RUSTOM DINSHAW Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is a petition for a writ of mandamus or a write direction, or order of the nature of mandamus under Article 226 of the Constitution, restraining the respondent, the State of Bombay, from enforcing a requisition order.

(2.) The petitioners are husband and wife, and since 1939 petitioner 1, the husband, was a tenant of flat No. 3 in Oval View, Queens Road, Bombay. In this flat petitioner 2, the wife, started keeping paying guests in one of the rooms. In 1947 in flat No. 7 in the same building became vacant, and the tenants of the flat sub-let the flat to petitioner 2, subletting being then allowed under the law. In April 1947 the petitioners with their daughter shifted to flat No. 7 and have been living there ever since. From that date onwards petitioner No. 2, the wife, expanded the business of taking, paying guests and conducted it in the whole of flat No. 3 which is on the first floor of the said building. On 23-1-1952, a show cause notice was issued calling upon the petitioners to show cause why flat No. 3 should not be requisitioned under Section 5 or Section 6 (4) (a) and (b). Thereupon an inquiry was held at which petitioner 2 appeared and produced all the documentary evidence that was in her possession. The petitioners' attorneys also had an interview with the Controller of Accommodation. The petitioners allege that the then Controller of Accommodation, Mr. Sontake, was satisfied that there was no case for requisitioning the fiat. But thereafter Mr. Sontake ceased to occupy that office; and on 23-7-1952, an order of requisition was passed which declares that the tenant of the said flat had not actually resided therein for a continuous period of six months immediately preceding the date of the order and proceeds to requisition the premises under Section 5 (1), Land Requisition Act. It is this order which is challenged on the petition; and the challenge is based mainly on the ground that Section 5, Bombay Land Requisition Act does not apply to business premises at all.

(3.) Now, turning to Section 5, Sub-section (1) thereof is in the following terms: "If in the opinion of the State Government it is necessary or expedient so to do, the State Government may by order in writing requisition any land for the purpose of the State or any other public purpose: Provided that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section." The word "land" which occurs in this sub-section has been defined in Section 4 (1) as including buildings, and therefore reading this sub-section by itself, it confers on the State Government the power to requisition any land including any building or part thereof. Out of this general power, the proviso takes out only such building or part of a building as has actually been resided in by the owner, the landlord or the tenant, as the case may be, for a continuous period of six months. Therefore, if Sub-section (1) stood by itself, there cannot be the least doubt that there was power in the State Government to requisition any premises which do not fall within the proviso and therefore to requisition business premises.