MONGIBAI HARIRAM Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an appeal filed by the petitioners against the order passed by Mr. Justice Mody in a writ petition, being Miscellaneous Petition No. 282 of 1959, filed by the petitioners, praying for a writ of mandamus under Article 226 of the Constitution, against the respondents, directing them to cancel or withdraw the order of requisition dated September 10, 1959, and the order of allotment dated September 10/12, 1959, and/or to forbear from executing or enforcing the said orders or taking any further proceedings thereunder, and for a direction, order or writ in the nature of mandamus in similar terms, as also for a writ of certiorari and/or prohibition as prayed for in prayers (c) and (d) of the petition.

(2.) THE petitioners are the Trustees in respect of the premisses in question and as such Trustees they are the owners of those premises, which are a part of the immoveable property known as Kutchi House situated at Brahmanwada Road, Matunga, Bombay. One P. S. Nambiar was a tenant in occupation of room No. 26, which are the premises in question, on the second floor of the said building, the rent being a little over Rs. 20 per month. P. S. Nambiar was in arrears of rent and electricity charges from January 1, 1956. According to the petitioners, P. S. Nambiar left the premises, unauthorisedly putting one K.A. Nambiar in possession of the said premises. On March 26, 1958, the petitioners filed a suit in the Court of Small Causes at Bombay against P. S. Nambiar and K.A. Nambiar for recovery of possession of the said' premises on three grounds: (1) That the petitioners required the said premises bona fide for their personal use and occupation; (2) that P. S. Nambiar the tenant was not living at the premises; and (3) that the tenant was in arrears of rent since January 1, 1956. The petitioners alleged that the said K.A. Nambiar deliberately evaded service of the writ of summons in that suit and the petitioners were, therefore, forced to serve him by substituted service. On August 5, 1958, an ex -parte decree was passed in that suit, whereby 'the defendant', which obviously meant the said P. S. Nambiar, was ordered to vacate the said premises by August 16, 1958. On September 30, 1958, the petitioners tried to execute the warrant of possession under that decree, but according to the petitioners, one K.N. Ramkrishnan obstructed the execution, claiming that he was in occupation of the said premises. The petitioners thereafter took out an obstructionist notice against Ramkrishnan and the same was on February 13, 1959, made absolute and Ramkrishnan was ordered to vacate and hand over possession of the premises by March 13, 1959. On the same day, that is, March 13, 1959, K.A. Nambiar filed an application in the said suit to have the ex -parte decree passed against him set aside. On March 16, 1959, that application was dismissed and against that order of dismissal K.A. Nambiar filed an appeal, which appeal was also dismissed on April 1, 1959. On April 30, 1959, according to the petitioners, they obtained possession of the said premises. in execution of the decree with the assistance of the bailiff of the Court. In para. 9 of the petition it was alleged that after obtaining possession of the said premises on or about April 30, 1959, the petitioners put some trust properties in the form of building materials and other articles therein and had allotted a portion of the said premises to the Gurkha bill collector for his residential purposes. The petitioners further alleged in the petition that they had informed the Controller of Accommodation in respect of the vacancy that had arisen in respect of the said premises on account of the execution of the decree of the Small Causes Court, by a letter despatched on May 3, 1959, under a certificate of posting from Calcutta, where the petitioners usually resided. It may be stated at this stage that the respondents by their affidavit in reply denied having received this letter at all. Thereafter the respondents issued a show cause notice dated July 11, 1959, requiring the petitioners to show cause why the said premises should not be requisitioned, under the Bombay Land Requisition Act. In answer to the show cause notice, the petitioners filed a written statement and they were also given interviews by the authorities. The Accommodation Officer thereafter by his letter dated August 17, 1959, intimated to the petitioners that therewas a suppressed vacancy of the said premises. Against that decision or intimation of the Accommodation Officer the petitioners appealed to the Secretary, Revenue Department, Government of Bombay, on August 19, 1959. It appears that there is no provision for such an appeal in the Requisition Act, but it was open to the Government of Bombay to treat the appeal as an application for revision. Pending the disposal of that application, on August 25, 1959, the petitioners gave to the Secretary, Revenue Department, Government of Bombay, a notice dated August 25, 1959, under the provisions of Section 80 of the Code of Civil Procedure, expressing their desire to file a suit against the Government in respect of the decision which was taken by the Accommodation Officer to the effect that the premises in question were a suppressed vacancy. The respondents thereafter made an order dated September 10, 1959, requisitioning the said premises under that Act. That order contained a declaration that the said premises had become vacant on April 30, 1959, and also mentioned that the premises were being requisitioned for a public purpose, viz. for housing a homeless person. The respondents also issued an allotment order in respect of those premises, which was dated September 10/12, 1959, by which these premises were alloted to the said K.A. Nambiar. Thereafter the petitioners made a mercy petition to the Minister concerned of the Government of Bombay on September 14, 1959. The Minister according to the petitioners, gave them a hearing on September 25, 1959, but that petition was rejected on September 30, 1959, On the very same day the petitioners filed the present petition, in which a rule was issued and it was that rule which was heard by Mr. Justice Mody.

(3.) MR . Gupte, the learned Counsel for the petitioners, urged three contentions before us in support of the appeal. Firstly, that the order passed by the respondents was illegal, because it was made mala fide to benefit a person who was evicted in execution of a valid decree of a competent Court; secondly, that there was no statutory vacancy in respect of the premises in question which could have been the subject -matter of requisition by the respondents; and thirdly, that on the facts of this case the premises in question were not 'premises' within the meaning of the Requisition Act.