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Smt. Swaran Kantilal Gupta Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number Writ Petition No. 1056 of 1980
Judge
Reported in(1984)86BOMLR48; 1983MhLJ893
AppellantSmt. Swaran Kantilal Gupta
RespondentState of Maharashtra
DispositionPetition dismissed
Excerpt:
.....sections 9(1), 9(2) -word 'may' in section 9(1) whether can be read as 'must'--application to release premises from requisition--consideration of application whether quasi-judicial proceeding--constitution of india, articles 226, 227.;it is difficult to read the word 'must', for the word 'may' in section 9(1) of the bombay land requisition act, 1948 section 9(1) is only an enabling provision. it is also necessary to note that the bombay land requisition act does not contemplate an application to release premises from requisition. it is, therefore, difficult to hold that the consideration of such an application is a quasi-judicial proceeding which calls for a hearing or a speaking order. it is not uncommon that a landlord makes repeated requests for release- of his property from..........of the building.2. on april 4, 1977 the flat was requisitioned for the purposes of housing a state government servant. on april 5, 1977 it was de-requisitioned. on april 6, 1977 it was re-requisitioned for the purposes of housing a central government servant. it was occupied by a central government servant between april 7, 1977 and january 13, 1979. it lay vacant between january 13, 1979 and july 26, 1979. on july 27, 1979 the flat was allotted to the accountant general of maharashtra, the 4th respondent, for the accommodation of one of his officers. it was then allotted to the 5th respondent. it is the petitioners' case that the 5th respondent inducted one vishnu mathur into the flat and did not use it himself. on october 24, 1979 the petitioners made an application for.....
Judgment:

Bharucha, J.

1. The petitioners challenge the continued requisition of flat No. 8 on the second floor of a building formerly known as Gupta Mahal, now known as Pankaj Mahal, situate at Churchgate Reclamation, Bombay 400020. The petitioners are the owners of the building.

2. On April 4, 1977 the flat was requisitioned for the purposes of housing a State Government servant. On April 5, 1977 it was de-requisitioned. On April 6, 1977 it was re-requisitioned for the purposes of housing a Central Government servant. It was occupied by a Central Government servant between April 7, 1977 and January 13, 1979. It lay vacant between January 13, 1979 and July 26, 1979. On July 27, 1979 the flat was allotted to the Accountant General of Maharashtra, the 4th respondent, for the accommodation of one of his officers. It was then allotted to the 5th respondent. It is the petitioners' case that the 5th respondent inducted one Vishnu Mathur into the flat and did not use it himself. On October 24, 1979 the petitioners made an application for derequisitioning the flat. They sent reminders thereafter. On June 30, 1980 the petitioners were informed that their request for de-requisition of the flat could not be granted.

3. On September 15, 1980 this petition was filed. Having regard to the only point urged before me by Mr. Gursahani, learned Counsel for the petitioners, the subsequent events lose their relevance.

4. It may only be mentioned that the petitioners had filed in respect of the continued requisition of the flat a previous writ petition, being Miscellaneous Petition No. 189 of 1979, which was dismissed in limine on February 1, 1979. An appeal from the dismissal order was rejected.

5. Mr. Gursahani has, as stated above, pressed only one of the contentions raised in the petition. In his submission, the order dated June 30, 1980 refusing to de-requisition the flat is bad in law inasmuch as it has been passed without affording to the petitioners the opportunity of a hearing and because it is not a speaking order but a bald statement of refusal. Mr. Gursahani placed great stress on a judgment of a Division Bench of the Gujarat High Court. In Bhaishankar v. State : AIR1973Guj268 , the Court held that the word 'may' in the context of Section 9(1) of the Bombay Land Requisition Act, 1948, had to be read as 'must' so that the Government would be bound to release the requisitioned premises

if the occasion so demanded justice being done and the necessity of the occasion justified the exercise of the power. The power in such circumstances would be a power coupled with the duty to exercise their power with restraint and after properly balancing the needs of the public purpose on the one hand and the fundamental right of the petitioner to occupy his own property.

The whole object of Section 9(1) was to confer power on the Government to sec that it was exercised in a just manner by compliance with the needs of the public purpose on the one hand as against the needs of the subject. Such an interpretation of the equal judicial discretion to release the requisitioned premises when the necessity arose would alone make the entire scheme a rational scheme so as to satisfy the rationality test falling under Article 14 and 19(1). Such a function being a quasi-judicial function had to be exercised by passing a speaking order so that the reasons could be scrutinised in the writ jurisdiction. A bald conclusion that the petitioners' request for release could not be accepted had to be struck down.

6. With great respect to the Division Bench of the Gujarat High Court, I find it difficult to agree. I find it difficult to read the word 'must' for the word 'may' in Section 9(1). If one were to read the word 'must' therein, one would have to be told under what circumstances it becomes imperative for the State to release premises from requisition. As it is, the provision would say only this: The State Government must at any time release from requisition any premises requisitioned under the Act. Further, Sub-section (2) may be contrasted with Sub-section (1). It provides the circumstances in which the State Government 'shall' release premises from requisition. Sub-section (1) is, therefore, only an enabling provision. It is also necessary to note that the Act, does not contemplate an application to release premises from requisition. It is, therefore, difficult to hold that the consideration of such an application is a quasi-judicial proceeding which calls for a hearing or a speaking order. It is not uncommon that a landlord makes repeated requests for release of his property from requisition. It would be imposing far too great a burden upon the authority to expect it to deal with each such application in a quasi-judicial manner, hear the applicant and deliver a reasoned order.

7. The petitioners' only contention fails. The petition is dismissed but there shall be no order as to costs. Rule discharged.


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