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Ferdinand Aloysius Francis Miranda Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 762 of 1968
Judge
Reported inAIR1980Bom34
ActsBombay Land Requisition Act, 1948 - Sections 9, 9(3) and 9(4); Bombay Land-Requisition Ordinance, 1947 - Sections 3 and 4; Constitution of India - Article 226; Representation of the People Act, 1951
AppellantFerdinand Aloysius Francis Miranda
RespondentThe State of Maharashtra and ors.
Appellant AdvocateMalcolm Pereira, Adv.
Respondent AdvocateS.T. Tijoriwala,;M.I. Sethna,;I.S. Khomani and;N.H. Gursahani, Advs.
Excerpt:
- .....the respondent no. 3 to this petition is a bachelor and he was residing in the premises with his brother original respondent no. 4. respondent no. 4 subsequently married and brought his wife also to reside in this premises. it appears that mr. g. v. thadani, for whose benefit the premises were requisitioned, left the premises and went to poona and settled there, and the premises continued to remain in possession of his brother original respondent no. 4 and his wife.2. the petitioner became major and by a deed of transfer executed by his mother and brother, became owner of the property on march 7, 1963. the petitioner, in the meantime, was in need of the premises, and accordingly addressed a letter dated april 1, 1967 to the controller of accommodation, requesting that the premises.....
Judgment:
ORDER

1. The father of the petitioner owned a house known as 'The Gabion', standing on Plot No. 148 P. at St. Alexius Road, Bandra, Bombay, The father of the petitioner died on Jan. 23, 1945, and on his death, the mother and real brother of the petitioner obtained probate from this Court. The petitioner was minor at that time. Subsequently, in April 1, 1948, the first floor of this building was requisitioned by the Government of Bombay, in exercise of the powers under Sections 3 and 4 of the Bombay Land-Requisition Ordinance, 1947. It is required to be stated that the order of requisition nowhere indicates the purpose much less a public purpose. The premises were requisitioned for the benefit of one G. V. Thadani. This G. V. Thadani obtained the possession of the first floor of the building and started residing there with his real brother, one T. V. Thadani. Mr. G. V. Thadani the respondent No. 3 to this petition is a bachelor and he was residing in the premises with his brother original respondent No. 4. Respondent No. 4 subsequently married and brought his wife also to reside in this premises. It appears that Mr. G. V. Thadani, for whose benefit the premises were requisitioned, left the premises and went to Poona and settled there, and the premises continued to remain in possession of his brother original respondent No. 4 and his wife.

2. The petitioner became major and by a Deed of Transfer executed by his mother and brother, became owner of the property on March 7, 1963. The petitioner, in the meantime, was in need of the premises, and accordingly addressed a letter dated April 1, 1967 to the Controller of Accommodation, requesting that the premises should be de-requisitioned. The prayer was turned down and a second application also met with the same fate. Thereafter, the petitioner has filed the present petition under Article 226 of the Constitution, praying that a writ of mandamus be issued against respondents 1 and 2 directing them to pass an appropriate order of de-requisitioning the premises and returning possession to the petitioner.

3. There are certain events which have taken place subsequent to the filing of this petition in this Court on December 17, 1968. I have indicated hereinabove that the petitioner claims that Respondent No. 3 left the premises and went to Poona in the year 1958 and thereafter the premises were in occupation of his brother and brother's wife. The brother of Respondent No. 3 died in May 1975 leaving behind his widow and a son. The widow is residing in the requisitioned premises at present. The Petitioner contends, and it is not disputed, that the widow of Respondent No. 4 has acquired a flat in building 'Belle View' situated at Bhulabhai Desai Road, Bom-bay, on ownership basis and the son of Respondent No. 4 is not in need of the requisitioned premises.

4. The petition was resisted by Respondents Nos. 1 and 2 inter alia contending that the original allotment order was not for the exclusive benefit of G. V. Thadani, but was meant for the benefit of the joint family. Let us assume for a moment that the original allotment was not only to Respondent No. 3, but also to the members of his family and consider what is the existing situation. There are two facts which have been brought on record to indicate that Respondent No. 3 is not occupying the requisitioned premises. The Petitioner has addressed a letter to the Rationing Officer of the locality and the Petitioner has been informed that in January 1974, the Ration-card issued in favour of Respondent No. 3 was cancelled as he was not found in occupation of the requisitioned premises. The second circumstance on which reliance is placed is that the name of Respondent No. 3 was deleted from the Electoral Roll maintained under the provisions of the Representation of the People Act, 1951, as Respondent No. 3 had left the premises under requisition. From these two circumstances, it is obvious that Respondent is not in occupation of the requisitioned premises. The Respondent No. 3 has filed an affidavit dated July 29, 1969, denying that he had left the requisitioned premises, but it is impossible to accept the submission made in that affidavit. Nothing is brought on the record to indicate that Respondent No. 3 is still in occupation, and the two circumstances mentioned hereinabove are sufficient to answer the claim made by Respondent No. 3 that he is in occupation of the requisitioned premises.

5. On behalf of Respondents Nos. 1 and 2, it was urged by Mr. Tijoriwala that the original allotment order in favour of Respondent No. 3 was for housing homeless persons. If Respondent No. 3 has left the premises, then that purpose no longer survives. The original Respondent No. 4, the brother of G. V. Thadani, died in May 1975 and the only surviving member of the joint family is his widow. It is not disputed on her behalf that she has acquired an ownership flat in 'Belle View' building, situated at Bhulabhai Desai Road. If the only surviving member of the joint family holds an ownership flat in Bombay, then it is difficult to conceive how the original purpose of housing homeless persons is still valid and in existence. In my judgment, even accepting the entire claim made by Respondents Nos. 1 and 2, it is impossible to continue the order of requisition issued on April 1, 1948. In my judgment, the Respondents Nos. 1 and 2 were obviously in error in refusing to de-requisition the premises on the set of facts, the Respondents Nos. 1 and 2 have no power to retain or to continue the order of requisition.

6. Accordingly, the Petition must succeed. The rule is made absolute and the writ of mandamus is issued against Respondents Nos. 1 and 2 directing them to release from requisition the premises situated at First Floor of the building 'The Gabion', on Plot No. 148 P. St. Alexius Road, Bandra, Bombay, under the provisions of Section 9 (3) of the Bombay Land Requisition Act, 1948. The appropriate officer shall pass order under Section 9 (3), releasing the requisitioned premises and shall also pass an order under Section 9 (4) of the Act, directing that the Petitioner should be put in possession on the Petitioner giving full discharge to the State Government. The necessary orders shall be passed within a period of two months from today. Respondents Nos. 1 and 2 shall pay the costs of the Petitioner.

7. Petition allowed.


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