NEHA CHANDRAKANT SHROFF & ANR.versusTHE STATE OF MAHARASHTRA & ORS.

           [2025] 5 S.C.R. 616 : 2025 INSC 484

            Neha Chandrakant Shroff & Anr.
                           v.
            The State of Maharashtra & Ors.
                (Civil Appeal No. 5098 of 2025)
                           08 April 2025
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                     Issue for Consideration
Issue arose as regards the order passed by the High Court,
rejecting the writ petition filed by the appellants u/Article 226 of
the Constitution praying for the possession of property given for
temporary occupation to police officials in 1940.

                            Headnotes†
Constitution of India – Art.226 – Writ jurisdiction – Exercise
of, when alternative remedy available – Writ petition by the
appellant seeking for possession of their two flats which were
permitted to be temporarily occupied by the police department
at their request to meet the requirement of housing police
officers in the year 1940 – High Court rejected the petition
holding that it was not inclined to exercise jurisdiction
u/Art.226 because there was no written order of requisition –
Correctness:
Held: High Court should have readily exercised its writ jurisdiction –
Constitutional powers vested in High Court or Supreme Court
cannot be fettered by any alternative remedy available to the party
concerned – Injustice, whenever and wherever it takes place,
should be struck down as an anathema to the rule of law and the
provisions of the Constitution – High Court was hesitant to exercise
its writ jurisdiction as it got confused on the aspect of nature of
possession – High Court found the possession to be permissive in
nature and thought fit to relegate the appellants to avail alternative
remedy of filing a suit – High Court should have kept in mind that
the year was 1940 when the country was ruled by Britishers and
was fighting hard to seek independence – At that time, department
might have persuaded the appellants/predecessors in title to part
[2025] 5 S.C.R.                                                              617

  Neha Chandrakant Shroff & Anr. v. The State of Maharashtra & Ors.


     with the possession of two flats for Police Department – However,
     it has been 84 years that the Police Department was in occupation
     and for past eighteen years even rent was not paid – If the
     appellants are asked to institute a suit would be like adding insult
     to the injury – Rule of exclusion of writ jurisdiction by availability
     of an alternative remedy is a rule of discretion and not one of
     compulsion – There can be many contingencies in which High
     Court may be justified in exercising its writ jurisdiction inspite of
     availability of an alternative remedy – Thus, the impugned judgment
     passed by the High Court set aside – Respondents to handover
     vacant and peaceful possession of both the flats to the appellants
     along with the arrears of rent. [Paras 6, 8-12]

                                 List of Acts
     Constitution of India; Right to Information Act, 2005; Maharashtra
     Land Requisition Act, 1948; Maharashtra Rent Control Act, 1999

                              List of Keywords
     Writ Petition; Exclusion of writ jurisdiction; Permissive possession;
     Recovery of possession; Housing police officials; Temporary
     occupation; Order of requisition; Possession; Constitutional
     powers; Anathema to rule of law; Writ jurisdiction; Availability of
     alternative remedy; Police department; Requirement of housing
     police officers.

                             Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5098 of 2025
     From the Judgment and Order dated 30.04.2024 of the High Court
     of Judicature at Bombay in WP No. 2135 of 2009

                         Appearances for Parties
     Advs. for the Appellants:
     Azmat Hayat Amanullah, Ms. Aishwarya Kantawala, Ms. Rebecca
     Mishra.
     Advs. for the Respondents:
     Shekhar Naphade, Sr. Adv., Shreyas Lalit, Siddharth Dharmadhikari,
     Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya
     Krishna, Adarsh Dubey.
618                                                            [2025] 5 S.C.R.

