STATE OF BOMBAY Vs. MORARJI COOVERJI

JUDGEMENT

(1.) [His Lordship after stating the facts as above, proceeded:] The vacancy referred to in the order of requisition, dated May 11, 1957, is the vacancy which occurred on January 20, 1954, when the bailiff of the Court of Small Causes completed giving possession of the whole of the said flat No. 5 to the petitioner. The said order proceeds on the footing as if no intimation of vacancy had been given. It is urged on behalf of the petitioner that the vacancy which occurred on that day was the vacancy in respect whereof due intimation had been given by the petitioner, that after the expiration of a, period of one month from the date of the receipt of such intimation the petitioner was, entitled to occupy the said premises and that he had in fact lawfully occupied the same on March 3, 1954, after the expiration of the said period of one month. It is further urged that the said vacancy having ceased, the Government could not thereafter requisition the said premises as it had purported to do.

(2.) THE learned Counsel for the petitioner relies upon the decision in Dwarkadas Jivraj v. State of Bombay' (1945) 56 Bom. L.R. 968. In that case Mr. Justice Tendolkar at page 969 observes as under: -.Where in the exercise of the rights conferred upon him by Sub -section (3) a landlord proceeds to exercise his rights as a landlord after waiting for a period of one month from the date on which intimation is received and either goes into occupation or lets the premises to a tenant, it appears to me that by that act which is lawful and expressly permitted by the Bombay Land Requisition Act, the vacancy of which intimation was given comes to an end and therefore the right of Government to requisition the premises comes to an end with the termination of the vacancy, as it has been repeatedly laid down that the existence of a vacancy is a condition precedent to the exercise of the power to requisition. Therefore, in a case in which the landlord has so exercised his right, it appears to me that as there is no vacancy the power of Government to requisition comes to an end from the date when the landlord has exercised his rights.

(3.) IT is, however, urged on behalf of the petitioner that an intimation by registered post was in fact given on November 3, 1954, that the said intimation was received by an officer authorised in that behalf by the respondent on November 8, 1954, that after the expiry of one month from the date of the receipt of such intimation the petitioner continued to occupy the said premises and that even though the occupation of the said premises by the petitioner prior thereto may not be authorised, the occupation subsequent to the expiration of the period of one month from the date of receipt of the intimation given by registered post became authorised and that from the date of such occupation' the vacancy ceased and the Government ceased to have any right thereafter to requisition the premises in respect of the vacancy which had thus lawfully ceased.