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Shrinibai Manchershaw Mehanty and anr. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 374 of 1958
Judge
Reported in(1959)61BOMLR1191
ActsBombay Land Requistion Act, 1948 - Sections 6 and 9; Evidence Act, 1872 - Sections 115
AppellantShrinibai Manchershaw Mehanty and anr.
RespondentState of Bombay
Appellant AdvocateR.L. Dala, Adv.
Respondent AdvocateS.J. Sorjabi, Adv.
Excerpt:
.....of premises -- order of requisition whether effective without transfer of physical possession of premises to government.;the word 'release' used in sections 6(1) and 9(1) of the bombay land requisition act, 1948, does not mean restoration of physical possession. the word is used not as other word for restoration of possession, but as something precedent to transfer and/or restoration of physical possession of the premises.;a de-requisition order made under section 9(1) of the act is complete in all its effects and aspects when it is made. it is, therefore, complete before service or communication thereof on the landlord and even if physical possession is not transferred to the appropriate person.;under section 6 of the act a vacancy can arise by reason of release of the premises from..........including the restroration of the premises. it would not be that in resect of a 'desrequisitioned' premises 'requisition order' would continue, or be effective in law if physical possession is not restored. nor would it be conversely true for the government in a given case to contend that possession having not been restored, there is no 'derequisition' of the property in spite of a 'de-requisition order' having been made.(9) if this is the true meaning of the provisions of section 9 the same should be applicable to the relevant provisions of section 6, which provides that a vacancy comes into existence by reason of 'release of the premises from requisition'. in my view upon a de-requisition order being made there is a release of premises from requisition. this is the meaning of section 6.....
Judgment:

(1) This is a petition under Art 226 of the Constitution challenging the validity of a requistion Order date 4-7-1958, passed in pursuance of clause (a) of sub-section (4) of S. 6 of the Bombay Land Requistion Act of 1948.

(2) The relevant facts are as follows: The petitioner is the owner of Hera Building at Jehangir Daji Lane, Sleater Road, D. Ward, Bombay 7. Prior to 31-5-1957, one P. N. Mehta was occupying the first floor of that building as a tenant of the petitioner. By a notice to quit P. N. Mehta gave notice to the petitioner that he would vacate the first floor of the premises ont he expiry of the month of the tenancy, viz.. 31-5-1957. In fat on 5-6-1957, P. N. Mehta vacated the first floor fo the premises hereinafter referred to as the premises. By a letter dated 5-6-1957, the petitioners signed the printed prescribed the same to the Accomadition Officer. A copy of that form is annexed as Annexture to affidavit in reply dated 1-11-1958. This form reached the Accommodation Department on 18-6-1957. By a requisition Order dated 17-7-1957, the ermises were requistioned under clause (a) of sub-section (4) of S. 6 for housing a person rendered homeless due to house demolitionont he ground that the intimation under sub-section (1) of S. 6 of the Bombay Land Requistion Act had been received from the petitioner on 18-6-1957.

(3) The petitioner made several representation to the Government from time to time that he intended to sell off the heera Building and that the Government should, therefore, not enforce the requistion order and should not take possession of the premises. The Government accepted the representations made by the petitioner and from time to time extended the date within which thepetitioner should complete the intended sale of the property. The time was extended ultimately to 31-5-1958. As the petitioner had not completed the sale of the property an enforcement order dated 305-1958, was issued and on 3-6-1958, possession was taken by the Government of the premises.

(4) It appears that having regard to the time that was given to the petitioner from July 1957 till May 1958, thepremises were not needed fr housing aperson rendered homeless due to house demolition for which purpose the requistion rder dsted 17-7-1957, was made. Government thereupon by a de-requistion order dated 3-7-1958, made udner S. 9 of the Act de-requisitioned the premises.

