Dismissed

Kaikobad Byrumjee and Sons (Agency)Pvt. Ltd. and Anr. v. Union of India and Ors.

Bombay HC29 Aug 2005WP/1389/1993

Case brief

AI extract

What is this about?

Writ petitions by landlords seeking direction to Government respondents to vacate flats leased in 1944 under a dehiring policy. The court held that no eviction can be directed under writ jurisdiction but ordered the Government to ensure the tenants take a speedy decision.

What did the court decide?

Petitions dismissed with rule discharged; Government directed to take expeditious decision to vacate premises.

Kaikobad Byrumjee and Sons (Agency)Pvt. Ltd. and Anr. Vs… — Landlord and Tenant | Bombay HC (2005)

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`IN THE HIGH COURT OF JUDICATURE AT BOMBAY`
`ORDINARY ORIGINAL CIVIL JURISDICTION`
`WRIT PETITION NO.1389 OF 1993`
`And`
`WRIT PETITION NO.1390 OF 1993`

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WP NO.1389 OF 1993

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`1.`	`Kaikobad Byramjee and Son )` `(Agency) Private Limited, )` `having its office at No.1, )` `Gymnasium Road, Times of India)` `Building, Bombay - 400 001. )`
`2.`	`Mr.Khushrooh P.Byramjee of )` `Bombay, Indian Inhabitant, )` `residing at Queen’s Chambers, )` `3rd Floor, 89, M.Karve Road, )` `Bombay - 400 020. ).. Petitioners`
	`Versus`
`1.`	`The Union of India, )` `through the Secretary, )` `Ministry of Defence. )`
`2.`	`The Flag Officer, )` `Commander in Chief, )` `Headquarters Western Naval )` `Command, Bombay. )`
`3.`	`The Defence Estate Officer, )` `Bombay Circle, Colaba, )` `Bombay - 400 055. ).. Respondents` `--`
`WP`	`NO.1390 OF 1993`

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`1. Kaikobad Byramjee and Son )`
`(Agency) Private Limited, )`
`having its office at No.1, )`
`Gymnasium Road, Times of India)`

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 Building, Bombay - 400 001. )
 2. Mr.Khushrooh P.Byramjee of )
 Bombay, Indian Inhabitant, )
 residing at Queen’s Chambers, )
 3rd Floor, 89, M.Karve Road, )
 Bombay - 400 020. ).. Petitioners
 Versus

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 1. The Union of India, )
 through the Secretary, )
 Ministry of Defence. )
 2. The Defence Estate Officer, )
 Bombay Circle, Colaba, )
 Bombay - 400 055. ).. Respondents
 --

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 Shri M.P.S.Rao i/b Desai Birjis & Chinoy for the
 petitioners.

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 S/Shri Y.S.Bhate with Y.R.Mishra & D.A.Dube for the
 respondents.
 --

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 CORAM : R.M.S.KHANDEPARKAR &
 V.M.KANADE, JJ.
 DATED : 29th AUGUST, 2005.

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ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )

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 1. Since common questions of law and facts arise
 in these petitions, they were heard together and are
 being disposed of by this common judgment.

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 2. The petitioners by these petitions seek relief
 in the nature of writ for direction to the respondents

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 to forthwith implement the de-hiring policy by which
 the private premises came to be occupied on rent by
 the defence service personnel and further for
 direction to hand over vacant and peaceful possession
 of the flats in occupation of the respondents for
 giving effect to such dehiring policy in relation to
 the suit flats.

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 3. In the Writ Petition No.1389 of 1993, the suit
 premises comprise of Flat No.5 whereas in the Writ
 Petition No.1390 of 1993, the same comprise of Flat
 No.8 in the Prince Court, situate at Mereweather Road,
 Colaba, Bombay, and both the flats came to be occupied
 by the respondents since 1944 consequent to the
 agreement executed in respect of each of the flats
 separately on 7th September, 1944.

