinance shall,on the commencement of this Act,be deemed to be property requisitioned under Sec 3 of the Act of 1952. Therefore, ordinarily if the amplitude of this Sub-section was not to be restricted because of other provisions of the said Act or for some other reason,the properties requisitioned whether for the central purpose or the provincial purpose (by then State Purpose ) continued to be subject to the requisition under the said act of 1952. The question, However, is whether the scope of Sub-sec (2) of section 24 is so wide.For this purpose the Act not only must be read as a whole but also in consonance with the powers of the Union. This Act empowers the requisitioning of the property only for a public purpose which is a purpose of the union and then proceeds to give powers to the central government to release the property from requisition.The preamble clearly shows that the intention is to confine the operation of the Act only to the requisition of the property for the purpose of the union.Sub-section (2) of S.24 must ,therefore,necessarily be read so as to confine the continuance of requisition only to the purpose of the union..This interpretation is further fortified by the proviso (b) to section 24 (2) which says , interalia , to the effect any orders notifications or rules made or issued in exercise of the powers conferred by Requisitioned Land ( Continuance of Powers) Act, 1947 and the Requisitioning and Acquisition of Immovable Property Ordinance , 1952 shall in so far as it is not inconsistent with the provisions of this act of 1952 be deemed to have ben done or taken in the exercise of the powers, conferred by or under this Act as if this Act was enforced on the day on which such thing was done or action was taken . This also clearly indicates that the provisions of the earlier legislation are to continue and any action thereunder would continue in so far as they are not inconsistent with the provisions of 1952 Act . In my view the test determining whether there was inconsistency or not is to ascertain whether the property requisitioned could have been requisitioned under the Act, 1952. If the answer is no , such requisitioning would be inconsistent with the provisions of the Act of 1952, and cannot be deemed to have been continued under s. 24 . Even under S, 24, General Clauses Act, anything done under the repealed provisions of the legislation will continue only in so far as it not inconsistent with the new legislation. Since the said Act of 1952 authorises requisitioning only for the purpose of the Union , the requisitioning of the flats in question which was for the State purpose , could not have been done under the said Act. 1952. Therefore all properties requisitioned for the purpose of the State came to an end on the repeal of the Requisitioned Land . ( Continuance of Powers) Act, 1947 which repeal became effective in March 1952 .
9. Another ground on which the operation of Section 254 of the Act 1952 , must be restricted is that if an interpretation was given to it so as to extend the continuance of requisition even when it was for the State purpose it would clearly be in violation of the power as circumscribed by the aforesaid entries in lists I and II as then existing and this court may have to go to the extent of holding such continuance void and beyond legislative competence of the Union Legislature i.e., Parliament. It is well settled principle that the provisions of an enactment should not be so construed as to render them void and as far as possible such interpretation should be given as to make all the legislative enactment valid and if necessary language may be strained to give validity to a statute. I do not have to go to the length of straining the language because as I have already pointed out , on its true interpretation S.24 does not extend to the requisitioning done for the purpose ofg the state . However if necessary it is not difficult, to confine the operation of S.24 to the area circumscribed by relevant entry in list 'I' without putting any strain on the language.
10. This being the position the entire exercise of power regarding the allotment of these flats by the State Government after March , 1952 is completely illegal and without power. All the four flats in question as also the flats which were earlier released before the filing of the earlier petition or even thereafter pursuant to the settlement of the petition where held by the State Government illegally .
11. Apart from contending that the position has set out above is not the correct interpretation of he relevant legislative provisions, Mr. Kanuga for the respondents has sought to destroy this contention of Mr. Rana by contending that having filed the earlier petition and withdrawn the same without having a decision on the contentions which are discussed above , the petitioners are now not entitled to urge this contention on the principles analogues to res judicata estoppel . I may at the outset point out that the principles of res judicata cannot strictly apply to writ petitions by virtue of any enactment but are to be applied by the court on the ground of public policy meaning thereby courts policy . This policy is to see that a litigation is put to an end once and for all and a party should be permitted to create chaos by repeatedly coming to Court for reliefs in respect of the same subject matter by taking one ground at a time. However , the principles of res judicata or the principles analogous thereto can apply only when the earlier litigation is finally disposed of on merits. In the present case the earlier petition was not disposed of on merits but was only withdrawn by the petitioners and there is no scope for application of principles analogous to those of res judicata. As regards the contention of estoppel, Mr. Rana's reply is two fold. He firstly contends that the principle of estoppel is similar to the principle of waiver and that accordingly there cannot be any estoppel against the exercise of fundamental rights as it is well established that there cannot be waiver of fundamental rights. According to Mr. Rana the continued occupation of the flats by and on behalf of the State government is violative of the fundamental rights guaranteed under the Constitution of India. He secondly contends that there cannot be estoppel against Law. In my view both these contentions have substance and effectively answer the contention of Mr. Kanuga.
