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Dwarkadas Jivraj Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Misc. Petn. No. 27 of 1954
Judge
Reported inAIR1955Bom110; (1954)56BOMLR968
ActsBombay Land Requisition Act, 1948 - Sections 5(1), 6(3) and 6(4)
AppellantDwarkadas Jivraj
RespondentState of Bombay
Appellant AdvocateH.S. Desai, Adv.
Respondent AdvocateR.M. Kantawala, Adv.
Excerpt:
.....section 6(3) of the act and either occupied the premises or permitted them to be occupied. ;the facts appear in the judgment. ;h. s. desai, for the petitioners. ;r. m. kantawala, for the respondent. -..........stood by itself, there can be no doubt that once an intimation of a vacancy was given to government, government could proceed to requisition the premises at any time thereafter, howsoever absurd the result may be and howsoever inconvenient to the parties concerned. but what is urged on behalf of the petitioners is that this power of requisition must be read subject to the provisions of 8. 6 (s), and in my opinion, that contention is obviously right. sub-section (3) enables a landlord to exercise his normal rights as a landlord after waiting for a period of one month from the date on which intimation of vacancy is received by government. the object of waiting obviously can only be one, viz. to enable government, if they so thought fit, to requisition the premises in the.....
Judgment:

Tendolkar, J.

1. This is a petition for an appropriate writ, direction or order in respect of an order of requisition dated 1-10-1953. Some preliminary objections have been raised on behalf of the respondent to this petition but they have not been pressed at the hearing.

2. The main ground and indeed the only ground urged before me on which the petition is based is that intimation of vacancy was received by the Accommodation Officer on 31-8-1953, and the order of requisition is not made within a month from the date of receipt of such intimation and is therefore not valid. This is a pure question of law and depends for its determination on a proper construction to be put on the provisions of Section 6(3) and (4), Bombay Land Requisition Act, 1948, which are in the following terms :

'(3) A landlord shall not, without the permission of the State Government, let, occupy, or permit to be occupied such premises before giving the intimation and for a period of one month from the date on which the intimation is received.

(4) Whether or not an Intimation under sub-section (1) is given and notwithstanding anything in Section 5, the State Government may by order in writing-

(a) requisition the premises for the purpose of the State or any other public purpose and may use or deal with the premises for any such purpose in such manner as may appear to ;t to be expedient;.... Provided that where an order is to be made under clause (a) requisitioning the premises in respect of which no intimation is given by the landlord, the State Government shall make such inquiry as It deems fit and make a declaration in the order that the premises were vacant or had become vacant, on or after the date referred to in Sub-section. (1) and such declaration shall be conclusive evidence that the premises were or had so become vacant.'

Now, when one looks at Sub-section (4) only, there is no period of limitation prescribed for the exercise of the right to requisition; and apparently therefore if this sub-section stood by itself, there can be no doubt that once an intimation of a vacancy was given to Government, Government could proceed to requisition the premises at any time thereafter, howsoever absurd the result may be and howsoever inconvenient to the parties concerned. But what is urged on behalf of the petitioners is that this power of requisition must be read subject to the provisions of 8. 6 (S), and In my opinion, that contention is obviously right. Sub-section (3) enables a landlord to exercise his normal rights as a landlord after waiting for a period of one month from the date on which intimation of vacancy is received by Government. The object of waiting obviously can only be one, viz. to enable Government, if they so thought fit, to requisition the premises in the Interval. Does it follow from this that at the end of the period of one month from the date on which intimation is received the power to requisition comes to an end?

3. It is urged that in any statute which takes away or abridges the rights of the subject, whether as regards person or property, the construction to be put upon the statute should be such as to respect the rights and not to encroach upon them and therefore it is said that if It is possible to construe Sub-section (3) and (4) read together either as conferring upon the Government unrestricted power to requisition at any time after a notice of vacancy has been received or restricting such right to a period of one month from the date of receipt of the Intimation of a vacancy, the statute should be interpreted in favour of the rights of the landlord and a limitation should be placed on the power of Government to requisition premises.

But it appears to me that there is no essential conflict between the provisions of sub-sections (3) and (4) which would make it necessary to reconcile them or to find out whether one of the subsections encroaches upon the provisions of the other. 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 dat& 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.

But where, even after the lapse of a period of one month from the date on which the Intimation is received, the premises continue to be vacant and the landlord has not exercised any rights as landlord either by entering into occupation himself or by letting out the premises to a tenant, I see no hardship involved on the landlord and no reason why Government should not exercise in respect of premises continuing to be vacant the power to requisition which is conferred upon them by Sub-section (4) without any limitation as to the period of time within which It should be exercised. In my opinion, therefore, under Sub-section (4) of Section 6 Government has the power to requisition even after the lapse of a period of one month from the date on which intimation is received provided the landlord has not exercised the rights that accrued to him under Sub-section (3) and either occupied the premises or permitted them to be occupied.

4. In the present case the petition is by a landlord and it Is plain from the correspondence annexed to the petition itself which are letters addressed by the petitioners to the Accommodation Officer that the premises continued to be vacant up to the date of the requisition order; and in my opinion, therefore, Government had the right to requisition those premises although the order of requisition is made after the lapse of a period of one month from the date of receipt of the intimation.

5. The result, therefore, is that the petition fails and the petition will be dismissed and the rule discharged with costs.

6. Rule discharged.


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