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 4. It is the contention of the petitioners that
 inspite of the flat being not required to be occupied
 and used by the respondents and inspite of their
 policy to dehire the private premises which were taken
 on rent or requisitioned, the respondents are
 illegally withholding the possession of the suit
 flats. It is also the contention of the petitioners
 that though the possession of the premises was taken
 over consequent to the agreement between the parties,

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 it was infact requisitioned in terms of Rule 75A of
 the Defence of India Rules, 1939 which were framed in
 terms of the Defence of India Act, 1939. Being so,
 and since the premises are no longer required by the
 respondents, apart from the fact that their policy of
 dehiring of the private premises which came to be
 occupied in terms of the said provisions of law, it
 was incumbent upon the respondents to deliver the
 vacant possession of the suit flats to the petitioners
 and having failed to do so, the petitioners are
 compelled to approach this Court. It is their further
 contention that though the parties had executed the
 agreement, while confirming the occupation of the suit
 flats by the respondents, it was clearly mentioned in
 the agreement that such occupation was for war purpose
 in exercise of powers under the provisions of Rule
 75-A(1) of the Defence of India Rules. Being so, the
 petitioners are entitled to seek necessary relief by
 approaching this Court in writ jurisdiction.

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 5. On the other hand, it is the case of the
 respondents that dehiring of the premises belonging to
 private premises is being done as and when the
 premises are found to be not required for occupation
 of the defence personnel and accordingly the premises
 will be dehired as and when occasion arises.

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 6. While referring to the various correspondence
 between the parties which according to the learned
 Advocate for the petitioners reveal a clear intention
 on the part of the respondents to vacate the premises
 in terms of their policy of dehiring of private
 premises which came to be occupied by the defence
 personnel on rent as well as referring to the
 agreement dated 7th September, 1944 between the
 parties which, according to the learned Advocate,
 refers to the requirement of the premises for war
 purposes and occupation thereof being in exercise of
 the powers under Rule 75A(1) of the said Rules, it is
 sought to be argued that since the purpose for which
 the premises came to be occupied no more subsists, the
 suit flats in question being not required to be
 occupied by the respondents, the premises being for
 most of the time kept closed, besides there being
 clear policy to dehire the private premises, it was
 incumbent upon the respondents to deliver the vacant
 possession of the suit flats to the petitioners and
 having failed to do so, the Court should direct the
 respondents to implement their policy and deliver the
 possession of the suit flats to the petitioners.

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 7. The contention of the learned Advocate for the

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 respondents is to the effect that the agreement dated
 7th September, 1944 clearly disclosed the relationship
 of the landlord and tenant between the parties and
 being so, the provisions of the Rent Act in force are
 clearly attracted and would be applicable for the
 purpose of eviction of the person in occupation of the
 suit flats as the tenant. It was, however, sought to
 be contended on behalf of the petitioners that the
 provisions which are presently in force, i.e.
 Maharashtra Rent Control Act, 1999, are not applicable
 to the premises since the premises, which are in
 occupation, are in the building which has been
 constructed on a land belonging to the local authority
 and this fact being not in dispute, considering the
 provisions of Section 3(1)(a) of the Maharashtra Rent
 Control Act, 1999, the provisions of the Rent Act
 would not apply.

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 8. Upon hearing the learned Advocates for the

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 parties and perusal of the records, it is apparent
 that the occupation of the respondents in the premises
 is in the nature of lessees and this fact has been
 clearly confirmed by the agreement dated 7th
 September, 1944 executed between the parties.
 Undoubtedly, the agreement refers to section 75A of
 the Defence of India Rules, 1939. In fact, it is not

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 the Section in the Act but it is a rule from the
 Defence of India Rules, 1939.

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 9. Rule 75A(1) of the Defence of India Rules
 provided that 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 the efficient

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 prosecution of the war, or for maintenance supplies
 and services essential to the life of the community,
 that Government may by order in writing requisition
 any property, moveable or immoveable, and may make
 such further orders as appear to that Government to be
 necessary or expedient in connection with the
 requisitioning provided that no property used for the
 purpose of religious worship and no such property as
 is referred to in rule 66 or in rule 72 shall be
 requisitioned under the said Rules. Obviously, the
 Rule 75A speaks of the power of the Government to hire
 any property, immovable or otherwise, whenever it was
 required for efficient prosecution of the war or for
 maintenance of supply and services essential for the
 war. However, such requisition was to be made by the
 Government by issuing the order in writing. The
 provision is very clear in that regard. Besides, the

