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P.R. Nayak Vs. Bejen Dadiba Bharucha - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 102 of 1950
Judge
Reported inAIR1951Bom406; (1951)53BOMLR654
ActsAdministration of Evacuee Property Act (1950) - Sections 4, 12, 12(1), 12(2), 12(3), 28 and 46; ;Specific Relief Act - Sections 45; Constitution of India - Article 226
AppellantP.R. Nayak
RespondentBejen Dadiba Bharucha
Appellant AdvocateH.M. Seervai and ;R.K. Dadachanji, Advs.
Respondent AdvocateMurzban J. Mistree, ;N.A. Palkhivala, ;P.N. Bhagwati, ;K.H. Bhabha and ;H.S. Engineer, Advs.
DispositionAppeal dismissed
Excerpt:
.....8(4), 4, 10(1) - evacuee property--lease of property prior to august 14, 1947--determination of lease--custodian of evacuee property--power to determine lease and demand possession of leased premises--powers of custodian as specified in act--writ of mandamus--power of high court to grant.;in 1943 a cinema theatre in bombay was leased by its owner to the petitioner for a period of five years, one of the conditions of the lease being that if the lease was not terminated by a written notice at the end of the period, the petitioner was to continue as a monthly tenant. the period of the lease expired in 1948, and the petitioner continued as a monthly tenant. in 1949 the theatre was declared to be evacuee property. shortly afterwards, the custodian of evacuee property called upon the..........term expired on 30th september 1948. on 7th september 1949, the edward theatre was declared to be evacuee property by the custodian of the evacuee property. on 10th september 1949 the custodian called upon the respondent, who had by then become the sole lessee of the lease (the right, title and interest of his partner having been assigned to him) to pay the rent to him as the custodian of the property, on 3lst may 1950, the custodian served a notice upon the respondent terminating his tenancy at the end of one month, viz. 30th june 1950. thereupon the respondent filed a petition in this court for an order under section 45, specific relief act, requiring the custodian to forbear from demanding surrender of possession of the edward theatre. this petition came on before shah j. and the.....
Judgment:

Chagla, C.J.

1.. One Ebrahim Yusuf Gardee let out the Edward Theatre on 5th May 1948, to a partnership consisting of the respondent and one Munehershaw B. Billimoria. The term of the lease was five years and that term expired on 30th September 1948. On 7th September 1949, the Edward Theatre was declared to be evacuee property by the Custodian of the Evacuee Property. On 10th September 1949 the Custodian called upon the respondent, who had by then become the sole lessee of the lease (the right, title and interest of his partner having been assigned to him) to pay the rent to him as the Custodian of the property, On 3lst May 1950, the Custodian served a notice upon the respondent terminating his tenancy at the end of one month, viz. 30th June 1950. Thereupon the respondent filed a petition in this Court for an order under Section 45, Specific Relief Act, requiring the Custodian to forbear from demanding surrender of possession of the Edward Theatre. This petition came on before Shah J. and the learned Judge granted the relief sought by the petition. From that order the Custodian has come in appeal before us.

2. The first contention that was urged by Mr. Seervai, on behalf of the Custodian, was that the power to take possession of the Edward Theatre was conferred upon the Custodian under Section 12 of the Administration of Evacuee Property Act. Now when we turn to that section we find that it deals with the power of the Custodian to vary or cancel leases or allotments of evacuee property ; but the section in terms says that the Custodian may cancel any allotment or terminate any lease or agreement under which any evacuee property is held or occupied by any person where such allotment or lease was granted after 14th August 1947. Therefore, it is clear that under this section the power conferred upon the Custodian cannot be exercised with regard to a lease granted or agreement made prior to 14th August 1947. Therefore, if in this case we find that the respondent held the property under a lease granted in his favour prior to 14th August 1947, the Custodian would not be in a position to exercise the power conferred upon him under this section.

