TULSIBAI MANGUMAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) [His Lordship after stating the facts as above, proceeded.] The sole contention on which the petitioners based their case regarding the invalidity of the requisition order appears in para. 8A of the petition. The petitioners have not pressed before me other grounds as appearing in the petition. Paragraph 8(a) runs as follows: The portion of Flat No. 4 sought to be requisitioned is not 'land' within the meaning of Section 4(1) and Section 5 of the Bombay Land Requisition Act, 1948. Section 5 of the said Act does not empower the Government of Bombay to requisition only a part of flat which is neither let nor intended to be let.

(2.) IN . connection with this contention of the petitioners the relevant provisions of the Bombay Land Requisition Act are as follows: Section 4(1): 'land' includes...buildings.... Section 4(2): 'landlord' means any person who is, for the time being, receiving, or entitled to receive, rent in respect of any premises...and further includes in respect of his sub -tenant a tenant who has sublet any premises;.... Section 4.(3): 'premises' means any building or part of a building let or intended to be let separately.... Section 5(1): '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 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.Section 5(2): 'Where any building or part thereof is to be requisitioned under Sub -section (1), the State Government shall make such enquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided.

(3.) MR . Dalal, however, contends that if proper emphasis is laid on the word ''wherein' in the proviso to Sub -clause (1) of Section 5 and the word 'therein' in Sub -clause (2) of Section 5, it would be found that in the case of premises let out to a tenant for exercising jurisdiction to make a requisition order, the declaration that the tenant has not actually resided must be in respect of the whole of the premises. He contends that the provisions in Section 5 of the Act do not contemplate such a declaration in respect of a part of a building. Mr. Dalai goes further and says that as regards the owner or the landlord these orders indicate the whole of the building or the total area of the 'land' in question, and the declaration that the owner or the landlord has not actually resided must be with regard to the whole of the building and/or the total area of the 'land', Mr. Dalai develops his argument by pointing out the difficulties which would arise in the case of an owner of a bungalow consisting of large number of rooms, Such an owiaer may not be using all the rooms in his bungalow for considerable length of time and may be for his usual residential purposes using a few of the rooms in such a bangalow. He says that it cannot be that in such a case the rooms which are not in every day use but are used only some times could be subject -matter of a requisition order.