12. In support of his contention that there cannot be waiver of fundamental rights Mr. Rana relied on Basheshar nath v. I-T Commr., : [1959]35ITR190(SC) . There is no need to go in the facts of this case but it will be sufficient to reproduce some portions of some of the judgements. S.R.Das , C.J. , for himself and Kapur , J., preferred to confine the non-application of the rule of waiver only to Art. 14 . I need not, therefore, refer to the judgement for the purpose of this petition . N.H. Bhagwati J. In his separate but concurring judgement has observed as follows ( page 161): -- ' It is absolutely clear on a perusal of Article 13(2) of the Constitution that it is a constitutional mandate to the State of the solemn obligation imposed on it by article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy'.
S.K.Das J., has observed at page 172 as follows:
' The generally accepted connotation is that to constitute 'waiver' there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right , estoppel is a rule of evidence. ( See. Dawson's Bank Limited v. Nippon Menkwa Kabushiki Kaisha . What is the known legal right which the assesse intentionally relinquished or agreed to release in 1953-54 He did not know then that any part of the Act was invalid , and I doubt if in the circumstances of this case , a plea of 'waiver' can be founded on the maxim of 'ignorance of law is no excuse'. I do not think that the maxim 'ignorance of law is no excuse' can be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a legislature of competent jurisdiction must be held to be invalid, in case it prescribes a differential treatment , and he must , therefore , refuse to submit to it or incur the peril of the bar of waiver being raised against him. I do not think that such prescience is a necessary corollary of the maxim. On the contrary , the presumption , if any, which operated at the relevant time was the presumption that a law passed by the competent legislature is valid, unless declared unconstitutional by a court of competent jurisdiction. Furthermore, I do not think that any inference of the instalments paid in 1956-57 , particularly when the question of refund of the amounts already paid is no longer a live issue before us . It would , I think , be going too far to hold that every unsuspecting submission to law , subsequently declared to be invalid, must give rise to a plea of waiver : this would make constitutional depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent .' K. Subba Roa J., held at page 181 as follows :- '.......... I would, therefore , hold that the fundamental rights incorporated in part III of the constitution cannot be waived.
(83) it is said that such an inflexible rule would , in certain cases, defeat the very object for which the fundamental rights are created . I have carefully scrutinized the Articles in part III of the constitution of India, and they do not , in my view disclose any such anomaly or create unnecessary hardship to the people for whose benefit the rights are created . Art. 14 embodies the famous principle of equality before the law and equal protection of the laws , and Articles 15 to 18 and Article . 29(2) relate to particular application of the rule. The principle of equality before the law and equal protection of the laws, and Articles 15 to 18 and Art. 29(2) relate to particular application of the rule. The principle underlying these Articles is the mainspring of our democratic form of Government and it guarantees to its citizens equal protection in respect of both substantive and procedural laws, If the doctrine of waiver is engrafted to the said fundamental principles, it will mean that a citizen can agree to be discriminated. When one realizes the unequal position occupied by the State and the private citizens, particularly in India where illiteracy is rampant, it is easy to visualize that in a conflict between the State and a citizens, the latter may, by fear of force or hope of preferment, give up his right. It is said that in such a case coercion or influence can be established in a Court of law, but in practice it will be well nigh impossible to do so. The same reasoning will apply to Arts. 15 and 16, Ar. 17 illustrates the evil repercussion of the doctrine of waiver in its impact on the fundamental rights. That Article in express terms forbids untouchability, obviously, a person cannot ask the State to treat him as an untouchable. Art. 19 reads:-
'(1) All citizens shall have the right -
(a) to freedom of speech and expression:
(b) to assemble peaceably and without arms:
(c) to form associations or unions:
(d) to move freely throughout the territory of India:
(e) to reside and settle in any part of the territory of Inda:
(f) to acquire, hold and dispose of property; and
(g) to practice any profession, or to carry on any occupation, trade or business.'
The right to freedom is the essential attribute of a citizen under democratic form of government. The freedoms, mentioned in Art. 19 are subject to certain restrictions mentioned in cls. (2) to (6) of that Article. So far as the freedoms narrated in sub-cls. (A) to (g) of Cl. (1) of Art, 19 are concerned, I cannot visualize any contingency where a citizen would be in a worse position than he was if he could not exercise the right of waiver.'