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                 Judgment / Order of the Supreme Court

                                     Order
1.     Leave granted.
2.     This appeal arises from the impugned judgment passed by the High
       Court of Judicature at Bombay dated 30th April, 2024 in Writ Petition
       No.2135 of 2009 by which the Writ Petition filed by the appellants
       herein against the State of Maharashtra and Others came to be
       rejected. The impugned judgment dated 30th April, 2024 reads thus:-
            1. In this writ petition, filed under Article 226 of the
            Constitution of India, the petitioners seek a declaration that
            the action on the part of the respondents in not releasing
            and thereafter restoring the possession of Flat Nos.11 and
            12 on the 3rd floor of the building named ‘Amar Bhavan’,
            A.R. Rangekar Marg, Opera House, Mumbai 400 007 that
            belong to the petitioners is unlawful, illegal and in violation
            of the petitioners’ fundamental rights. The petitioners
            accordingly pray that the respondents be directed to
            forthwith vacate and handover peaceful possession of the
            aforesaid premises to them.
            2. It is the case of the petitioners, as pleaded in the writ
            petition, that in or about the year 1940, the aforesaid two
            flats were permitted to be temporarily occupied by the Police
            Department at their request so as to meet the requirement
            of housing police officers to enable maintenance of the
            law and order situation. The petitioners have pleaded
            that there was no written contract executed between their
            predecessor and the Police Department. Certain amounts
            were paid by the Police Department to the predecessor on
            monthly basis and till about 31st December 2007, Rs.611/-
            per month was being paid. On 10th September 1997,
            the predecessor of the petitioners, through his Advocate
            had issued a communication to the respondents raising
            a grievance with regard to non-payment of the monthly
            amount. According to the petitioners, since they were in
            need of the aforesaid premises, a request was made to
            the respondents to return possession of the same. Since
            the same was not done, this writ petition came to be filed.
[2025] 5 S.C.R.                                                           619

  Neha Chandrakant Shroff & Anr. v. The State of Maharashtra & Ors.


           3. Dr. Sujay Kantawala, learned counsel for the petitioners
           in support of the prayers made in the writ petition referred
           to the orders passed in Writ Petition Nos.1108 of 2005, 343
           of 2005 and 344 of 2005 to contend that in the aforesaid
           writ petitions, the possession of the respective premises
           were handed over by the respondents to the concerned
           petitioners. Though this writ petition was to be heard along
           with the aforesaid writ petitions, it could not be heard when
           the said writ petitions were decided. He submits that on
           similar terms, a direction be issued to the respondents to
           handover possession of the aforesaid two flats. Without
           prejudice to the aforesaid, it was contended that the
           occupation of the respondents since the year 1940 was on
           the backdrop that the two flats had been requisitioned by the
           respondents for temporary use of the Police Department.
           Though there was no written order requisitioning these
           two flats, it was undisputed that possession of the same
           was handed over to facilitate convenience of the Police
           Department since it intended to house it’s police officers.
           Inviting attention to the information supplied to the
           petitioners under the provisions of Right to Information
           Act, 2005 (for short, “the Act of 2005”) pursuant to the
           application dated 25th June 2007, it was pointed out that
           copy of written Lease Deed was not available even with the
           respondents. Further information supplied in October, 2020
           indicated that the respondents had no record to indicate
           the period when the monthly payment towards occupying
           these flats was paid. Since the petitioners were now in
           need of the said two flats, it was obligatory on the part of
           the respondents to handover possession of the same. As
           regards applicability of the provisions of the Maharashtra
           Land Requisition Act, 1948 (for short,“Act of 1948”), as
           urged by the respondents is concerned, it was submitted
           that since the two flats were orally requisitioned in the
           year 1940, the provisions of the said Act would not apply
           retrospectively. To substantiate this contention as regards
           the entitlement to receive back possession, the learned
           counsel for the petitioners placed reliance on the decisions
           of the Supreme Court in H.D. Vora Vs. State of Maharashtra
           and Ors. (1984) 2 SCC 337; Grahak Sanstha Manch and
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       Ors. Vs. State of Maharashtra (1994) 4 SCC 192; Roy
       Estate Vs. State of Jharkhand and Ors. (2009) 12 SCC 194,
       as well as the judgment of this Court in Geeta Mangesh
       Laud and Ors. Vs. Appellate Authority and the Principal
       Secretary, General Administration Department and Ors.,
       with connected writ petitions, 2023 SCC OnLine Bom 1004.
       This decision was challenged before the Supreme Court
       unsuccessfully. It was thus urged that since possession of
       the said flats had been handed over in the year 1940 on
       account of the need of the Police Department then and
       about 84 years had elapsed since handing over of such
       possession, the petitioners were entitled to receive back
       possession of the same.
       4. Mr. Mohit Jadhav, learned Additional Government
       Pleader opposed aforesaid submissions. Inviting attention
       to the pleadings in the writ petition, it was submitted that
       in absence of any written order of requisition, it was not
       open for the petitioners to contend that the respondents had
       requisitioned the two flats in the year 1940. On the contrary,
       it was submitted that possession of the same was handed
       over voluntarily and monthly amounts were being paid
       to the predecessor of the petitioners, which was evident
       from the record. According to him, the grievance made
       in the writ petition was also with regard to non-payment
       of the monthly amounts, which would thus indicate that
       the petitioners were seeking eviction of the respondents
       without terminating their license/tenancy. Attention was
       invited to the communication dated 30th July 2012 issued
       on behalf of the petitioners raising a grievance that since
       January 2008, the monthly amounts towards occupation
       of the two flats were not being paid. The aforesaid would
       therefore indicate that there was no requisition of the said
       premises and in fact, on the basis of an oral agreement,
       the respondents were put in possession. It was further
       submitted that this Court had entertained a somewhat
       similar grievance in Writ Petition Nos.1429 of 1990 and
       1430 of 1990 (Anil Harish and Ors. Vs. Chief Secretary,
       Government of Maharashtra and Anr.). The said writ
       petitions had been allowed by the judgment dated 23rd
[2025] 5 S.C.R.                                                            621

