A P BANAJI Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the judgement and order dated 18th July 1996 of a learned Single Judge of this Court dismissing Writ Petition No. 639 of 1996. By the said Writ Petition, the appellant had prayed for issuance of a writ of certorari praying for quashing and/or setting aside the policy of de-hiring of the requisitioned flats. By the Writ Petition, the appellant had also prayed for issuance of a writ of mandamus directing the respondents, Union of India and Chief of Naval staff to immediately and forthwith de-hire a flat belonging to the appellant bearing flat No. 3 at the building "Cliff" Pochkhanawala Road, Worli, Mumbai (for short "the flat").

(2.) Briefly stated the facts are that in or about the year 1930, the appellants grandmother, Gulbai Banaji constructed a building by name "the Cliff" at Pochkhanawala Road, Worli, Mumbai. At the onset of world war in the year 1939, Government of India urgently required several premises in Mumbai for the officers of its Armed Forces. On 10th August 1942, the Government hired the entire building "the Cliff" from Gulbai under the Defence of India Rules,1939. Thereafter an agreement dated 15th February 1944 was entered into between the said Gulbai and the Governor General in Council, hiring the flat No. 3 on a monthly rent of Rs. 775/-. Remaining flats in the said building except the flat No. 3 which is the subject matter of this appeal were dehired and released by the Government. Before her death, Gulbai gifted the flat No. 3 to her son Firoz Banaji, the father of the present appellant. It appears that the appellants father sold the flat to one Mr.Mehrabai Anklesaria but some time in the year 1984 the appellant repurchased it from her. The appellant and his predecessors in title made several representations to the Ministry of Defence for de-hiring of the flat. However, the representations were turned down by the authorities on the ground that there was paucity of accommodation for the defence officers in Mumbai. The appellant was also informed that the Defence Ministry had formulated a de-hiring policy and since as per the policy, only the flats equivalent to 10% of the new accommodation acquired by the authorities in a year were to be de- hired during that year. That policy of de-hiring as well as the refusal of the respondents to de-hire the flat was challenged by the appellant by the writ petition. The decision of the learned single Judge dismissing the writ petition is impugned in this appeal.

(3.) Learned Counsel for the appellant submitted that the learned Single Judge erred in dismissing the writ petition. The flat was hired by the Governor General in Council under the Defence of India Rules, 1939 which was a compulsory hiring. The compulsory hiring under the Defence of India Rules 1939 was similar to the requisitioning of premises and therefore the principles laid down by the Supreme Court in its decision in H.D. Vora v. State of Maharashtra,1984 AIR(SC) 886 and in Grahak Sanstha Manch v. State of Maharashtra squarely applicable to the facts of the case. He submitted that in the aforesaid cases the Supreme Court has clearly laid down that the premises cannot be requisitioned for a period of more than 30 years and the same principle must also apply to compulsory hiring of the premises made under the Defence of India Rules, 1939. He submitted that the premises have continued to be hired by the Government since the year 1942 for a period of more than 60 years. The Government has no right to continue to hire the said flat beyond 30 years and continued hiring of the flat by the Government amounts to an unreasonable restriction on the appellants right to own and enjoy the property. He submitted that the policy of de-hiring limited to 10% of the new accommodation made available to the defence department was arbitrary and unreasonable. Till the date of the decision of the learned Single Judge only 66 flats were de-hired and the appellants flat which was at Sr. No. 183 in the list prepared by the Defence Ministry was not likely to be hired for several years taking into consideration that only about 10 flats were being de-hired every year as per the said policy. Counsel for the appellant further submitted that respondents were also not strictly adhering the flats according to the seniority according to the date of initial hiring and they had de-hired some flats out of turn. He submitted that respondents had released some flats in Marlow building out of turn in violation of their own policy of dehiring according to the seniority and the appellants flat was not being de-hired because of an unreasonable policy of de-hiring, which needs to be quashed.