13. In my view, therefore, there can not be an stopped against exercise of fundamental rights on the same principles as are applicable in the same principles as are applicable in the case of waiver thereof. State cannot arrogate to itself a right to commit breach of the fundamental rights of any person by resorting to principles of waiver of estoppel or other similar principles. If there is any continuing action which is violative of fundamental rights of any person that must come to an and. No law or legal principle can prevent it Court from giving remedy for violation of fundamental rights once it is found to exist.
14. This will make it unnecessary for me to go into the question as to whether the requisition order in respect of all or any of the flat have come to an end or lapse because for come to an end or lapse because for some period the flats were not used for the purpose for which they were requisitioned. This point was really canvassed before me in Dec., 1980 and the arguments were completed and I had already formed my vies in the matter and had indicated them in open Court. It was thereafter that the petition was amended and the point discussed and decided upon above was raised and argued in Apr., 1981, This being the position and since the matter was fully argued on this point it is necessary that I must express my views in the matter.
15. While interpreting a statute such as the Bombay Lad Requisition Act. 1948, one must bear in mind that the provisions thereof seek to deprive a person of his rights to property which till recently were the fundamental rights protected by the Constitution. When the said Act was enacted the property rights were still protected. An exception to the protection of this fundamental rights was made in case public interests so required and the State was therefore given a power to requisition any premises and so continue the requisition of the same strictly in public interest. Section 9 of the said Act not only authorises the State Government to release any premises from requisition but also casts a duty on it to do so when the public purpose for which the requisition was made came to an end. It necessarily implies that State Government cannot utilise any premises requisitioned for a particular purpose for another purpose, public or otherwise and once if does so, obviously, for the duration the premises are used or allowed to be used for such other purpose, they are not required for the public purpose for which they were requisitioned and so the original order of requisition must be considered to have lapsed. It will be the duty of the Government to forth with derequisition the same as obviously for sometime the premises were not required for the purpose for which they were requisitioned. This interpretation of mine is supported by the recognized principle that when any land is requisitioned for a particular purpose it can not be utilized for another public purpose. In such a case the State is required first to derequisition the premises and thereafter requisition the same again in accordance with law.
16. Prior to the latest judgment of the Division Bench consisting of Chandurkar and Sawant. JJ. Dt 21-3-1981. In Chhotulal Pandurang Khandvilkar v. State of Maharashtra, in Appeal No. 135 of 1976 in Misc. Petn. No. 49 of 1975, upholding the judgment of Aggarwal, J. And which was strongly relied on by Mr. Kanuga, there were three judgments of this Court on this point, one of a Division Bench in Rangubai Pandurang Joshi v. State of Maharashtra. : (1969)71BOMLR624 , another of Lentin J. Sitting singly in Parmanand Karsandas v. State of Maharashtra, Misc Petn. No. 535 of 1972, dt. 6-3-94 and an unreported judgment of another Division Bench of the Court consisting of Kantawala, C. J. & Madon. J. Dt. 18-1-1978. In Union of India v. Kahan Chand Nayar. Appeal No. 54 of 1973 in Misc. Petn. No. 753 of 1971. I will at some length refer to the facts of all ratio and to see whether the decision relied on by Mr. Kanuge lays down any different ratio.
