URMI DEEPAK KADIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India, the Petitioner seeks a declaration that section 7(15)(d) of the Maharashtra Rent Control Act, 1999 (for short "the MRC Act") is inconsistent with the Hindu Succession Act, 1956 (for short "the HS Act) as amended from time to time. The argument is that to the extent section 7(15)(d) of the MRC Act provides protection to the family member, who was residing with the deceased tenant, at the time of his death, even though such family member is not a heir of the deceased tenant, deprives the heir of the deceased tenant of his right and status under the Hindu Succession Act, 1956.

(2.) This argument is premised on the fact that the rule of intestate succession set out by the HS Act has been given an overriding effect. Section 4 of the HS Act is giving such overriding effect. Section 4 of the HS Act is given such overriding effect over any other law in force immediately before the commencement of the HS Act and it shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in the HS Act. This overriding effect of the HS Act is taken away by section 7(15)(d) of the MRC Act. Hence, by virtue of the constitutional mandate enshrined by Article 254(1), it would be void because, the HS Act is traceable to Entry 5, List III (concurrent list) of Schedule VII of the Constitution of India. When such is the list and the entry therein, by virtue of Article 254(2) of the Constitution of India, the condition to be fulfilled is that with respect to one of the matters enumerated in the concurrent list, if the law is made by the legislature or State, then, such or any provision therein is repugnant to the provisions of earlier law made by the Parliament or existing law with respect to such matter, then, the law made by such legislature of State, if it has been reserved by the President of India for assent and has received his assent, it will prevail in that State. In the present case, there is a clear repugnancy. The HS Act is an earlier law, whereas the MRC Act is a later law. The MRC Act is made by the State legislature and contains the above noted provision. Therefore, it should be declared void and of no legal effect. More so, when there is no material on record to indicate that the assent of the President has been received in the manner laid down by the Hon'ble Supreme Court of India in the case of Kaiser I Hind Pvt. Ltd. and Anr. Vs. National Textile Corporation (Maharashtra North) Ltd. and Ors., 2002 8 SCC 182.

(3.) The Petitioner raises these issues in the backdrop of a deed of settlement dated 9th august, 1948. The Petitioner states that she is daughter of Late Ramanlal Kikabhai Amarchand. Late Kikabhai Amarchand had executed this deed of settlement dated 9th August, 1948 and Kikabhai Amarchand, Leelavati Kikabhai, Ramanlal Kikabhai and Pravin Kikabhai were Trustees under the deed of settlement. After referring to the terms of the settlement, it is stated that the Trustees purchased an immovable property at Mumbai, more particularly described in para 51 of the Writ Petition. The immovable property is referred as Amar Niwas. Late Kikabhai Amarchand expired at Mumbai on 29th June, 1958 and Mrs.Leelavati Kikabhai Amarchand also died at Mumbai on 4th February, 1983. Thereafter, new Trustees came to be appointed and out of the new Trustees, Mr. Pravin Kikabhai Dalal died at Mumbai on 2nd May, 2001. Mr. Ramanlal Kikabhai Dalal was not keeping good health and reference to the same is made in para 55, of the Writ Petition. Ramanlal Dalal executed a Will on 29th March, 2002.