STATE OF BOMBAY Vs. KULSUMBAI JAFFERALI G. PADAMSEE

JUDGEMENT

(1.) VARIOUS interesting and ingenious points arise in this appeal. That is to be expected because this is an appeal from a petition challenging a requisition order, and so long as the Requisition Act is on the statute book and so long as requisition orders are made, novel and ingenious arguments will always be advanced before the Court.

(2.) THE facts that give rise to this appeal are that the impugned requisition order was passed on October 10, 1957, under Section 6(4)(a) of the Requisition Act. The order stated that the vacancy had occurred in the month of March 1957, there was a declaration by the Government that the premises had become vacant after December 4, 1947, and the premises were being requisitioned for a public purpose, viz., for housing a Bombay State Government servant. The premises concerned are three rooms Nos. Fl, F2 and F3 on the 5th floor of a building known as Chhotu Terrace situated at 105, Colaba Road, Bombay 5. The facts with regard to these premises are that from January 1, 1947, to November 1955 these three rooms were used as a lodging house. After November 1955 they were occupied by certain persons, and it is a matter in dispute between the parties whether the occupation by these persons was as tenants or as licensees. In view of the decision we have come to on the main question argued in this appeal, it is unnecessary to resolve that dispute. It is also admitted for the purposes of this appeal that these three rooms were in fact let out before January 1, 1947, and the order was challenged by the petitioner on the ground that these three rooms did not constitute premises within the meaning of the Act. What was urged was that these premises were in fact not let out at the date of the requisition order because the contention was that they were in possession of a licensee, and it was further urged that these premises were not intended to be let because they had never been in fact let after the Ordinance came into force on December 4, 1947, or the Act came into force on April 11, 1948.

(3.) NOW , this is not a matter of first impression. The matter is concluded by the decision of the Court of Appeal in State of Bombay v. Virendra Motabhoy : AIR1951Bom175 . It is necessary carefully to consider that judgment. In that case one Mrs. Coultrup was a tenant of a flat on the first floor of a building. Her contractual tenancy was terminated on December 31, 1947, but Mrs. Coultrup continued to occupy the flat as a statutory tenant right up to January 1949. In the second week of January 1949 she left the premises and someone else went into possession, and Government then requisitioned the premises. The petitioners challenged the requisition order and Mr. Justice Bhagwati held that the order was bad because at the date when the order was passed the premises were not let and the landlord had clearly indicated that he did not intend to let the flat and therefore the premises did not fall under one or the other head of the definition. The matter came in appeal and the Court of appeal held that the word 'intended' imported a volition on the part of the landlord, but that volition was not a fluctuating or an ambulatory volition and if the volition was once expressed by the owner or the landlord quae the building, then that volition becomes an incident of the building itself, and it was not open then to the landlord by changing his intention from time to time to say that the particular building was not intended to be let. Applying this test we hold that inasmuch as the landlord had clearly expressed his volition by letting out these premises to Mrs. Coultrup who was at one time a contractual tenant, it was not open to the landlord subsequently to turn round and say that he had altered his intention and he no longer intended to let out the premises. One distinguishing feature on which great emphasis has been laid by Mr. Bhabha, and rightly so, and which has also been emphasised by the learned Judge below, is that in the case of Virendra Motabhoy there was in fact a letting after the Act came into force because, as pointed out, Mrs. Coultrup was a contractual tenant upto December 31, 1947. What is urged before us, as it was urged before the Court below, is that it is necessary that there must be a volition expressed by the landlord after the Act conies into force, and that the fact that a volition has been expressed before the coining into force of the Act is irrelevant for the purpose of determining whether the premises were intended to be let. It is, therefore, pointed out that in this case the premises were used as a lodging house from January 1, 1947, whereas the Ordinance came into force on December 4, 1947, and the Act came into force on April 11, 1948, and for the purpose of this argument there has been no letting after the rent law came into force and even if the landlord had let the premises before January 1, 1947, that letting cannot be taken into consideration for determining the volition referred to in Motabhoy's case.