17. In Rangubai Pandurang v. State, the petitioner's husband was the original owner of the building in which the requisitioned flat was situated. On his death on 6-10-1957 the petitioner became the owner thereof. Respondent a in the said matter was a Government servant and an allottee of the flat which was requisitioned. On coming to learn that respondent 3 was to ratify in 1961. The petitioner applied to have the right back after derequisitioning to the Collector but the request was rejected on 15-10-1951. Soon thereafter, an 9-11-1961 respondent 3 retired from the Government service. But was allowed by the Government to continue in occupation of the requisitioned premises along with members of the family including respondent 4, his dauthter. The fact of making of representation was averred in the petition but was denied by respondent 3. It appeared, however, that respondent 3 had represented to the petitioner that it was on a representation made by him an extension was granted to him to continue his occupation till the end of 1963, By a letter dt. 9-2-1967 the petitioner again approached the Collector of Thana which a request for the derequisitioning of the premises. In the letter she had also stated that respondent 3 had retired in or about the month of Apr., 1963 but was yet allowed to continue in the occupation which showed that the Government did not require the premises for its prposes. By an order dt 16-6-1967 the premises were allotted to respondent 4, who by that time had taken up Government employment. In the meantime, after lengthy correspondence between respondent 3 and the Collector, the Collector passed on order dt. 5th Apr., 1967 directing respondent 3 to vacate the premises. In these circumstances it was submitted by the petitioner that when the requisitioned premises are allotted to a Government servant, his continued occupation after the retirement from Government service is not a public purpose under the Bombay Land Requisition Act and that the fact that for a period of six years the said premises were allowed to be used by the State Government for a purpose other than a public purpose would show that the State Government did not require the said premises for any public purpose and therefore under S. 9 (1), Bombay Land Requisition Act. Ought to have released the said premises from requisition. It was further submitted that even though the Government may have fainted to derequisition the premises, in the circumstances of the case the said requisition order had ceased to be operative or had lapsed by reason of the State Government not availing itself of it, and the petitioner had become entitled to possession of the said premises and consequently the subsequent allotment order in favour of respondent 4 could not have been passed. Two judgments of the Madras High Court were relied on in support of this contention, namely, Menghrai v. Accommodation Controlier. AIR 1965 Mad 172 and Narasinga Rao v. State of Madras (1967) 2 Mad LJ 622. The relevant portion of the judgment in Menghraj's case which is extracted with approval reads as follows (at p. 173):
'................If within a reasonable time after the vacating of the premises by a Government servant may be a month or two, the Government allot it to another Government servant or utilise the premises for their own purposes. They would be acting within the statute. But to say that they were ignorant that the Government servant who had been allotted the premises had ceased to be a Government servant and they allowed the premises to be occupied by members of that ex-Government servant's family, and claim that they acted bona fide, passes my comprehension.'
Relying on the Madras judgments it is held by this Court in Rangubai's case (1959) 71 Bom LR 524 as follows (at pp. 627-28) : -
'In our opinion, these two decisions correctiy; lay down the law. Having regard to the nature of a requisition order, the object for which it is made and the fact that the making and the continuance of a requisition order deprives, or in any event imposes restrictions upon, a citizen's right to hold and enjoy his property. It must follow that unless and until the requisitioned property is required by the Government and used by the Government for a purpose authorised by the relevant statute, the Government is under an obligation and a duty to release the premises from requisition. Thus, if the premises are not used for any public purpose for a length of time, which is unreasonable or are allowed to be used for a purpose other than a public purpose, it would show that the Government does not require the premises for the purpose for which they were requisitiioned. In such a case, even if the Government chooses 1982 Bom./10 IV G-18 not to derequisition the premises, the order of requisition ceases to be operative and lapses by reason of the Government falling to availed itself of it.' It is further held by Madon. J. (P. 628) as follows: '..............The power of the State Government erumpent to requisition property arises only under the Bombay Land Requisition Act. The Government is not entitled in law to use the requisitioned premises or to permit its user for any purpose which would not be a public purpose, From this it must follow that if the property is not longer required for such a a purpose, the Government is under a duty and an obligation to exercise its powers under S. 9 and to release the property from requisition and to deliver possession ot its owner. The failure of the Government to do so cannot entitle it to take advantage of its own breach of duty and to continue to use the property for a purpose which is not a public purpose. In such a case, the Court acting under Art. 229 can compel the Government to carry out its duty.'
18. The principles that emerge from the aforesaid judgment are that (a) if the requisitioned premises are not used for an unreasonable length of time or (b) if they are allowed to be used for a purpose other than the public purpose for which they than the public purpose for which they were requisitioned. It can be presumed that the government did not require the premises for the purpose for which they were requisitioned and the order of requisition will without anything further cease to be operative and lapse. So if the requisitioned premises are not used at all for some length of time which can be considered unreasonable or are allowed to be used by a person who never was or has ceased to be a government servant the order of requisition will lapse. I would however, add a qualification. In case of death or retirement of a government servant, if the premises are allowed to be used by the family members or the retired servant, as the case may be, for a reasonable time there can be no lapse. A statute has to be interpreted in a reasonable way and so it is necessary to engraft such a qualification. The question of such a qualification did not arise in Rangubal's case and so the judgment its silent on that point.