3. When we turn to the lease, which is for a term of five years, we find that there is a provision under Clause 28 thereof for continuation of the lease. Clause 28 provides that if prior to the expiration of the term two calendar months' notice is not given by either the lessor or the lessee the parties shall be deemed to have intended to continue the use and occupation of the premises let by the lease on a tenancy running from month to month, and the tenancy shall be subject to all the terms and conditions of the lease which are not inconsistent with such monthly tenancy and the monthly tenancy shall be terminable by one month's notice. Therefore, it is clear that under Clause 28 on the expiry of the term of five years the lease would not terminate by influx of time. The lease would continue thereafter on the same terms and conditions with only this difference that the subsequent tenancy which would come into existence would not be for any fixed period but would be tenancy from month to month. Therefore if the respondent continued on the premises after 30th September 1948, when the five years term fixed by the lease expired, he continued as a monthly tenant under this very lease which terminated on 30th September 1948. In any view of the case, the tenancy of the respondent would be attributable to an agreement which was arrived at on 5th May 1943, and the terms of that agreement would have to be found in the lease which was executed on 5th May 1943. If that be the true position, then it is clear that the tenancy of the respondent was not under a lease or agreementwhich was granted or entered is to after 14th August 1947. If that be the true position, then it would not be competent to the Custodian to cancel the lease under Section 12 nor to take possession of the premises under Sub-section (3) of that section.

4. Now I may point out that if the Custodian is entitled to cancel the lease under Sub-section (1), power is given to him under the following sub-section to demand surrender of possession of such property to the Custodian or any other person duly authorised by him in that behalf ; and if the person whose lease had been cancelled under Sub-section (1) fails to surrender possession to the Custodian on demand as provided in Sub-section (2), the Custodian may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property in the manner provided in Section 9. I may also point out that under Sub-section (1) the power to vary or cancel leases has been conferred upon the Custodian notwithstanding anything contained in any other law for the time being in force. Therefore, when the Custodian acts within the ambit of Section 12 and cancels a lease, it is not incumbent upon him, if possession is demanded and not surrendered, to have recourse to law. It is not necessary for him to file a suit for ejectment and to eject the occupant of the property the lease whereof he has terminated ; but he can act under Sub-sections (2) and (3) and take possession of the property. It is unnecessary to decide what are the powers of the Custodian under Section 12 ; but for the purposes of this appeal we are assuming that these are his powers.

5. Now it is urged by Mr. Seervai that looking at the petition it was not the petitioner's case that on the expiry of the term of the lease he continued as a monthly tenant under Clause 28 on the same terms and conditions as contained in the lease. It is pointed out that in para. 4 of the petition the petitioner referred to an agreement arrived at between him and Gardee on July 5, 1948, and according to Mr. Seervai the petitioner's case was that his tenancy was under this agreement of July 5, 1948, and not under the lease of May 5, 1943. Therefore, Mr. Seervai contends that if the agreement was of July 5, 1948, the Custodian bad the power to terminate the lease under Section 12. Now the Custodian in his affidavit in reply did not admit that there was any such agreement of July 5, 1948, as contended by the respondent, and at the hearing the respondent gave up his case that there was any such agreement dated July 5, 1948, as relied upon by him in the petition. He never made any attempt to prove the agreement and in fact the agreement is not proved. Therefore, as far as the record stands we must assume that no agreement of July 5, 1948, has been proved. It should also be pointed out that in para 11 of the petition the petitioner did clearly submit that the tenancy of the petitioner having come into existence priorto August 14, 1947, the Custodian was not entitled to terminate the said tenancy as he purported to do by his notice dated May 31, 1950. Therefore, clearly his case in the petition was that the Custodian was not entitled to exercise the power conferred upon him under Section 12 inasmuch as the tenancy of the respondent had come into existence prior to August 14, 1947. Therefore, it cannot be stated that the respondent did not come to Court with the case which is now being urged on his behalf, nor can it be contended that the Custodian had any power to cancel the lease under Section 12, because in terms the contention is taken in paragraph 11 of the petition, the learned Judge has dealt with that contention find has come to a conclusion in favour of the petitioner.

6. Mr. Seervai's next contention is that independently of Section 12 the Custodian has the power to take possession of the property the lease whereof he has terminated. In other words, Mr. Seervai's contention is that even if the lease may be of a period antecedent to August 14, 1947, if the Custodian terminates that lease in exercise of his general powers of custody and management of evacuee property, it is competent to him to take possession of the property if he has terminated the lease. In other words, Mr. Seervai's contention is that although Section 12 in terms restricts the power of the Custodian to terminate the leases and take possession by summary powers given to him with regard only to leases or agreements entered into after August 14, 1947, a similar power is to be found in the other provisions of the statute. We will presently examine these other provisions, but I may point out that it would be contrary to all canons of construction to assume that where the Legislature has dealt with a specific topic and has conferred specific powers and has put certain limitations on those powers it can be contended that the Legislature has in another part of the same statute given similar powers on a wider scale and without the limitations imposed in the specific section which dealt with that power.