(5) On 4-7-1958, the requistion order in quation was made for housing a State Government Servant. The de-requistion order and this requistion order were served on the petitioner on 4-7-1958. The petitioner has challenged the requistion order dated 4-7-1958, before me on the following grounds: (1) The first requistion order dated 17-7-1957 was illegal and void because the intimation (of vacancy) dated 14-7-1957, which was delivered to the Accomodation Department did not comply in all respects with the prescribed form as certain details to be mentioned were incomplete and that the intimation did not amount to an intimation of vacancy, on the footing whereof a reuistion order could be made by the Government. The first order being illegal and void, tere could not be any release from requistion in respect of such illegal and void requistion. (2) The requsition under S. 6, on the ground of release of premises from requisition, must comply with the provisions of S. 9 of the Act and under S. 9 release is not complete unless physical posessin is restored to the person entitled to the same. The requsition order cannot be made under S. 6 on the ground of release of th epremises from requisition without restoration of physical possession to such person. The requisition was in fat made without release and, therefore, is illegal. (3) No vacancy as requied under S. 6 could come into existence by the said de-requistion order on the petitioner a fresh requisition order on the ground of release of thepremises from requisition was made. The order was without existence of vacancy. (4) As both the de-requistion order and the requisition order were served at the same moment on the petitioner, there was no vacancy and jurisdiction under S. 6 to the Government to make a requisition order; that infact no inquiry had taken polace as required under theprovisions of sub-clause (4) of S. 6 and, therefore, the condition precedent to excerise of the jurisdiction had also not been satisfied.

(6) For the examination of htese contentions of the petitioner it is necessary to recite the whole of the de-requistion order and the requisition order in question. The de-requistion order dated 3-7-1958, runs as follows:

'In excerise of thepowers conferred by subsection (1) of S. 9 of the Bombay Land Requistion Act, 1948 (Bom. XXXIII of 1948), the Government of Bombay hereby releases from requistion the premises specified below which were requistioned under Government Order No. R14/101-G/Hira-I-A-1565, dated 17th July 1957. x x x x x.'

The requistion order dated 4-7-1958, runs as follows:

' Whereas on inquiry it is found that the premises specified below had become vacant on 3-7-1958 by reason of the de-requisition Order No. VI/101G/Heera-1, dated 3-7-1958.

Now therefore, in exercise of the powers conferred by clause (a) of sub-section (4) of S.6of the Bombay Land Requistion Act 1948 (Bom. XXXIII of 1948) the Government of Bombay is pleased to declare that the said premises had become vacant after 4-12-1947 and to requisition the said premises for a public purpose, namely, for housing a Bombay State Government Servant. x x x x x. '

(7) It is patent that the requisition order in question is made on the basis that the premises had become vacant on 3-7-1958, by reason of the de-requisition order dated 3-7-1958. Jurisdiction to make that requisition order is to be found under S. 6 of the Act. The relevant part of S. 6 runs as follows:

6. (1) ' If any premises situate in an area specified by the State Government by notification in the Official Gazette, . . . . . become vancant . . . . . by reason of the release of the premises from re-quisition. . . . . . . . . . . the landlord of such premises shall give intimation thereof in the prescribed form to an officer authorised. . . . . . . . . .'

6 (4) ' Whether or not an intimation under sub-section (1) is given and notwithstanding anything contained in s. 5, the State Government may by order in writig -

'(a) requisition the premises for the purpose of the State or any other public purpose and . . . .

'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 land -lord, the State Government shall make suchinquiry as it deems fit and make a declaration in the order that the premises were vacant or had become vacant, . . . . . ..'

The relevant provisions of S. 9 are as follows:

9. (1) 'The State Government may, at any time release from requisition any land requisitioned or continued to be subject to requisition under this Act.

(2) (a). ' Upon such release the land shall be restored as far as possible in the same condition in which it was on the date on which the State Government was put in possession thereof, and the State Government shall pay compensation for deterioration, if any ................

(3) ' When any land is to be released from requisition the State Government may, after making such inquiry, if any, as it deems fit, specify by order in writing the personto whom possession of the land shall be given.'

There are further provisions in Section 9 relating to the machinery for crystallizing rights and obligations between the person entitled to possession and the Government regarding the premises. These are not relevant for the purpose of this petition.

(8) Mr. Dalal has referred me to the definition of the word ' to requisition' in sub-clause (50 of Section 4, which runs as under-

4. (5): ' to requisition' means in relation to any land to take possession of the land or to require the land to be placed at the disposal of the State Government.'