19. Next comes the judgment of Lentin. J, Parmanand Karsandas v. State of Maharashtra. In that case a flat was requisitioned on 2-6-1953. The allottee retired from the Government service on 15-7-1968. The petitioner came to know about the retirement and addressed through his Attorney a letter or 14-7-1969 to the Controller of Accommodation pointing out that respondent 4, the allottee, had retired byt continued in occupation of the premises which he was not entitled to, as a resuit whereof the premises were not being used for a public purpose, and hence should be derequisitioned. On 21-7-1969 an allotment order was issued permitting 4th respondent's son respondent 3 who also was in Government service to occupy the premises. On 4-5-1971 respondent 3 was transferred to Nasik but his father respondent 4 continued to occupy the premises in spite of the fact that respondent 3 was transferred. When the petitioner came to know that respondent 3 was no longer in occupation of the premises, he addressed a letter through his Attorney dt 1-8-1972 to the Accommodation Officer and filed a petition on 2-8-1972. On 30-9-1972 the State of Maharashtra took possession of the premises from respondent 4. On these facts after referring to the aforesaid judgment in : (1969)71BOMLR624 , Lentin. J. States that what was held in : (1969)71BOMLR624 was that if the premises are not used for the purpose for which they were requisitioned for an unreasonable length of time or are allowed to be used for a purpose other than such public purpose and the Government chose not to derequisition the premises the order of requisition ceased to be operative. The contention which was raised on behalf of the Government and was negatived was that the Government was ignorant of the fact that respondent 3 was no longer in occupation of the premises. Another contention which was raised and negatived was that the impugned order of requisition was not exhausted when respondent 4 retired from service from Bombay. Further contention that was raised and negatived was that the premise were still required for housing Government servants and hence the public purpose survived and that there was a long waiting list of Government servants who can be housed in the premises. The ratio of this judgment is that once the premises are used for any length of time which can be considered unreasonable for a purpose which is not a public purpose for which they were requisitioned the requisition order such automatically comes to an end.
20. This brings me to the unreported Division Bench Judgment dt. 18-1-1978 consisting of Kantawala,. C. J. And Madon. J. In the Union of India v, Kahan Chand Nayar. In that case the flat was requisitioned on 20-10-1956 for a public purpose, namely, 'for the office/residential accommodation of a Central Government Officer/Office.' It was allotted from time to time to various persons and ultimately to respondent 2 who was a Judicial Member of the Income-tax Appellate Tribunal. He retired as a Government servant in July 1970. He then requested the Central Government for derequisitioning of the premises to which he received a reply that if the petitioner could make the land the Government could consider the release of the said flat from requisition. The request for taking respondent 2 as direct tenant was rejected by the landlords by their Attorney's letter dt. 22-9-1977. The petitioners-landlords by their Attorney's letter dt. 30-9-1971 called upon the Central Government to with draw that central Government to with draw the requisition order and then filed the petition. The principal ground for the relief was that the premises were not required by the Central Government for the purpose for which they were requisitioned. By an amendment another ground was added, namely, that between Sept. 1970 and Apr., 1972 the Government of India released from requisition about 52 flats pursuant to its declared and settled policy of derequisitioning premises requisitioned or continued under requisition under the Act. While considering the first contention it is held as follows:-
'Respondent 2 was a Judicial Member of the Income-tax Appellate Tribunal, Bombay. He retired from service on July 2. 1970. But the said flat was continued to be occupied by him notwithstanding the retirement. The short question that we have to consider in this appeal is, does the material on record indicate that the said flat was no longer required by the Government for the purpose for which it was requisitioned? It the facts go to indicate such a conclusion then it will be obligatory of incumbent upon the Government to derequisition the said premises. It is not disputed before us that even though respondent 2 retired from service on July 1970 he continued to occupy the said flat, In fact, by letter dt. Sept., 2, 1970 the then Deputy Director of Estates (p) inter alia informed respondent 2 that if he could make the landlords agree to take him as a direct tenant and accept possession of the flat while the same was in occupation by him the Government could consider the release of the flat to the owner. The contents of this letter therefore clearly show that not only the Government was allowing respondent 2 after he ceased to be a Government servant to occupy the said flat contrary to the purpose for which it was requisitioned. But it was prepared to consider the request of respondent 2 to derequisition the said flat in case the petitioners were prepared to accept him as a direct tenant thereof. This letter, as a direct tenant thereof. This letter, therefore, unmistakably goes to show that on the date when this letter was written the Government was not genuinely in need of the said flat for the purpose for which it was requisitioned.
