STATE OF BOMBAY Vs. M.C. MENON

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Coyajee by which he held that the Accommodation Officer had no jurisdiction to pass the requisition order which was impugned by the petitioner. It is sufficient to state a very few facts in order to decide the two contentions that arise in this appeal.

(2.) ONE Nair was a monthly tenant of the premises, which is a flat on the first floor of a building at Hormusji Adenwalla Road, Matunga, and it appears that in January 1949 this Nair started a commercial institution in one of the rooms of this flat. On September 22, 1955, Nair assigned this business to the petitioner, and the deed of assignment mentions Rs. 601 as consideration paid by Menon, Rs. 400 being the price of furniture and Rs. 201 being the price for the goodwill of the business. The order of requisition was passed on April 22, 1957, and it recites that on an enquiry, it was found that the premises had become vacant in the month of September 1955 and the order of requisition is passed in exercise of the powers conferred by Clause (a) of Sub -section (4) of Section 6 of the Bombay Land Requisition Act, and there is a declaration that the premises had become vacant -after December 4, 1947. Mr. Justice Coyajee took the view that in view of the assignment in favour of the petitioner, there was in law no vacancy and, therefore, the State Government had no jurisdiction to pass this order. The learned Judge also took the view that on a true construction of the provisions of the Requisition Act, the legal effect of the assignment was that there was no vacancy, and these two conclusions arrived at by the learned Judge have been challenged before us by the Advocate General. Section 6(4)(a) makes the declaration of vacancy conclusive evidence that the premises were or had so become vacant. The question that arises in limine is whether it is competent to this Court to go behind that declaration. If it is not so competent, no further question can arise.

(3.) NOW , we turn to the second contention, although it does not strictly arise but as the matter has been considered by the learned Judge and as the matter is of some importance and as the Advocate General states that the State wants guidance on this question, we have been persuaded to go into that matter also: Assuming it was open to the Court to consider the legal requirement of a vacancy, would the facts here established constitute a vacancy in law? Now, for this purpose we will assume that the assignment of September 22, 1955, is a valid and legal assignment. If it is legal and valid, does the fact that the petitioner is an assignee under a valid assignment bring about a situation in law by which there is no. vacancy which would attract the powers of Government to make a requisition order? It is difficult to understand how, with very great respect to the learned Judge, it is possible to take the view on a plain reading of the relevant provisions of the section that an assignment does not create a vacancy. The Explanation to Section 6 provides: For the purposes of this section, -Premises which are in the occupation of the landlord, the tenant or the sub -tenant, as the case may be, shall be deemed to be or become vacant when such landlord ceases to be in occupation or when such tenant or sub -tenant ceases to be in occupation upon termination of his tenancy, eviction, assignment, or transfer in any other manner of his interest in the premises or otherwise, notwithstanding any instrument or occupation by any other person prior to the date when such landlord, tenant or sub -tenant so ceases to be in occupation. Therefore, according to the plain and clear meaning of this Explanation, when the tenant Mr. Nair executed the deed of assignment on September 22, 1955, and assigned the premises to the petitioner, there was a vacancy within the meaning of this Explanation. Whether in fact there was a vacancy or not is irrelevant, because the Explanation introduces a legal fiction and for the purposes of the Requisition Act, on an assignment by a tenant there is a vacancy although the assignee may be in occupation of the premises.