1. The petitioner is one of the executors of the Will of late Dr. Mangharam Rochiram Lalvani and a probate has been granted to the petitioner on 15-9-1976 by this Court id Petition No. 262 of 1974. On 23-10-1954 the 4th respondent was registered as a society under the provisions of the Societies Registration Act, 1860. The principal object of the 4th respondent as appearing from its constitution is as follows :
'To disseminate knowledge and education about, and to promote the adoption of, the practice of family planning for the advancement of basic human rights, family and community welfare, the achievement of a balance between the population and its resources and productivity, and the attainment of a higher standard and quality of life.'
This association had been in existence for about 15 years when the order of requisition dated 25-10-1976, mentioned hereinafter was passed.
2. The said deceased died on 11-10-1973 and till his death was residing in flat No. 34, 5th floor 'Sagar Darshan', Bhulabhai Desai Road, Bombay 400026 (hereinafter referred to as 'the said flat'). The building in which the said fiat was situated was and is owned by a Co-operative Housing Society. Under his Will dated 9-2-1971 the deceased directed his executors and trustees to dispose of the said flat and the shares held by the deceased in the co-operative society and out of the corpus or income of the property to give such amounts to the poor in charity as the executors may in their discretion deem fit. Sometime in the year 1974 the petitioner alone applied for the probate of the Will with consent of the other executors which probate was ultimately issued on 15-9-1976. For want of probate the petitioner was obviously not in a position to dispose of the said flat. Though petitioner has stated in para 10 of the petition that the said flat was being used for residence even prior to the passing of the said order and was not vacant for a period of six months prior to the making of the said order, it is not possible to ascertain on the basis of the record available whether any person was actually residing in the said flat. The prima facie impression created is that tile flat was not actually used for actual residence though all the items and paraphernalia required for residing therein were existing in the said flat.
3. I ascertained from Mr.. Talyarkhan, though it is not in any affidavit that one K.T. Satarawala a retired I.A.S. Officer, who retired sometime in June, 1975 and acted as Chief Adviser to the Government of Gujarat till then, was appointed as the chief executive of the 4th respondent by a resolution of the 4th respondent dated 17-5-1976 and the letter of appointment dated 18-5-1976 was issued in his favour. His post was given a nomenclature of Secretary General but he was only an employee of the 4th respondent. The Association has the All India Council consisting of various office-bearers who are honorary members and one of the office-bearers is Honorary General Secretary. It would appear that soon after the said Satarawala acquired this exalted position, the Government started considering the question of requisitioning of the said flat under the Bombay Land Requisition Act, 1948 and instituted inquiry.
4. A notice dated 30-7-1976 was issued by the Accommodation Officer and pasted on the said flat addressed to the 'legal heirs of late Dr. M.R. Lalwani'. This notice describes the flat as 'premises' and throughout uses the word 'premises' for the said flat. The word 'premises' has specific connotation under the said Act and is defined under the said Act as any building or part thereof let or intended to be let separately. This notice came in the hands of the petitioner and the petitioner replied to the same by a letter dated 12-8-1976 which was delivered to the Accommodation Officer on that very day and a day before 13-8-1976 being the date mentioned in the said notice for personal attendance to show cause with written statement if any. Obviously misled by the use of the word 'premises' in the said show cause notice, the petitioner proceeded to reply as if the fiat was sought to be requisitioned under Section 6 of the said Act. The said letter slates that petitioner is one of the executors of the Will of the deceased and had applied for tha probate of the said Will to the High Court and also gives petition number. This reply also refers to the fact that the Will provided that after the disposal of the flat the sale proceeds thereof were to be utilized for charitable purposes. Address of the petitioner is also given in the said notice. It was clearly brought to the notice of the Accommodation Officer that the petitioner was definitely a person interested in the said flat.