In developing the grounds (2), (3) and (4) mentioned above, Mr.Dalal argues that the word 'release' in sub-section (1) of Section 6 and sub-Section (1) of Section 9 must be given the same meaning. He contends that 'release' is converse of the definition of the words of ' to requisition' as quoted above. He says that requisition means taking of physical possession. He contends that on a true construction of the provisions of Section 6, vacancy cannot arise by reason of release of the premises in queston to such person. For this contention he places emphasis on sub-setion (2) of Section 9 and says that it is patent that on de-requistion physical psssession is directed to be restored. It is not possible, he says, tocomplete the de-requistion phuscial possesision is restored. It is not possible, he says, to complete the de-requisition without such restoration of possession. Now, if one looks at the definition of the words 'to requiresition' as quoted above, the second part thereof does not refer to or contemplate immediate transfer of physcial possession. 'To require the land to be placed at the disposal of the State Government' is merely to make a requistion for the purpose. Such a 'order of requistion' in all its aspects is completed by meely making anorder for the purpose. Even when phuscial possession is not transferred to the Government and or taken on behalf of the Government a 'requistion order' made would exist in all effects. The converse is true of de-requistion order, if true meaning is to be givaen to the provisions of Section 9(1) of the Act. The word 'release' is used not as other word for restoration of possession but as something precedent to transfer and/or restoration of physical possession of the premises. A release from requisition is made in all cases by a 'disrequisition order'. That order is complete in all its effects and aspects when it is made in the relevant Department of the Government. It is, of course true that consequent upon such 'dis-requisition order' the Government will restore physical possession of the premises in question to the appropriate person. It is also necessary that rights and liabilities and obligations in respect of such premises between the Government on the one hand and of the appropriate person on the other hand must be crystallised. The provisions under sub-section (2) and other subsequent sub-sections of Section 9 relates to the machiney for crystallisation of the rights and liabilities of the parties in respect of the premises including the restroration of the premises. It would not be that in resect of a 'desrequisitioned' premises 'requisition order' would continue, or be effective in law if physical possession is not restored. Nor would it be conversely true for the Government in a given case to contend that possession having not been restored, there is no 'derequisition' of the property in spite of a 'de-requisition order' having been made.

(9) If this is the true meaning of the provisions of Section 9 the same should be applicable to the relevant provisions of Section 6, which provides that a vacancy comes into existence by reason of 'release of the premises from requisition'. In my view upon a de-requisition order being made there is a release of premises from requisition. This is the meaning of Section 6 and in case of a vacancy arising on 'release of the premises from requisition' there is jurisdiction to make an order for requisition on the basis of vacancy. I, therefore, negative the contention of Mr. Dalal that the word 'release' as mentioned under Ss. 6 and 9(1) has reference and/or is connected with restoration of possession. I also negative his contention that no vacancy is created by release from requisition until a de-requisition order is served on the landlord. The de-requisition order and the requisition order in question were served on the petitioner at the same time.

(10) As regards the contention of Mr. Dalal that there has been no inquiry in this case as provided in sub-section (4) o Section 6, Mr. Sorabjee has drawn my attention to the statements made in paragraph 16 of the affidavid in reply, viz.

'I deny the correctness of the submission that there was no inquiry after passing the requisition order dated 4th July 1958. I say Government did make such inquiry as it thought fit in the facts and circumstances of the case......... I deny that no inquiry was made...........'

That is a question of fact on which statement on oath has been made by the Accommodation Officer as quoted above. In fact it is the petitioner's case that the premises had continued to be vacant from June 5, 1957 when P. N. Mehta had vacated the same. That relevant fact and subsequent happenings were in the knowledge of the Accommodation Officer and he had little to do to find out whether the premises our vacant. In those circumstances there is no reason why I should not accept the statements made on oath by the Accommodation Officer. I am, therefore, not in a position to uphold the contention of the petitioner that no inquiry was made by the Accommodation Officer as stated in the impugned order.

