Eight Decade Old Property Dispute Comes to an End in Mumbai

INTRODUCTION:

In May 2023, a 93-year-old woman’s eight-decade-long property battle finally came to an end when, the Hon’ble Bombay High Court, through its Divisional Bench comprising of Justices RD Dhanuka and MM Sathaye, ordered the Maharashtra Government to give her two flats in south Mumbai.  The flats are situated on the first floor of Ruby Mansion in south Mumbai and measure about 500 square feet and 600 square feet.

BACKGROUND OF THE CASE:

In accordance with the Defense of India Act of 1942, which permitted the British authorities to seize private property, the structure was requisitioned on March 28, 1942. Even after their de-requisition in 1946, the flats were not transferred to their original owners (Alice D’Souza) and were still occupied by the legal heirs of a former government official. The Hon’ble Court observed that the properties were occupied by the legal heirs of DS Laud, who was inducted into the premises in the 1940s under the requisition order. DS Laud served as the government officer in the civil services department at the time.

Three petitions against one another were submitted by both sides in this case. The Bombay Municipality had notified the property’s owner before the independence that two apartments would be kept for municipal use. On July 17, 1946, the Bombay Governor, acting under the Defense of India Rules, had, however, directed the owner to lease the property to DS Laud, a government official. The family kept living in the flats even after the Bombay collector ordered the request to be lifted.

LEGAL CONTENTIONS OF THE RESPONDENT (OWNER):

The respondents had a very simple and straight-forward argument for their legal suit and brought to the notice of the Bench that despite the de-requisition orders passed in July 1946, the flats were never handed back to the owner (respondents). In her plea, D’ Souza requested that the Maharashtra government and the Collector of Mumbai to execute the de-requisition orders of July 1946 and return her the ownership of her properties.

According to the plea, the owners of the other apartments in the complex were given back possession. The bench stated in its ruling that the de-requisition was incomplete as D’ Souza, the owner, was never given actual control of the property.

THE TIMELINE AND THE RULING:

The court observed that it was a matter of record that the owner was not given ownership of the property in spite of this ruling. The Advocate of Laud refused to give the owner (respondent) the ownership of the property in letters dated April 8, 1952, March 24, 1952, and May 2, 1952. The first letter, dated April 8, 1952, acknowledged that Laud has been occupying the aforementioned properties since 1944 and that they have been placed under requisition.

Eventually, on May 8, 1987, the owner sent Laud a notification asking for the requisition of the aforementioned buildings to be lifted. The owner filed writ petitions between 1987 and 1991, but they were withdrawn for an unknown cause.

Later, new legal action was initiated in 2009 when Mangesh D. Laud, the legal heir of DS Laud, received a notice under Section 8C (2) of the Bombay Land Requisition Act, later renamed the Maharashtra Land Requisition Act, requesting a hearing regarding his occupancy of the premises.

Following an extensive hearing, the Controller of Accommodations (hereinafter COA) ordered Laud to leave the property within 30 days of receiving the order and turn over the vacant possession to the State Government.

The COA concluded that the papers Laud had relied upon did not prove tenancy and that, following retirement or the death of the government servant (allottee), government employees or their legal heirs are not permitted to possess requisitioned property. Laud contested this ruling, but the court ruled in D’ Souza’s favour.

The Divisional Bench of Justices RD Dhanuka and MM Sathaye directed the government to take possession of the flats and hand them over to D’ Souza within eight weeks.

LEGAL OPINIONS AND ANALYSIS:

In the case of Mohan Agarwal v. Union of India & Ors., AIR 1979 All 170,  the Full Bench of Hon’ble Allahabad High Court on 22nd April 1978, held that the Bengal Army Regulation, 1836, being made under a Constitution Act ( u/s 43 Government of India Act 1833) would continue to be the law in force in India even after enforcement of the British Statutes (Application to India) Repeal Act 1960 because the law made under a Constitutional Act survives till it is expressly repealed.

The same was reiterated in the judgement of the Hon’ble Delhi High Court in the case 1992 of Shital Parshad Jain v. Union of India & Ors. where a statute was held to be in existence as it was never repealed at the first instance.

In the present case, since there was an explicit order of de-requisition of all the properties, the properties should have been de-requisitioned and the rules under the Defense of India Act, 1942 should have been withdrawn. The afore-mentioned statute gave the British the authority to seize private property, and any explicit order had the force to prevent the rules to be annulled or prevented from execution. Thus, the order of July 1946 which ordered the de-requisition of the disputed property had the force to prevent the earlier rules and therefore should have been complied with then. The fact that the appellants (heirs of DS Laud), did not evict the disputed property was an infringement of the order of 1946 and therefore the Judgement went in the favour of the respondents.

CONCLUSION:

To conclude, it might be difficult and a test of patience to wait for justice, but it is important to remember that waiting does not make pursuing justice any less worthwhile. The parties are getting closer to a settlement and the return of what is justly theirs with every step, no matter how delayed. It is best to focus one’s energies on making the most of the delays by obtaining more proof, bolstering their case, and being ready for the inevitable day of reckoning rather than allowing annoyance or impatience to cloud judgement. Though it might not arrive quickly, justice will eventually arrive, and because of their patience along the way, the pleasure of its coming will be much more poignant.

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.

This article has been assisted by Kush Shanker, a 2nd-year law student pursuing B.B.A.LL.B. (Hons.) from Maharashtra National Law University, Aurangabad.