5. From the reply it should have been clear to any reasonable person that the petitioner was misled by the use of the word 'premises' and had obviously proceeded on the basis that the flat was sought to be requisitioned under the provisions of Section 6 of the Act and it was not even present in his mind that it was sought to be requisitioned under Section 5. As the position under Section 6 was very clear he may have thought it fit to rest with the reply only and not to remain present on the dale of the hearing on 13-8-1976 before the Accommodation Officer. However, the reply did state that there are no rent receipts in respect of the flat but there were bills and receipts of the said society for the monthly outgoings payable to the society in respect of the flat and that when required, the same can be produced before the Accommodation Officer. The Accommodation Officer, however, if he had read the reply ought to have realised that the petitioner was misled by the show cause notice and there is no reason to presume that the Accommodation Officer did not read the reply. Instead of pointing out to the petitioner by a letter, that the said flat was sought to be taken under Section 5 and not under Section 6 and that his reply was obviously given under misapprehension as to the nature of inquiry being made by him, the Accommodation Officer proceeded to pass an order on 25-10-1976, under Section 5 of the said Act. Not only that but even though he was intimated that (here was a Will for which a probate was applied for arid that the petitioner was one of the executors of the Will and the address of the petitioner was given in the said reply the order was not served on the petitioner but was merely allegedly pasted on the premises which according to the Accomodation Officer were vacant. The said order was addressed to 'the legal heirs of Mr. M.R. Lalwani' and not to the petitioner. It is difficult to understand the purpose of addressing the order to the legal heirs generally and pasting it on the vacant premises when it was known that only one person was taking interest in the said proceeding and whose name and address were known to the Accommodation Officer. Immediately within a few days thereafter an order dated 2-11-1976 was issued appointing an inspector in the office of Controller of Accommodation to take possession of the flat. The officer took possession of the flat on 3-11-1976. Correspondence thereafter ensued which ultimately resulted in filing of this petition on 16-11-1976....
6. Shri Madnaney for the petitioner contended that the said notice and the order are bad because; (a) the notice is vague and misleading and, therefore, did not give fair opportunity to the petitioner of putting forward his case and (b) the order is also bad as being vague and as it was not made for any public purpose but made for a nominee of the 4th respondent, which nominee may or may not be connected with the 4th respondent at all and, (c) that the building belonged to a co-operative society and, therefore, was exempted from the provisions of the said Act by virtue of the Bombay Land Requisition (Exemption) Rules. 1948.
7. Shri Madnaney's contention is that the enquiry to be held under the provisions of Section 5 of the Bombay Land Requisition Act, 1948 by the Government and, thereby the officer concerned, is not a mere mechanical enquiry but he has to himself arrive at an opinion after ascertaining the relevant facts. Not only that but he also must give a proper and sufficient notice of the nature of the enquiry to the person likely to be affected. He further contends that the officer concerned must also try to ascertain all the relevant facts as to whether the property sought to be requisitioned is such as could be requisitioned, and also enquire and form an opinion as to whether the purpose of requisition is a public purpose and that requisitioning is necessary for that public purpose. Accordingly he contends that the notice should necessarily mention either the section under which a particular property is likely to be acquired or the facts on the basis of which the same is likely to be acquired which would necessarily imply or bring home to the person concerned the section under which the property is sought to be acquired. He contends that in the present case the petitioner not only was not made aware of the nature of the enquiry and the facts sought to be ascertained but on the contrary the notice gave an impression that the inquiry was for requisitioning under Section 6 while in fact the requisitioning was contemplated under Section 5 of the said Act. The sections which cast a burden on the Government to make enquiry really cast a heavy burden. The enquiry is not to be made mechanically and cursorily. The officer does not have to rely on other persons producing evidence in one way or the other and if no: evidence is produced pursuant to notice, the officer is not entitled to assume that the flat is such as can be subjected to requisition land that purpose is a public purpose and that the purpose is such as requires the said flat to be requisitioned. The officer has to make his own inquiries and where necessary call for all the documents which may have the effect of the enquiry resulting in one way or the other and enable him to form a definite opinion. The officer cannot impose the burden on some other party to prove positively the position of the land in respect of which the inquiry for requisitioning is being made. The officer cannot obviate the necessity of forming his own opinion based on facts by relying on absence of the party interested or lack of evidence. In course of such inquiry if a party is found to be likely to be adversely affected it must also be informed not only of the provisions under which the requisition is sought to be made but also of the public purpose for which it is sought to be made and the affected person should be given an opportunity to contend as to whether the said alleged purpose is a public purpose or not or that such public purpose really requires the requisitioning. In the present case the notice as already stated is vague not only as to the provisions under which the flat is sought to be requisitioned but also does not state whether it is for a public purpose and what is that public purpose. Similar would be the situation under Section 6. As the requisition is being made under Section 5, I do not want to go in detailed requirements of the notice, if the inquiry is under Section 6.