  Neha Chandrakant Shroff & Anr. v. The State of Maharashtra & Ors.


           April 2004 and an order of eviction along with award of
           damages came to be passed. The said judgment was
           challenged before the Supreme Court and by it’s judgment
           dated 15th November 2007 (Chief Secretary, Government
           of Maharashtra and Anr. Vs. Anil Harish and Ors.) the
           appeal was allowed and the judgment of this Court was
           set aside on the ground that the remedy available to the
           petitioners therein under the Maharashtra Rent Control
           Act, 1999 ought to have been invoked especially since
           that was the statutory remedy available. The High Court in
           exercise of jurisdiction under Article 226 of the Constitution
           of India ought not to have entertained the writ petition. On
           this basis, it was urged that in the absence of any written
           order of requisition, the prayers made by the petitioners
           may not be granted and the petitioners be directed to avail
           the statutory remedy.
           5. We have heard the learned counsel for the parties at
           length and with their assistance, we have perused the
           documentary material on record. It is an admitted position
           that sometime in the year 1940, possession of Flat Nos.11
           and 12 was voluntarily handed over by the predecessor
           of the petitioners to the Police Authorities. It is further
           admitted that there is no written order requisitioning
           the aforesaid two flats for temporary use by the Police
           Authorities. The dispute however is with regard to nature of
           occupation of the Police Authorities. While the petitioners
           seek to contend that such occupation is pursuant to
           the two flats being requisitioned for use of the Police
           Authorities, the respondents contend that having paid
           monthly amounts to the predecessor of the petitioners
           and thereafter to the petitioners, the occupation of the
           Police Department is not pursuant to any requisition of
           the premises and that its possession is permissive in
           nature. The documentary material on record in the form
           of information supplied under the provisions of the Act
           of 2005 indicates that there is no written Lease Deed on
           the basis of which the Police Authorities have entered
           into possession. The documents also show that monthly
           amounts were paid regularly till December, 2007 and the
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       petitioners had made a grievance that since January,
       2008, such payments were not being made. On the
       basis of the material on record, it cannot be concluded
       that the occupation of the Police Authorities is pursuant
       to any order of requisition. There being a dispute with
       regard to the nature of their occupation, it would not be
       expedient for this Court to factually adjudicate this aspect
       and record a finding as regards the nature of occupation
       of the respondents. We thus find that there is no material
       on record to substantiate the petitioners’ claim that the
       said two flats were requisitioned on the basis of which
       the Police Authorities entered into possession.
       6. It is true that the Act of 1948 came into force after
       possession of the two flats was taken over in the year 1940.
       The same however would not have material bearing on this
       issue in the light of the fact that the nature of possession
       of the respondents cannot be stated to be pursuant to
       any order of requisition. The ratio of the decisions relied
       upon by the learned counsel for the petitioners cannot be
       applied to the facts of the present case.
       Heavy reliance was placed by the learned counsel for the
       petitioners on the orders passed in various writ petitions,
       as referred above, along with which this writ petition was
       to be heard. However, perusal of all the orders indicates
       that the parties therein had arrived at a settlement and
       had filed Consent Minutes of Order. The writ petitions
       were not adjudicated on merits but the respondents
       therein agreed to handover possession of the premises
       in question therein. Hence, on facts, the aforesaid
       adjudication cannot be taken into consideration. On the
       contrary, the learned Additional Government Pleader is
       justified in relying upon the decision of the Supreme Court
       in Chief Secretary, Government of Maharashtra Vs. Anil
       Harish and others (supra).
       7. We are not inclined to exercise jurisdiction under Article
       226 of the Constitution of India in view of the fact that
       there is no written order of requisition. Since the manner
       in which the respondents entered into possession of the
[2025] 5 S.C.R.                                                             623

