STATE OF MAHARASHTRA Vs. VIRENDRA MOTABHOY

JUDGEMENT

(1.) THIS is an appeal from a judgment and order of Bhagwati J. by which he directed the issue of a writ of certiorari against the State of Bombay and set aside a requisitioning order made by Government.

(2.) THE petitioners purchased a property called Motabhoy Mansion situated on Churchgate Reclamation towards the end of 1943, and one Mrs. Coultrup was a tenant of a flat on the first floor of that building. On 31-10-1947, the petitioners gave her a notice terminating her tenancy at the end of the next two months and the tenancy came to an end on 31-12-1947. But Mrs. Coultrup continued to occupy the flat as a statutory tenant right up to January 1949. In or about the second week of January 1949 she left the premises and one Kundanmal Mahatani went into possession. Government requested the petitioners to accept Mahatani as their tenant in place of Mrs. Coultrup because they said Mrs. Coultrup had exchanged this flat with Mahatam's flat in Karachi. The petitioners were not prepared to accept this arrangement whereupon Government issued an order under Section 6 (4), Bombay Land Requisition Act, 1948, requisitioning these premises and directing the petitioners to let these premises to Mahatani. It is this order that is being challenged.

(3.) NOW, in order to understand what the rival contentions of the parties are and also the judgment of the learned Judge below, it is necessary to look at the scheme of the Requisitioning Act which is Act XXXIII [33] of 1948. By Section 2 the Act is extended to the areas specified in the schedule to the Act and in the schedule the city of Bombay, Bombay Suburban District and other districts are mentioned, and the Act came into force on 11-4-1948. Then by Sub-section (2) of Section 2 the Provincial Government have been given the power to extend any or all of the provisions of the Act to any other area by notification in the Official Gazette. Section 4 deals with the definitions and I shall deal with the material definitions presently. Section 6 deals with the power of Government to requisition land. We are not concerned with that section in this case. Then we come to Section 6 which is a material section, and that section deals with requisition of vacant premises. I may point out that there is a drafting error in Section 6 (1) because it refers to permises situated in the area specified by the Provincial Government by notification in the Official Gazette, and it does not refer to the areas specified by the Act itself under Section 2 (1 ). But it is clear that the object of the Act was to apply Section 6 both to areas covered by Section 2 (1) and areas covered by Section 2 (2 ). The error arises because this Act took the place of an earlier Ordinance and under that Ordinance the Ordinance could only be applied to the areas specified in the Official Gazette, whereas the scheme of Section 2 of the Act is different. Now, under Section 6 (1) an obligation is cast upon the landlord to give intimation with regard to vacancies to an officer authorised in that behalf by the Provincial Government, and that obligation is cast only with regard to premises as defined in the Act and premises which are in the area specified in the Act, and that obligation arises when these premises become vacant. These premises may be vacant at the date when the Act comes into force, or they may become vacant subsequently and that vacancy may come about by reason of the landlord, the tenant or the sub-tenant, as the case may be, ceasing to occupy the premises, or they may become vacant by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other purpose. Obviously, a premises which is newly constructed cannot become vacant and in order to get over this difficulty an explanation is appended to this section by which premises newly erected or reconstructed shall be deemed to be or become vacant until they are first occupied after such erection or construction. It is not with regard to every building that under Section 6 (1) there is an obligation upon the landlord to give intimation of a vacancy to the Provincial Government. It is only with regard to those buildings which fall in the category of premises, and "premises" is defined by Section 4 (3) as "any building or part of a building let or intended to be let separately. " Therefore it is only those buildings or parts of buildings which are let or which are intended to be let that constitute premises and in respect of which an obligation is cast upon the landlord when such premises become vacant. Then under Section 6 (2) the time within which intimation has to be given by the landlord is laid down. He has got to give the intimation within one month in the case of premises which were vacant at the date when the Act came into force and in other cases within seven days of the premises becoming vacant. Then Section 6 (3) casts a disability upon the landlord, and that is that he cannot let, occupy or permit to be occupied premises which have become vacant before giving the intimation and for a period of one month from the date that intimation was received. After the expiry of that one month the landlord would have the right to make such use of the premises as he thinks fit. Then we come to Section 6 (4) which confers upon the Government the power to issue a requisitioning order, and that sub-section provides :