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 very concept of requisition of a property is contrary
 to a voluntary execution of the agreement delivering
 the possession of the property to the Government by a
 private party. The requisition does not require
 willingness on the part of the owner of the premises,
 nor the consent of the owner is required for the
 purpose of requisitioning the property. That is not
 the case in relation t the agreement between the
 parties. An agreement implies consent and willingness
 on the part of the parties thereto, and therefore, of
 the owner of the premises or consent of the party
 delivering the possession to the lessees. Being so,
 provision under Section 75A(1) cannot be attracted
 under any circumstances in relation to the agreement
 entered into between the parties in the case in hand
 which was executed on 7th September, 1944. Mere
 reference to Rule 75A of the said Rules in the said
 agreement will not make an agreement by itself be an
 order of the Government under the said Rule. The Rule
 specifically provides for an order by the Government
 and not mere agreement between the parties. Being so,
 occupation of the respondents in the suit premises
 cannot be said to be by virtue of requisition of the
 premises by the Government. It was purely by virtue
 of an agreement entered between the parties in that
 regard. The agreement was essentially for rent.

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 Hence, the respondents are apparently the lessees in
 relation to the suit premises.

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 10. Section 3(1)(a) of the Maharashtra Rent
 Control Act, 1999 provides that the said Act shall not
 apply to any premises belonging to the Government or a
 local authority or apply as against the Government to
 any tenancy, licence or other like relationship
 created by a grant from or a licence given by the
 Government in respect of premises requisitioned or
 taken on lease or on licence by the Government,
 including any premises taken on behalf of the
 Government on the basis of tenancy or of licence or
 other like relationship by, or in the name of any
 officer subordinate to the Government authorised in

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 this behalf; but it shall apply in respect of
 premises let, or given on licence, to the Government
 or a local authority or taken on behalf of the
 Government on such basis by, or in the name of, such
 officer. The provision of law specifically provides
 that the same shall apply to the premises let out to
 the Government or any local authority or taken on
 behalf of the Government. Apparently, there is
 absolutely no substance in the contention that the
 provisions of the Rent Act are not applicable to the
 premises in question.

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 11. The learned Advocate for the petitioners had
 drawn our attention to the decision given by the
 Division Bench of this Court in the Notice of Motion
 No.3234 of 1989 in Appeal No.1294 of 1989 in Writ
 Petition No.3038 of 1989 on 20th March, 1990.
 Therein, while dealing with the Government policy for
 dehiring of the private premises and considering the
 premises of the party to that proceedings were being
 occupied by the respondents, it was held that "We
 hope, however, that the necessary decision as to
 dehiring will be taken expeditiously and also on or
 before 18th April, 1990 at the latest." Apparently,
 the same does not disclose any direction in the nature
 which was asked for in the present petition. The
 direction was merely to take appropriate decision
 bearing in mind the policy of dehiring of the private
 premises. Being so, the said decision is of no help
 to the petitioners in the cases in hand.

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 12. However, the fact remains that the possession
 of the premises was taken by the respondents in the
 year 1944 during the Second World War and prior to the
 independence of our country. Undisputedly, the rent
 which is being paid continues to be at the old amount
 of rent. It cannot be also disputed that the building

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 has completed more than 60 years. In the
 circumstances and bearing in mind that the occupants
 are none else than the government, it would be in the
 interest of justice that the respondents to take
 appropriate decision as sought to be argued on behalf
 of the petitioners, and more particularly in view of
 their own policy of dehiring, though it will not be
 proper for this Court to issue any direction in that
 regard as it would virtually amount to encroaching
 upon the jurisdiction of the competent authority under
 the Rent Act. Nevertheless, bearing in mind the
 series of letters disclosing repeated assurances on
 the part of the respondents to take appropriate
 decision to vacate the premises as early as possible,
 the respondents in that regard are certainly expected
 to take appropriate decision as expeditiously as
 possible. In fact, the respondents should not have
 waited for this Court to make these observations in
 the matters and more particularly when the similar
 directions were given in another case as long back as
 in the year 1990.

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 13. With above observations, the petitions are
 dismissed. Rule in both the petitions is discharged
 with no order as to costs.

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 (R.M.S.KHANDEPARKAR, J)

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 ( V.M.KANADE, J)

Kaikobad Byrumjee and Sons (Agency)Pvt. Ltd. and Anr. v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Kaikobad Byrumjee and Sons (Agency)Pvt. Ltd. and Anr. v. Union of India and Ors.

Case brief

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What did the court decide?

What the court decided

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