     Neha Chandrakant Shroff & Anr. v. The State of Maharashtra & Ors.


            premises is disputed, liberty is granted to the petitioners
            to avail appropriate remedy as available in law to seek
            appropriate reliefs. Keeping all points raised in the writ
            petition on merits open, the same is dismissed with no
            order as to costs. Rule stands discharged.”
3.     Heard the learned counsel appearing for the appellants and Mr.
       Shreyas Lalit, the learned counsel appearing for the State of
       Maharashtra and others.
4.     Mr. Nitin Pawar, the Deputy Commissioner of Police, Office of the
       Commissioner of Police (Headquarter), Mumbai, Maharashtra is also
       personally present today in the Court. We had some dialogue with
       Mr. Pawar. According to the Officer, present before us, there are
       two families of Police Officers residing in the two flats in question. In
       fact, it has come to our notice today for the first time that the flats in
       question are not being utilized as an Office of the Police Department
       but two families are in fact residing in these two flats in question.
       The monthly rent of each flat admeasuring 600 square feet situated
       in South Bombay is Rs.700/- (Rupees Seven Hundred) per month.
5.     This is the right stage for us to look into the two orders passed by
       us dated 28.01.2025 and 03.03.2025 respectively. The order dated
       28.01.2025 and 03.03.2025 respectively read thus:-

       ORDER DATED 28.01.2025
            “1. The respondents are in occupation of two flats of the
            ownership of the petitioners herein since the year 1940. At
            the relevant point of time, there was no written document
            in the form of rent note or lease agreement or any other
            form of understanding reduced into writing. However, it is
            not in dispute that the department is occupying two flats
            as on date.
            2. It appears that up to the year 2007 a very paltry amount
            was being paid towards rent. Thereafter nothing was been
            paid till 2024. We are informed that again in 2004 some
            amount was paid.
            3. The petitioners are desperately seeking to get back
            the possession of the property, in question, which is in
            occupation of the respondents.
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          4. We are of the view that the parties should sit together
          and try to resolve the dispute. If the respondents want to
          retain the possession they must enter into an appropriate
          lease agreement providing for payment of rent determinable
          on the market value of the property. Of course this would
          be without prejudice to the rights and contentions of the
          petitioners, they propose to raise before this Court while
          assailing the impugned judgment passed of the High Court.
          5. It has been more than 80 years that the department has
          been occupying the two flats. The department can very
          easily shift to any other place of their choice and allow
          the petitioners to use their own property.
          6. We hope and trust that Mr. Shreyas Lalit, the learned
          counsel appearing for the respondents is able to persuade
          his clients to bring an end to this litigation by some equitable
          settlement.
          7. Post this matter after four weeks.”

