ARDESHIR P BANAJI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution takes exception to the policy framed by the Ministry of Defence and seeks a mandatory direction to de-hire and/or release the petitioners flat hired by the defence in the year 1942. Briefly the facts are that in or about 1930 the petitioners grandmother one Gulbai B. Banaji constructed a building by name "the Cliff" at Pochkhanwala Road, Worli, Mumbai. In 1939 World-War II began and due to the war Government urgently required premises in Mumbai for the officers of the countrys armed forces. On 10th August, 1942, the Government hired the entire building through Gulbai under the Defence of India Rules, 1939. Thereafter at the request of the then Defence Ministry, an agreement dated 12th February, 1944 was entered into between the said Gulbai and the Governor-General-in-Council whereunder the building was hired by the Governor-General-in-Council for war purposes on a rent of Rs. 775/- per month. It seems that after the war all the flats in the said building except flat No. 3 which is the subject matter of the present petition, were released by the Government, even though there is no record as to exactly when the other flats were released. Before her death, Gulb gifted flat No. 3 to her only son Phiroz Banaji who happens to be the father of the petitioner. It seems that the petitioners father sold the flat to one Meharbai Anklesaria. Sometime in 1984, the petitioner re-purchased the flat from the said Anklesaria. It is common ground that the petitioner as well as his predecessors-in-title made several representations to the Ministry of Defence for de-hiring the flat. However, the representations were turned down by the authorities on the ground that there is paucity of accommodation for the defence officers in Mumbai. It was also stated in the reply by the authorities that the Defence Ministry has formulated a de-hiring policy and since as per the policy only 10% flats of the new accommodation acquired by the authorities are to be de-hired, petitioners request for de-hiring cannot be acceded. Aggrieved by this, the petitioner has filed the present petition.

(2.) IT is the case of the petitioner that the flat in question was hired for war purposes in the year 1942 i. e. during World-War II, which is long over. Hence the purpose for which the said flat was hired is non-existent and is in fact not existing since the year 1945. It is the grievance of the petitioner that despite this, even after fifty four years the defence authorities are refusing to de-hire the flat. It is contended that Government cannot retain possession of premises for an unreasonably long period of time. It is also contended that it is bounden duty of the Government to de-hire the flat since such hiring cannot be continued indefinitely. In support of these contentions heavy reliance is placed on the judgment of the Supreme Court in (H. D. Vora v. State of Maharashtra) reported in A. I. R. 1984 S. C. 866 : 1988 (2) Bom. C. R. 239 and (Grahak Sanstha Manch v. State of Maharashtra) reported in J. T. 1994 (3) S. C. 474 : 1995 (1) Bom. C. R. 295. It is contended that the continuance of hiring of the flat after 30 years is clearly unreasonable and unfair. It is also contended that the policy formulated for de-hiring of the flats is arbitrary and unreasonable. It is pointed out in that behalf that till today only 66 flats have been de-hired and the petitioners flat which is at Serial No. 183 in the list prepared by the Defence Ministry is not likely to be de-hired for a long tome. It is also alleged that the respondents are not strictly adhering to their policy and that they are de-hiring the flats out of turn. It is alleged that the respondents have released the flats in "marlow" building out of turn in violation of their own policy.

(3.) IN contesting the petition, the respondents have filed counter affidavit of Mr. R. P. Singh, Defence Estate Officer. It is averred by the respondents that the petitioner cannot claim de-hiring of the flat as a matter of right as the premises are governed by the Bombay Rent Act. It is contended that the relationship between the parties is that of the landlord and the tenant and as such a writ petition under Article 226 is not maintainable. It is pointed out that this position was accepted by the parties. In that connection, reference is made to the standard rent application filed by the petitioners father in the year 1996 in Small Causes Court, Mumbai. It is also stated that the administration policy regarding hiring and de-hiring is meant for internal consumption of the department and the same is not at all designed to confer any right on the owners of the property. It is stated that the policy is framed to provide broad parameters for guidance of the employees of the respondents dealing with the de-hiring of the property. It is pointed out that according to the policy 10% of the houses inducted into service by new construction or new hiring became available in the seniority list prepared by the Ministry of Defence in a chronological order. It is denied by the respondents that flats were de-hired out of turn. It is pointed out that only in few exceptional cases priority was given to certain property owners. It is also pointed out that flats in "marlow" building were hired on 1st October, 1941 and stood at serial Nos. 49 to 59 in the seniority list and were de-hired by various deeds according to de-hiring policy.