Other circumstances also go to show that the Government was not really in need of these premises for utilising the same for the public purpose for which they ware requisitioned. After the Government realised that the petitioners were not willing to accept respondent 2 as a direct tenant, no prompt and effective steps were taken by the Government for taking possession of this flat from respondent 2 and he continued to occupy the same for an abnormally long period. It appears from the affidavits filed on behalf or respondent I that proceedings for eviction of respondent 2 were commenced by issuing a show cause notice on Jan. 16, 1971, but the dilatory manner in which these proceedings were continued by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, really goes to show that the Government was not genuinely in need of these premises for the purpose for which they requisitioned the same.'
This judgment, therefore, clearly shows that if the Government does not take prompt and effective steps to evict a Government servant after retirement for an abnormally long period it would lead to the conclusion that the premises were no longer required for the public were no longer required for the public purpose for which they were requisitioned. This judgment was not cited before Aggarwal, J. Chandurkar and Sawant, JJ., and had not been considered by them. This judgment also clearly shows that the used of the premises for the purpose other than the public purpose for which it was requisitioned will amount to cessation of its use for the public purpose for which it was requisitioned and the Government must be compelled to derequisition the same.
21. In the case before Aggrawal, J. And Chandurkar and Sawant. JJ. On appeal, the relevant facts were that one Gadre, Personal Assistant to late Chief Minister Shri M. S. Kannamwar, was allotted the premises in question, Gauderies on 2-2-1966. His widow requested the Government to permit her to occupy the said premises, but as she had her own house somewhere in aria in Bombay, the request was rejected by the Government and she was called upon to vacate the premises in Aug., 1966. In order to retain her possession the widow filed a declaratory suit in the Small Cause Court in the year 1966 and obtained an injunction against the Government, restraining the Government from evicting her from the premises. This Injunction was subsequently vacaled. On appeal, the appellate bench restored the order of injunction. Government took the matter to the High Court by Filing Special Civil Application and the order of the injunction was quashed by the High Court. While quashing the order the Government was directed to evict the widow and her children before 3-8-1973. The petitioners became owners of the premises, in the meantime on or about 30-9-1972, and addressed a letter dt. 20-7-1972, to the Controller of Accommodation drawing his attention to the order passed in the said Special Civil Application and called upon his to evict Mrs. Gadre and her children and derequisition the premises. The Controller of Accommodation by his letter dt. 10-8-1973 rejected the request for derequisitioning, This was followed by a letter dt 12-8-1972. From the petitioners Advocate to the Chief Secretary to the Government. There, after, the Controller of Accommodation by his letter of dt. 2-10-1974 stated that Mrs. Gadre and others would be asked to vacate the premises by the and of 1974 under any circumstances. Ultimately they were not evicted by the end of that year and the petition was filed on 21-1-1975. The possession was taken from Mrs. Gadre only on 15-3-1975 and was allotted to another Government employee on or about 19-3-1975. After mentioning the facts in detail which I have enumerated above briefly. Aggarwal. J. Proceeded to consider the judgment in : (1969)71BOMLR624 and after extracting a portion of the judgment and agreeing with the same proceeded to consider the facts on which decision : (1969)71BOMLR624 was arrived at. He has then held that the facts before Madon, J. Were clearly distinguishable inasmuch as in the case before Madon. J. The allotted had retired in 1961 and thereafter was allowed to continue in the requisitioned premises for a period of six years with the consent of the Collector, while in the case before him the facts did not show that there had been an unreasonable length of time during which the premises were allowed to remain in the use and occupation of Mr.s Gadre. The learned Judge therefore, arrived at the decision only on the facts of the particular case but did not lay down any different law, The Division Bench consisting of Chandurkar and Sawant. JJ. On appeal from the judgment has observed as follows:
'............The Government had tolerated the occupation on purely humanitarian considerations and it was not the intention of the Government to use the premises for the benefit of the said occupants. In this view of the matter, the learned Judge dismissed the petition Hence, the present appeal.
'Shri Madekar, the learned counsel appearing for the appellant-petitioners, advanced the very same arguments before us as were advanced by him before us as were advanced by him before the learned singly Judge. We are in complete agreement with the learned judge that on the facts and circumstances of the case, it Is not possible to hold that the Government had used or allowed the user of the suit premises,de;oberate;u for a purpose other than a public purpose for which the same were requisitioned, viz., to house a Government servant.