7. Mr. Seervai has first relied upon Section 8(4) of the Act, which provides that where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in that behalf. This section thus gives power to the Custodian to demand possession if any evacuee property is in possession of any person and Section 9 gives power to the Custodian to take possession of such property if possession is not surrendered to him on demand. Now the question that arises is what is the true interpretation of Section 8(4) and whether it applies to the facts of this case. Mr. Seervai's argument, putting it briefly, is this: He says that only the lessor's interest was vested in himwhen the Edward Theatre was declared evacuee property on September 7, 1949; but when the Custodian gave notice to quit and when that notice expired on June 30, 1950, the tenancy of the respondent came to an end and therefore the tenancy rights which had not so far vested in the Custodian reverted to him as they would have reverted to the lessor. Therefore, according to Mr. Seervai on June 30, 1950, in him was vested all the rights of the lessor and the lessee. Therefore, contends Mr. Seervai, if the respondent continued in possession of the property after 30-6-1950, his possession would be deemed to be one on behalf of the Custodian, and under Section 8(4) it would be competent to the Custodian to take possession from the respondent who was merely holding the property on his behalf. Now it is clear that Section 8(4) deals with cases where the person is in possession of the property as a trespasser, where he has no title, nor is he in possession of the property under cover of any title. The scheme of the Act seems to be fairly clear. Reading Section 8(4) and Section 12 together what the Legislature intended was to save leases and agreements entered into prior to 14-8-1947. With regard to the lease and agreements entered into subsequent to 14-8-1947, very wide powers were given to the Custodian to cancel those leases and agreements and to enter in to possession forthwith. Summary power of possession was also given to the Custodian with regard to persons who might be in possession of evacuee property without title or without being there under cover of title. Now Mr. Seervai says that on the expiry of the notice to quit the respondent became a trespasser and he would fall within the ambit of Section 8(4). Now it cannot be stated of the respondent that he was in possession of this property as a trespasser as that expression is ordinarily understood. He entered into possession of the property under a proper title, and even assuming that the tenancy was properly terminated, he continued to remain in possession of the property under cover of a title and asserting the title in himself. Section 8(4) only deals with those cases where the possession of the person referred to therein is unlawful from its very inception, and, therefore, when the property vests in the Custodian he cannot allege any prior title in himself nor can he contend that he is in pos session of the property under cover of any title. Now it is urged by Mr. Seervai that even assuming that that is the position, it is for the Custodian to decide and determine whether the respondent is in unauthorised possession of the property or he is under a title or under cover of a title to protect his possession. Mr. Seervai says that once the Custodian has decided that and has taken action to take possession of the property, the Court cannot interfere. In support of this contention reliance is placed on Section 28 and Section 46 of the Act which make the orders of the Custodianfinal and not subject to question by the civil Courts. Now we have had occasion to point out that these two sections do not in any way affect the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. The respondent is asking us to issue in his favour a writ of mandamus, and if he is entitled to that writ, then neither Section 28 nor Section 46 can impair or restrict the power of the High Court to issue such a writ. The question is whether under the circumstances of the case the respondent is entitled to such a writ. With regard to the other argument of Mr. Seervai that the Custodian having decided that the respondent is in unauthorised possession that decision is final and the Court cannot go behind that decision even on an application for a writ of mandamus, that contention is obviously fallacious. When a writ of mandamus is asked for, the first question that the Court has to determine is whether there is any statutory obligation upon the officer concerned, and the next question is whether the officer has failed to discharge that obligation. It would indeed be a starting proposition to suggest that it is left to the officer to determine for himself what his obligation is and to act on that interpretation of the statute. I can understand a case where a discretion is vested in an officer in which case undoubtedly the Court will not issue a mandamus. But as we have stated before, if the question is of statutory obligation, it is only for the Court to decide whether there is such an obligation and what that obligation is; and having decided that question it is for the Court to consider next whether the officer has acted consistently with his obligation or in opposition to or in violation of that obligation. Therefore, when the respondent comes before us and says that he is not an unauthorised person and that he is a tenant and in any view of the case he is in possession of the property under cover of a title and that the Custodian cannot under the statute eject him, then, it is for us to consider whether in fact he is or he is not an an-authorised person, because under the statute as we read it there is an obligation upon the Custodian not to eject any person who is not in unauthorised possession of any evacuee property. Therefore if the Custodian threatens the respondent to eject him though he is not in unauthorised possession of the property, then he is acting contrary to the statute and the Court will ask him to forbear from doing so.