8. Shri Shah has contended that the notice is not vague. It states that the premises are sought to be requisitioned under the Act which contains only two sections and that the petitioner should have replied to the said notice on the basis that the premises may be requisitioned under either of the two sections. He further contends that in any event the notice has called the petitioner for personal hearing on a particular dale and time and if the petitioner bad remained present he would have known under what provisions the flat was sought to be requisitioned. The petitioner who is in default in remaining present and in making inquiries with the respondent, cannot now make a grievance of no opportunity having been given fof hearing. He says that not only the pensioner remained absent on the day on which the hearing was fixed but that in the correspondence that followed after the order he had not raised any objection as to vagueness and insufficiency of the notice and the complaint now made is only an afterthought. He contends further that it is admitted by the petitioner either expressly or impliedly that nobody was residing in the flat after the death of the deceased and therefore admittedly nobody actually resided in the said flat for over 6 mouths preceding the order and, therefore, the want of notice and the contention based on lack of proper notice is only a mere technicality and has not resulted in any injustice to the petitioner. I do not find substance in any of the contentions of Mr. Shah. The burden was not on the petitioner to find out how and under what provisions the flat was sought to be requisitioned. The burden was on the officer concerned to make proper inquiry and declaration and to give fair opportunity to the person concerned to present his case. As aforesaid the person is to be heard also on the public purpose and its requirement. Apart from that it is wrong to throw burden on the petitioner to ascertain the provisions under which the flat was sought to be acquired. It is for the officer to give proper notice and it is he who should have realised that the notice was misleading and ought to have pointed out to the petitioner the misapprehension on the part of the petitioner and thereafter proceeded to form his opinion. The notice is therefore vague as regards the applicable provision and completely wanting as regards public purpose and therefore no notice at all.
9. Mr. Madnaney has further contended that the order of requisition passed should be a speaking order and in the absence of speaking order it is void. In support of his contention he relied on the unreported judgment of Pendse J. dated 15-10-1979 in Misc. Petn. No. 37 of 1976 in Narendra Jaychand Shah v. R.S. Rajadhyaksha, Controller of Accommodation. With respect I am in full agreement with the said judgment. It is deal that the order in question is not a speaking order and it is liable to be set aside on that ground alone. The requisition order must give reasons as to whether, (a) the property is such as can be requisitioned, (b) the purpose for which it is sought to be requisitioned is a public purpose and, (c) the public purpose requires the said property. In the absence of proper speaking order the order would be bad. Shri Shah contends that the order in the present case, contains reasons for requisitioning and nothing further is required to be stated. On the plain reading of the order, it is clear that it is a mere reproduction of the requirements laid down by the section and gives no reasons: It does not even state that the representation of the petitioner was considered and though the show cause notice mentions the word 'premises' does not explain why has the order changed it to 'Building', particularly when only a part and not the whole of the building was requisitioned. A further, inquiry required to be made under Section 5 would be as to whether the owner has resided in the building for a continuous period of six months or not. The owner of the flat was dead. The petitioner while replying did not say that nobody was residing in the flat. The order, therefore, does not disclose any application of mind in so far as this requirement of Section 5 is concerned. It is obvious that the order is passed just mechanically and show cause notice was given merely for technical compliance with the rules of natural justice but not with any intention of complying with the substance of the principles of natural justice.
10. In support of his argument regarding the vagueness of the public purpose and the purpose not being public purpose Mr. Madnaney relied on the decision of this Court reported in Amriksingh v. State of Bombay, : (1961)63BOMLR863 . In that case the premises were sought to be requisitioned under Section 6 of the Act for a public purpose namely, 'for the use of a public servant'. On the ground that the public servant can include several persons some of them obviously not covered by the public purpose, it was held that the public purpose stated was vague and,, therefore, the order was bad and was set aside. This judgment clearly applies to the present case and the order passed by the 4th respondent is too vague and the purpose does not fall within the meaning of 'public purpose'. The nominee of the 4th respondent may be an employee of the 4th respondent or an officer of the 4th respondent or only a friend of an employee or office-bearer of the 4th respondent but unconnected with the 4th respondent and he may be a person who may have several flats in his possession already. It has so happened in the present case that the Sat was given to Satarawala who was an employee, but what is actually done cannot be taken into account for interpreting an order. The 4th respondent may have given the premises to a person unconnected with its work as its nominee and it could not be said that the 4th respondent bad violated the order. Mr. Talyarkhan has submitted that sufficient notice was given to the petitioner and that the order should be interpreted in the light of the events that took place subsequently.