(11) In this contention Mr. Sorabjee has drawn my attention to the decision of S. T. Desai J. in Misc. Petn. No. 278 of 1958, Dosibai Cowasji Umrigar v. State of Bombay, D/- 8-1-1958. In that case also the requisition order was made almost immediately after a de-requisition order was made and it was contended on behalf of the petitioner that no inquiry of any kind was held as required under the provisions of Section 6(4) of the Act. In that connection it was observed as follows:

'Another contention urged on behalf of the petitioner was that order of 23rd July 1958 was bad because no inquiry was made before making that order. Now the provision relating to the inquiry is to be found in the proviso to Section 6(4)...... The inquiry of any kind was held as required under the provisions of Section 6(4) of the Act. In that connection it was observed as follows:

'Another contention urged on behalf of the petitioner was that the order dated 23rd July 1958 was bad because no inquiry was made before making that order. Now the provision relating to the inquiry is to be found in the proviso to Section 6(4)....... The inquiry must necessarily relate to the factum of vacancy. I asked learned counsel as to what was the inquiry that the State Government could make in a case where a vacancy in consequence of an order or de-requisition arose, but no satisfactory answer was forthcoming. In my jdgment all that the authority would have to do in such a case would be to satisfy itself that the premises had become vacant in pursuance of a duly made order of derequisition. Of course the Accommidation Officer would apply his mind to the necessary facts before making a declaration that the premises had become vacant. Vacancy may arise in the various ways mentioned in Section 6(1). But in the case of a vacancy that arises in consequence of a release of premises from requisition the position is very difference from that in the cases of vacancies arising for other reasons. In the case of such a vacancy the inquiry must necessarily be of the simplest. This inquiry I am satisfied was made by the Authorities. The petitioner's contention on this aspect of the case is based merely on an allegation, which allegation has been denied by the Accommodation Officer. There is no material on which I can hold that no inquiry whatever was held by the Authorities before the declaration about the vacancy was made.' In this case before the above decision was cited to me I had enquired of Mr. Dalal as to what inquiry the Government could make in this case and there was hardly any answer worth recording. The reasoning in that decision applies in all its force to the case before me. I therefore, negative the contention of Mr. Dalal that no inquiry relating to vacancy was made in this case.

(12) The first ground of Mr. Dalal appears to me to be entirely frivolous and unsustainable. The requisition order dated July 17, 1957, was not questioned at any time by the petitioner He had accepted the order and had made a representation that the same sould not be enforced because he wanted to sell the property. The Government had on the basis of that representation allowed him time, from time to time, and had not enforced the order till the end of May 1958. Having led the Government to believe that he was not questioning the requisition order on any ground and thereby having persuaded the Government to allow him time for completing the sale of property, the petitioner is, in my view, estopped from raising contentions as are sought to be raised by Mr. Dalal. It is rightly contended by Mr. Sorabjee that the petitioner cannot be allowed to take advantage of his own wrong Mr. Dalal's contention is that the form of intimation had not been complied with in all its parts because where the form required the full name and address of the landlord, and form mentions the name of the second petitioner only and did not include the name of the first petitioner and secondly where the name of the first petitioner and secondly where form required particulars regarding the date on which the vacancy occurred, the information given was June 1957 and not 5th June 1957. The contention appears to the prima facie frivolous. In any case it is only necessary to record that in the matter of form prescribed by statutory bye-laws of the East India Cotton Association Ltd. the Supreme Court has laid down that even where compliance of form is required by a Statutory byelaws or form deviations which do not change ultimate legal effect of the form prescribed are immaterial and do not vitiate the transaction. Deviations of the kind which are mentioned in this case cannot be treated as non-compliance of the form and cannot have the effect of distroying the intimation. In this case the legal effect of the form is not changed even though the name of one of the landlord is not mentioned and this 'day' of the month of June is not mentioned. This incomplete character of the form is the result of the petitioner's own act. I am not prepared to hold that for this reason the intimation given amounts to non-compliance of the form. The information which is given by the form is reasonably complete and the same in no manner affects the character or legal effect of the form. The Government was entirely right to proceed on the footing that the information and intimation was complete and had complied with the provisions of the statutory form. I, therefore, negative the contention of Mr. Dalal that the first requisition order is void.

(13) Mr. Sorabjee has contended that non-compliance with the prescribed form amounts to an offence and the petitioner should, on his own argument, be held to have committed an offence and in no event must be granted any relief on that ground. That contention appears to me to be correct.

(14) Under the circumstances petition dismissed with costs. Rule discharged.

(15) Petition dismissed.


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