ERUCH J BAPASOLA Vs. B D MIRCHANDANI

JUDGEMENT

(1.) THIS is an appeal from the judgment of Tendolkar J. who dismissed a petition filed by the appellants for a writ against the Custodian of Evacuee Property. The petitioners purchased the property in question on 23-2-1950. One Tyabji Abdul Kayum was in occupation of flat No. 1 on the ground floor of this property. On 22-9-1950, the petitioners gave a notice to the tenant terminating his tenancy as from 31-10-1950. On 19-10-1950, the order was passed declaring Tyabji as an evacuee and on 26-10-1950, a notification was issued vesting the tenancy rights of the tenant Tyabji Abdul Kayum in the Custodian. On 23-3-1952, the petitioners went into possession of this flat. On 9-4-1952, the Custodian allotted this flat to one Ramchandani and on 2-5-1952, the petitioners filed this petition for a writ preventing the Custodian from taking possession of this flat. The learned Judge below took the view that the petitioners were not entitled to the order they asked for.

(2.) NOW, the question that arises is, what vested in the Custodian on October 26, 1950? The tenancy of Tyabji Abdul Kayum was a contractual tenancy. It was liable to be terminated by a proper notice given by the landlord and the landlord had given a proper notice on 22-9-1950. Pursuant to that notice the contractual tenancy would terminate on 31-10-1950, and therefore it seems that the only tenancy right which vested in the Custodian was the tenancy which was to last up to 31-10-1950. In other words, the Custodian was entitled to be in possession between 26-10-1950, and 31-10-1950, with all the rights that the tenant originally had. The 'contention put forward by Mr. Vakil on behalf of the Custodian is that once the tenancy right vested in the Custodian on October 26 1950, the notice given, by the landlord was of no effect and the tenancy did not terminate on 31-10-1950, but continued to vest in the Custodian. In putting forward this argument Mr. Vakil is encroaching not upon the rights of the tenant which are vested in the Custodian, but upon the rights of the landlord. Under the Transfer of Property Act a landlord has the right to terminate a contractual tenancy as provided by that Act, and unless there is something in the Administration of Evacuee Property Act which takes away that right, it is difficult to understand how the Custodian can claim to interfere with the contractual rights of the landlord. It must not be forgotten that the tenant is the evacuee and not the landlord and no rights of the landlord have vested in the Custodian. Therefore, we must be satisfied that there is some provision in the Administration of Evacuee Property Act which permits the Custodian to deprive the landlord of his right to put an end to a contractual tenancy as provided by law. It must also be borne in mind that when a property vests in the Custodian, it vests with all its incidents, and when the tenancy right vested in the Custodian on October 26 1950, it vested with this important incident that the tenancy was capable of being terminated by the landlord under the Transfer of Property Act. The Custodian could not take the property detached from its necessary incidents. He could not say, "the tenancy will vest in me but it will not be liable to be terminated by the landlord under the Transfer of Property Act. "

(3.) MR. Vakil has relied on Section 4 as giving him the right to interfere with the contractual rights of the landlord. All that Section 4 provides is that the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. Therefore if there is any provision in the Administration of Evacuee Property Act which is inconsistent with any other law. the provision in the Administration of Evacuee Property Act is to prevail. But before we hold that the Transfer of Property Act has been overridden by the Administration of Evacuee Property Act, we must be satisfied that there is some provision in the Administration of Evacuee Property Act which is inconsistent with the Transfer of Property Act, and we have looked in vain for any provision which in any way deprives the landlord of his contractual rights under the Transfer of Property Act. Then reliance is placed on Section 18 of the Act. That section has no application whatever to the facts of this case. That section deals with occupancy or tenancy rights and obviously it deals with subsisting occupancy or tenancy rights, and it provides that those rights will not be extinguished by reason of the fact that the Custodian becomes entitled to those rights. We are not dealing here with any subsisting rights; we are dealing with a tenancy which ceased to exist on 31-10-1950; and the question is whether there is anything in the Administration of Evacuee Property Act which prevents the provisions of the Transfer of Property Act taking effect by the landlord giving a notice to the tenant and terminating the tenancy. Therefore, in our opinion, it is impossible to contend that after 31-10-1950, the Custodian continued to remain a contractual tenant of the landlord.