SWARAN KANTILAL GUPTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioners challenge the continued requisition of flat No. 8 on the 2nd 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. On 4th April 1977 the flat was requisitioned for the purposes of housing a State Government servant. On 5th April 1977 it was derequisitioned. On 6th April 1977 it was requisitioned for the purposes of housing a Central Government servant. It was occupied by a Central Government servant between 7th April, 1977 and 13th January, 1979. It lay vacant between 13th January 1979 and 26th July 1979. On 27th July, 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 24th October, 1979 the petitioners made an application for de-requisitioning the flat. They sent reminders thereafter. On 30th June, 1980 the petitioners were informed that their request for de-requisition of the flat could not be granted.

(2.) On 15th September, 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. 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 1st February 1979. An appeal from the dismissal order was rejected.

(3.) Mr. Gursahani has, as stated above, pressed only one of the contentions raised in the petition. In his submission, the order dated 30th Jane, 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, AIR 1973 Gujarat 268, 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 statutory power on the Government to see 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 quasi-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 Articles 14 and 19 (1). Such a function being a quasi-judical 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.