'What it argued is that since the Government did not take active steps to evict the occupants after 3-8-1973 till 15-3-1975. The user during the said period was a user allowed by the Government for a purpose other than a public purpose. In this connnection. It is relevant to note that admittedly the present petitioners became the owners of the suit premises by a conveyance executed in their favour by the previous landlord on 30-9-1972. The petitioner therefore very will knew, at the time they were under requisition. They cannot, therefore, be heard to complain if they did not get the vacant possession of the suit premises or are unable to get the same even now. As regards the occupation allegedly allowed by the Government from 3-8-1973 to 15-3-1975, admittedly there is nothing on record to show that the Government had on its own permitted the occupants to remain in such occupation. All that happened was that in spite of the expiry of the period granted by this Court, Government did not take steps to physically throw out the occupants till 15-3-1975. While examining the alleged inaction on the part of the Government was faced with the problem of evicting a widow of its former servant with her six children. The Government cannot be said to be unaware of the acute hardship that was going to be caused to the family and hence if the Government did not act hastily and throw out the occupants for a period of about one year and nine months. It cannot be said that the Government had intentionally allowed then the use of the suit premises. It was only if the petitioners had succeeded in showing that the Government had no intention to use the suit premises for the purpose for which they had requisitioned and wanted to use then for the occupation of the siad family that the petitioners would have been entitled to the reliefs claimed by them. However, on the facts revealed, it could not be siad the Government had abandoned its original intention to use the suit premises for the public purpose.'
The learned Judges thereafter proceeded to consider the contention of Shri Madekar for the patitioner that Mrs. Gadre had another residential accommodation available to her at Irla, as follows :
'Had this fact been pointed out at the relevant time, probably the Government would have found no difficulty in using harsh measures at the earliest opportunity and throwing out the occupants from the suit premises earlier than they did, in the circumstances. It cannot be said that the Government delayed the action deliberately.'
I may, however, point out that this observation is based on some factual error, I find that Aggarwal. J. Has clearly stated in his judgment that in the year 1966 the Government had rejected the application of Mrs. Gadre for permission to continue in occupation specifically on the ground that she had here own house in Irla in Bombay. The Government therefore, obviously knew that Mr. Gadre had another premises available. It is quite possible therefore that if this fact was specifically brought to the notice of the Division Bench it may have decided the matter differently. In any event it is clear that the decision turned only on the facts of that case and did not lay down any principle or ratio. This judgment, therefore, cannot help Mr. Kanuga.
22. I must, therefore, apply the principle culled out by me above from Rangubai's case and other judgments and apply the same to each of the four flats in question. The four flats in question are 2G, 2H, 3E, and 3H, So far as flat 3E is concerned the person in possession at the relevant time and who is in possession even at the date of the petition if a Government Officer and so this flat 3E is not liable to be derequisitioned by the Government. Mr. Rana has rightly not made any submission in respect of this flat on facts.
23. As regards flat 2G, prior to 31-7-1972 one Fernandes, a Government Officer was an allottee thereof, He died on 30-7-1972 after a short illness. He was on police force for nearly 30 years and had excellent career. After his death his widow Dr. Mrs. Winifred Fernandes by her letter requested the Hon'ble Minister of State for Home Department that the said flat should be released in her favour pointing our various facts. She was allowed to continue to remain in occupation of the said said flat till her request was finally considered. By a letter dt. 13-6-1973 her request for derequisitioning was rejected and she was granted time of four months to vacate the same. The period of 4 months to vacate the same. The period of 4 months expired in Dec., 1973. This flat was allotted to another officer on 11-1-1974. Mr. Kanuga for the State has produced before me a circular letter dt 6-9-1972 No. RSK./1273/52-XV from Home Department of the Inspector Generals of Police and Commissioner of Police. By the said circular letter it is clearly provided that in certain cases four months time is to be given for purpose of vacating of the premises instead of normal one month. It would appear that practice was being followed. When the officers raised contentions regarding non-payment of dues like gratuity and provident fund, to grant time to vacate till such dues were paid. This circular directed the discontinuance of this practice and provided for maximum vacating time of four months. I am assuming this period of four months to be a reasonable time up to which requisitioned flat may be allowed to be used by a retired government servant or by the family members of a deceased government servant, without deciding whether is reasonable or not as for the purpose of this petition it is not necessary for me to decide the same. The widow was allowed to remain in the premises for more than a year. In my view it is not permissible to the Government to allow any person to remain in occupation of such premises for such a long time. The very fact that the person is allowed to remain in possession for such a long period of one year indicated the non-requirement by the State Government of that particular premises for the purpose of which is was requisitioned for that period. It was therefore incumbent on the State Government to derequisition the same. The facts clearly fall within the ratio of Rangubai's case and also Kahan Chand Nayar's case Howevver, the aforesaid facts cannot help the petitioner inasmuch as the petition based on the said facts was already filed and withdrawn. After Dr. Mrs. Fernandes vacated the flat, it was allotted to one B. T, Rele, Assistant Commissioner of Police who occupied the flat from 11-1-1974 and retired from the police force on 1-10-1976 after a long and meritorious service. He was initially allowed a period of 4 months to vacate the flat. This was in accordance with the aforesaid circular letter. However, he requested for extension of time to vacate and was granted time till 1-6-1976. He then vacated the flat on 30-9-1977. It is thus clear that after his retirement he was allowed to occupy the flat by consent of the Government for full one year. The use of the flat by him of this one year cannot by any stretch of imagination be said to be for the public purpose for which the flat was requisitioned. In the circumstances the flat was not being used for the public purpose but was used for some other purpose and the requisition authomatically came to an end and the Government became bound to hand over possession thereof to the petitioners.
