State Of Maharashtra & Ors vs M/S. Narmada Estates Pvt. Ltd. & Ors

State of Maharashtra & Ors. ... Appellants

Vs.

M/s. Narmada Estates Pvt. Ltd. & Ors. ... Respondents

O R D E R

Leave granted. Heard learned counsel.

2. First respondent claims to be the owner of property

bearing No.1300-1303, Village Yerawada, Pune District.

First respondent claims that the said property bearing

Nos.1300-1303 as also adjoining property bearing

Nos.1304-1305 were requisitioned by the State Government

from the then owners on 20.9.1942. Thereafter the

properties were allotted and handed over to Yerawada

Mental Hospital on 1.4.1945.

3. The Yerawada Mental Hospital found the area

insufficient and shifted to a larger premises in or about

1990. Ever since then, property bearing No.1300-1303 is

not in use. In fact the state government de-requisitioned

and surrendered back the adjoining premises No.1304-1305 2

to its owners. On 27.2.1994, the first respondent

purchased premises No.1300-1303 from the previous owners.

The first respondent filed W.P.No.2310/1996 praying for a

direction to the state government to derequisition the

said property. However, the said writ petition was

withdrawn on 23.7.1996 with liberty to file a suit.

Thereafter, the first respondent filed a civil suit

(No.40 of 1997) in the Court of Small Causes Court, Pune,

for possession against (i) the State Government, (ii) Dy.

Director of Health Services, (iii) Yerawada Mental

Hospital, and (iv) the Collector of Pune. The legal heirs

of previous owners were also impleaded as defendants 5(a)

to (f) and 6(a) to (e). The said suit is still pending.

4. On 13.2.2004, the first respondent filed another

writ petition (WP No.2206/2004) seeking a direction to

the appellants to delivery back possession of property

bearing Nos.1300 to 1303. There was however no prayer for

derequisitioning the property. A Division Bench of the

Bombay High Court allowed the said writ petition by the

impugned order dated 17.2.2005 directing the appellants

herein to issue an order of derequisition on or before

3.12.2005 and hand over possession of the property to the

first respondent. The said order is challenged in this

appeal by special leave.

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5. The Appellants contend that the proceedings for

eviction initiated by the first respondent are still

pending and therefore, a writ petition for possession was

not maintainable. It is submitted that having regard to

Section 27 of the Maharashtra Rent Control Act, 1999, on

the date of coming into force of the Bombay Rents, Hotel

and Lodging Houses Rates Control, Bombay Land Requisition

and Bombay Government Premises (Eviction) Amendment Act,

1996, that is on 7.12.1996, the State Government or the

Government allottee (in cases where the requisitioned

premises was allotted to someone) was deemed to have

become the tenant of the landlord for the purposes of the

Rent Control Act and therefore, the remedy of the owners

of such property was to seek eviction under the Rent

Control Act; and that in the absence of any prayer in the

writ petition for derequisition of the property, and the

withdrawal of the earlier writ petition for

derequisition, the High Court could not have directed

derequisition nor issue a consequential direction for

delivery of the requisitioned property.

6. The first respondent on the other hand contended

that the premises is not being put to any use from 1990

and therefore, there was no justification for the

appellants to continue in possession; that on account of

non-occupation and neglect, the premises has become 4

dilapidated and some portions have even been

unauthorisedly encroached; and that in spite of these

facts, the appellants were unreasonably refusing to

release and deliver back the property to the owner. It

was alleged that the adjoining premises No.1304-1305 had

been derequisitioned/released and therefore there was

absolutely no justification for not derequisitioning/

vacating the premises No.1300-1303 belonging to the first

respondent. It was also contended that Section 27 of the

Rent Control Act was inapplicable to the said property.

It was submitted that the prayer for possession in the

writ petition necessarily includes a prayer for de-

requisition.

7. On a careful consideration of the averments in the

writ petition (W.P.No.2206 of 2004) and the prayers

therein, we find that the impugned order of the High

Court cannot be sustained. The High Court assumed that

the petition was for derequisitioning the property and

has directed derequisitioning even though there was no

prayer for derequisitioning. In the absence of such a

prayer, the appellants did not have an opportunity to

meet any claim for derequisition. The High Court did not

also consider the effect of withdrawal of earlier writ

petition for derequisitioning and the pendency of the

civil court for possession. The impugned order of the 5

High Court did not also deal with several contentions of

the first respondent including the contention based on

release of premises Nos.1304-1305, presumably because it

was allowing the writ petition. There is a need for

dealing with those contentions also. The impugned order

therefore calls for interference.

8. In view of the above, we allow this appeal, set

aside the impugned order dated 17.2.2005 and consequently

writ petition will stand restored to file of the High

Court. The High Court may grant an opportunity to the

parties to amend their pleadings, if necessary, and then

decide the matter in accordance with law. Having regard

to the fact that the matter relates to a requisition made

in 1942 and the submission that from 1990, the property

has not been used and that the property is in a very

dilapidated condition, we request the High Court to

dispose of the matter expeditiously. All contentions are

left open.

___________________J.

(R V Raveendran)

New Delhi; ____________________J.

January 15, 2010. (Surinder Singh Nijjar)