He says that the order should be interpreted go that the nominee must be a person connected with the 4th respondent and that in fact only Mr. Satarawala had occupied the flat from the very inception and he is occupying the flat till today. I am afraid I cannot accept this contention. The order has to be interpreted by its own wording and not by the manner in which it has been implemented. Nothing is to be found in the order which can lead one to restrict the meaning of 'nominee' to the employee of the 4th respondent or only a person who is connected with the 4th respondent. I am, in this case assuming without deciding, that the requisitioning for the purpose of the 4th respondent will be public purpose. On the aforesaid ground also the said order is bad.
11. The 3rd contention of Shri Madnaney also is a formidable contention and has to be upheld. In the exemption rules framed under Section 19 (2) (iv) of the said Act, R. 4 provides for exemption to buildings specified in the first column of the schedule appended to the rules, from the provisions of the section or sections of the Act, specified against them in the second column on Ihe terms and conditions specified against them in the third column of the said schedule. Rule 5 provides that if any of the terms and conditions specified in Rule 4 are not complied with, the State Government may withdraw the exemption granted under R. 4. If these two rules are read together it is clear that the exemption is to be withdrawn for non-compliance with the terms and conditions. The exemption has to be there before the question of withdrawing it can arise. The effect of the said rules read with Item No. 1 in the schedule can only be that the building belonging to a co-operative housing society is exempted from its very inception from operation of Sections 5 and 6, but the terms and conditions set out are required to be observed. In case the said terms and conditions are no observed the power is given to the State Government to withdraw exemption. Till that exemption is withdrawn, Ss. 5 and 6 of the Act cannot apply to the buildings owned by a Co-operative Housing Society. The compliance with the terms and conditions is not a prerequisite of exemption but a condition subsequent (non-compliance of ?) which renders the building liable to be deprived o: exemption. In the present case the building is admittedly' owned by the Co-operative Housing Society and as such exempt. It is not contended that the exemption is withdrawn. As is held by S.T. Desai, C.J. and P.N. Bhagwati, J. in Parshottamdas v. State, (1960) 1 Guj LR 89 the building has to be considered as a whole and not various parts thereof. If the whole building belongs to the society, various parts being subjected to the interest of the different persons, the building in its entirety and all its portions will be exempted. Apart from this it is stated in the petition in para. 10 (hh) that there was a decision of the Government not to enforce the said conditions. This statement has not been denied on behalf of the respondents 1 to 3. I, therefore, assume that such was the policy followed. It can be assumed that in view of this policy though according to the Government the condition No. 2 was not complied with the Government did not proceed to make an order taking out the building from exemption under Rule 5. Mr. Shah has fairly relied only on the contents of the affidavit in reply fifed by the 2nd respondent dated 21-3-197 (sic) merely by reading it out and without any further oral submissions in so far as the question of there being such a policy is concerned. He has rested with the contention that on a true interpretation of Rules 4 and 5, the exemption is available only if the terms are complied with and that in the present case the terms are not complied with. In my view this contention cannot be accepted. The said terms are such that the question of complying with them can arise only after the building is exempted as is apparent by the very nature of the terms.
12. Shri Madnaney advanced several other arguments based on para. 10 of the petition. However, I requested Shri Shah and Shri Talyarkhan to confine their arguments only to the aforesaid points and, therefore I am not dealing with the said other contentions as in my view the contentions set out above are sufficient to decide the petition. In the result the rule is made absolute in terms of prayer (a). The respondents to pay to the petitioner, the costs of the petition. .
13. Shri Talyarkhan points out that Satarawala has given undertaking to hand over possession of the flat in question within four weeks from the final order of the first Court. He states that in view of the difficulties faced by Satarawala in finding another accommodation I should give him time up to the end of Dec. 1980 to vacate the premises. I do not see any reason to give relief in the said undertaking except that the period of 4 weeks will commence only after the date of signing of this judgment.
14. The respondents will hand over possession of the said flat to the petitioner along with all the items specified in the inventories annexed to the affidavit of Kakal dated 10-12-1976.
15. Petition allowed.