24. Coming to flat 2H on the 2nd floor, the flat was allotted prior 1-9-1972 to Mr. Bhesadia, who retired from service from 1-9-1978. At his request he was given 5 months time to vacate the flat. He vacated the flat on 31-1-1979. He was thus allowed to occupy the flat for a period of 5 months. The flat was then allotted to one R. N. Dahate. There is controversy as to whether Dahate occupied the flat immediately or occupied it must after the filing of the petition. However, this being the controversial question of fact requiring oral evidence. I do not intend to go into the controversy. Even considering four months time as reasonable as per circular or respondent I itself, I do not see how respondent 4 could have allowed the retired servant to continue for a period of 5 months. This period could not be said to be reasonable period and this flat also must be demed to have been freed of requisition as the order of requisition lapsed and the possession thereof must be restored to the petitioner. I am aware that there cannot be any strick rule to as to what period can be said to be reasonable and what period unreasonable, but in view of the Government's own circular a period of more than 4 months cannot be considered reasonable. If it was Government's own flat obtained by it on ownership or lease or similar basis and not requisitioned, nobody can find fault with the Government allowing its retired employees to continue in occupation for any length of time on ground which is considered reasonable, but, looking to the provisions of the Act and the judgments of this Court by which the Government is bound, it cannot allow any person to continue in possession of a requisitioned flat contrary to the intention of the Act.
25. Coming to flat 2H, one M. S. Warty. Assistant Commissioner of Police was an allottee of the flat. He vacated the flat on 15-4-1976 and was occupied by V. N. Samant, Inspector of Police on 16-4-1976. Samant, Inspector of Police on 16-4-1976. Samant retired on 31-12-1977 and requested that he be allowed to continue to stay in the said flat till May 1978 as his daughter were studying and they should be allowed to complete final examination before he was asked to vacate the flat. Before this request could be considered he addressed a letter dt. 25.1.1978 to the Minister for Home Department for permission to retain the flat and permission was granted to retain the flat up to 31-3-1976 which time was extended to 28-7-1978 at the request of Samant. He then addressed his request to the Chief Minister and was granted time till 3-12-1978. The grounds given by Samant in support of subsequent extensions were non-payment of provident fund and gratuity. These amounts were paid on 30-9-1978. However,on his further request Samant was granted extension up to 3-4-1979. The possession of the said flat was given by Samant on 6-4-1979. The first thing that strikes me is that these extensions were granted on the very grounds on which the extensions were not to be granted under the afore said letters addressed by the Home Department to the L.G. Ps. And Commissioners. Even in the absence of the letter such granting of time for such a long period of over one year will show the non-requirement of the flat for the public purpose for which it was requisitioned for that period, In these circumstances this flat must be deemed to be free of requisition and the Government was bound to hand over possession thereof to the petitioner.
26. In the circumstances. If I had to decide whether all or any of the four flats must be deemed to be free of requisition by the reason of the requisition order having lapsed and if the Government, is bound to having lapsed and if the Government, is bound to handover possession thereof in the petitioner. I would hold that the Government was bound to handover possession of the three flats viz., flats G and H on the and floor and flat H on the 3rd floor but not flat 3E. However, in the view that I have taken on the question of law, all the four flats are wrongly continued to be treated by respondent I as under requisition and the respondents are bound to handover the possession of all the four faults to the petitioner.
27. In the result, rule is made absolute in terms of prayer (a) as regards all the four flats. Respondent I to pay to the petitioner costs of the petition. Looking to the time taken, I quantify the costs at Rs. 1,500/-. The Government is given time up to 31-7-1981 to handover possession.
28. Order accordingly.