       ORDER DATED 28.01.2025
          “1. The learned counsel appearing for the parties jointly
          submitted that talks of settlement are in progress. We are
          fully conversant with the facts of this case. We once again
          request Mr. Shreyas U. Lalit, learned counsel appearing
          for the respondents to impress upon his client to resolve
          the dispute in any circumstances.
          2. We reiterate once again that the State cannot retain
          the property for all times to come. We are informed that
          the petitioners herein have put forward three proposals
          before the State:
          (I) That the State may retain the premises by paying
          market rent as on date.
          (II) The State may either outright purchase the property; or
          (III) The State should hand over vacant and peaceful
          possession of the property.
          3. We are of the view that all the three proposals are very
          reasonable and State must consider either of the three
          very seriously.
[2025] 5 S.C.R.                                                          625

     Neha Chandrakant Shroff & Anr. v. The State of Maharashtra & Ors.


            4. We adjourn this matter for one last time, on the next
            date, if some settlement is placed on record well and good,
            otherwise we shall proceed to pass final orders.
            5. List the matter after four weeks.”
6.     The orders dated 28.01.2025 and 03.03.2025 respectively quoted
       above make the picture abundantly clear. There is no response
       worth the name at the end of the respondents to the three proposals
       referred to by us in our order dated 3.04.2025. In such circumstances,
       we need not hear the parties anymore on any other issues. We set
       aside the impugned judgment passed by the High Court and allow
       the original writ petition preferred by the appellants before the High
       Court. We grant four months’ time to the respondents from today
       to handover vacant and peaceful possession of both the flats in
       question to the appellants along with the arrears of rent accrued till
       the date of handing over of the possession of the two flats. We are
       informed that the Department has not been paying rent from 2008
       onwards. The rent shall be calculated accordingly and be paid to
       the appellants.
7.     We direct Shri Nitin Pawar, the Deputy Commissioner of Police
       who is personally present in the court to file an undertaking on oath
       stating that the Department shall hand over vacant and peaceful
       possession of the two flats in question definitely to the appellants
       within a period of four months from today. Such undertaking in the
       form of affidavit shall be filed within one week from today before the
       Registry of this Court.
8.     We are happy that we have been able to do justice with the appellants
       who have been frantically trying to get back their property (two flats)
       in question which the State occupied way back in the year 1940
       without any written order requisitioning the two flats for temporary
       use by the Police authorities or any lease deed in writing. It appears
       that the High Court was hesitant to exercise its writ jurisdiction as
       it got confused on the aspect of nature of possession. The High
       Court found the possession to be permissive in nature. In such
       circumstances, the High Court thought fit to relegate the appellants
       to avail alternative remedy of filing a suit.
9.     The High Court should have kept the year in mind i.e. 1940. This
       country was ruled by the Britishers. The country was fighting hard
       to seek independence from the Britishers. Bombay in the year
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       1940 was altogether different. At the relevant point of time, the
       Department perhaps might have persuaded the appellants or their
       predecessors in title to part with the possession of the two flats for
       the Police Department. However, it has been now 84 years that the
       Police Department has been in occupation and use of the two flats.
       Look at the conduct of the Department. We are informed that past
       eighteen years even rent has not been paid.
10. To ask the appellants to file a suit and recover the possession
    would be like adding insult to the injury. At this point of time, if the
    appellants are asked to institute a suit, we wonder how many years
    it would take by the time the litigation would come to an end if at all
    it reaches upto the highest Court of the country. These are the hard
    facts, the High Courts are expected to keep in mind in today’s times.
11. The rule of exclusion of writ jurisdiction by availability of an alternative
    remedy is a rule of discretion and not one of compulsion. There can
    be many contingencies in which the High Court may be justified in
    exercising its writ jurisdiction inspite of availability of an alternative
    remedy.
12. This is one of those cases wherein the High Court should have readily
    exercised its writ jurisdiction. The constitutional powers vested in the
    High Court or the Supreme Court cannot be fettered by any alternative
    remedy available to the party concerned. Injustice, whenever and
    wherever it takes place, should be struck down as an anathema to
    the rule of law and the provisions of the Constitution.
13. With the aforesaid, the appeal stands disposed of.
14. Pending application(s), if any, stands disposed of.

       Result of the case: Appeal disposed of.



       †
           Headnotes prepared by: Nidhi Jain