8. Reliance is then placed upon Section 4 of the Act which provides that the provisions of the Act and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. What is argued is that although under the ordinary law the Custodian may have to file a suit for ejectment after the notice served by him upon the respondentexpired and would have to obtain a decree of the Court before he could eject the respondent, by reason of Section 4, he is not bound to follow the ordinary law and he can act contrary to what the ordinary law provides. Now it is clear that Section 4, was not intended to confer any more or higher power upon the Custodian than is to be found under the provisions of the Act. All that Section 4, means is that if we find any particular provision in this Act or in the rules and orders made thereunder and the provisions of the Act or the rules and orders are inconsistent with any other law for the time being in force or any instrument having effect by virtue of such law, then we must give effect to the provisions of the Act and of the rules and orders made under the Act notwithstanding the fact that the other law or instrument is inconsistent with the Act, or rules or orders. Mr. Seervai's difficulty is that before he can requisition to his assistance Section 4 he must satisfy us that there is any provision in the Act which entitles the Custodian to eject a person in possession of evacuee property which possession is not unauthorised possession in the sense which we have indicated.

9. Reliance is placed on Section 10 1). That sub-section provides that subject to the provisions of the rules to be made in that behalf the Custodian may take such measures he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property which has vested in him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. Now Mr. Seervai says that reading Section 10(1) and Section 4, together the Legislature intended to enable the Custodian to do anything he thought proper for securing, administering, preserving, and managing evacuee property ; that it was open to him to disregard any law, to commit a breach of the provisions of the Indian Penal Code, or of Law of Torts, or of Landlord and Tenant, so long as in acting as he does he is acting for the purpose of securing, administering, preserving and managing evacuee property. If that be the true construction of Section 10(1), it would indeed result in a charter being given to the Custodian of the most unbridled license, fortunately, it is clear that the Legislature never intended to issue such a license to the Custodian nor can the section possibly bear such an interpretation. The measures which the Custodian can take under Section 10(1) for the purposes of securing, administering, preserving and managing the evacuee property are clearly measures which are within the law and not measures which can be taken in disregard of the law. Therefore, these measures must be justified by the provisions of the Act. He cannot take measures which are not justified by any provisions which can be found within the four corners of the statute. Section 10 does not enlarge or amplify the power of the Custodian, His poweris to be found in the various provisions of the Act. All that Section 10 says is that that power can be exercised for the purposes of taking such measures as he considers necessary or expedient for securing, administering, preserving and managing the evacuee property.

10. It is therefore clear that the Custodian has neither the power to take possession of the property under Section 12, nor has he power to take possession of it under Section 8(4) or Section 10(1) of the Act.

11. Mr. Mistree wanted to raise a contention that there has been no valid and legal termination of the tenancy by the notice given by the Custodian on May 31, 1950. He also wishes to contend that his tenancy is protected under the Rent Act. Now it is unnecessary for us to decide these questions, because as we have held that the Custodian has no power to take possession of the property of which the respondent is in possession except by due process of law and by having recourse to the ordinary law, it would be open to Mr. Mistree's client, if and when the Custodian files a suit against him for ejectment to take up both these contentions before the Court which hears that suit. It would be open to him to urge that the Custodian is not entitled to a decree for possession because his tenancy is protected and it will be equally open to him to con tend that he is protected by the Rent Act. It will be for the Court trying that suit to decide whether these two contentions are well founded and whether the Custodian is or is not entitled to any reliefs by reason of these contentions.

12. The result, therefore, is that the appealfails and is dismissed with costs.


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