K.T. Desai J.
1. The petitioner claims to be a tenant of a room in a building known as New Blocks situate at 175, Walkeshwar Road, Bombay. Prior to the year 1942 one Chandravadan C. Mehta was the tenant of the said premises. The petitioner alleges that he used to reside with the said Chandravadan C. Mehta in the said premises from the year 1941, that the said Mehta left the premises permanently in or about the middle of 1942, that the petitioner thereafter remained in possession of the said premises and was regularly paying rent in respect of the said premises to the landlord, that rent receipts in respect of the said premises were issued in the name of the said Mehta upto the end of the year 1955, that thereafter they were issued in the name of the petitioner and that he was the tenant lawfully entitled to occupy the said premises. In or about the end of March 1956 the petitioner came across a notice issued by the Inspector of Requisitioning calling upon the occupants of the said premises to present themselves before the Inspector with rent receipts, ration cards, electric bills, postal evidence etc. and to furnish such information as may be in their possession relating to the said premises. It is the case of the petitioner that he thereupon saw the Accommodation Officer and satisfied the Officer that he was the tenant of the said room. On March 29, 1957, a notice was issued by the Accommodation Officer to the said Ohandravadan C. Mehta as the tenant and to the petitioner and one Mahendra Manubhai Javeri as occupants. In that notice it was stated that the Government had made inquiries and were considering the question of requisitioning the said premises. The said Mehta, the petitioner and the said Javeri were required to see the Accommodation Officer on the date and at the time therein specified with their legal adviser, if any, with a written statement to show cause if any, why the said premises should not be requisitioned. They were further required on that day to produce all available evidence such as food ration cards, the true copies of extracts from the A.R.D.'s registers, rent bills, gas and electricity bills, postal cards or envelopes received at the said address and any other relevant evidence. On April 22, 1957, the petitioner saw the Accommodation Officer and pointed out what according to him were the correct facts and produced documentary evidence in support of his case. On December 13, 1957, an order was passed requisitioning the said premises. That order is in terms following:-
Whereas on inquiry it is found that Shri Chandravadan C. Mehta was the person lawfully entitled to reside in the part of the building specified below:
Room No. 1 on the 1st floor of the building known as New Blocks situated at 175, Walkeshwar Road, Bombay.
And whereas on inquiry it is found that the said Shri Chandravadan C. Mehta has not actually resided in the said part of the building for a continuous period of six months immediately preceding the date of this order;
And whereas in the opinion of the Government of Bombay it is necessary to requisition the said part of the building for a public purpose, namely for housing a Bombay State Government Servant.
Now, therefore, in exercise of the powers conferred by Section 5 of the Bombay Land Requisition Act, 1948 (Bom. XXXIII of 1948) the Government of Bombay hereby declares that the said Shri Chandravadan C. Mehta has not actually resided in the said part of the building specified below for a continuous period of six months immediately preceding the date of this Order, and requisitions the said part of the building for a public purpose, namely, for housing a Bombay State Government servant.
2. The petitioner challenges the validity of this order on various grounds and has prayed for the issue of a writ of mandamus or a writ in the nature of mandamus or an appropriate writ, order or orders or direction under Article 226 of the Constitution of India ordering the State of Bombay and/or its officers to withdraw, cancel or set aside the said order of requisition dated December 13, 1957, and to forbear from enforcing and/or causing to be enforced or taking or causing to be taken any steps or proceedings in the enforcement of the said order and/or from allowing any person to occupy the said premises.
3. The principal contention advanced before me on behalf of the petitioner is that the said Chandravadan C. Mehta was not at the relevant time lawfully entitled to reside in the said premises. It is urged that in fact he ceased to reside in the said premises since 1942. It is further urged that in any event when the landlord in January 1956 issued rent bills in favour of the petitioner, the vestige of any title in the said Chandravadan C. Mehta to occupy the premises ceased to exist. It is urged that the declaration which proceeds upon the footing that Chandravadan C. Mehta was the person lawfully entitled to reside in the said premises is a bad declaration and that as the declaration is bad, the order of requisition is equally bad and cannot be sustained.
4. It was strongly urged before me on behalf of the respondent that the declaration that has been made is conclusive evidence both as regards the person entitled lawfully to reside in the premises and as regards the fact of his non-residence during the period of six months immediately preceding the date of the order. Section 5(2) of the Bombay Land requisition Act, which has been relied upon, runs as follows:-
5. (2) Where any building or part thereof is to be requisitioned under Sub-section (1), the State Government shall make such enquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided.
5. The question whether the declaration made is conclusive evidence as regards the person entitled to reside in the premises came up for decision before Mr. Justice S.T. Desai in Dwarkadas Gordhandas v. The State of Bombay (1953) O.C.J. Miscellaneous Petition No. 230 of 1953, decided by S.T. Desai J. on October 14, 1953 (Unrep.) In that case, to use the language of the learned Judge, the argument was that the declaration was conclusive evidence not merely of the fact of absence of occupation but also of the fact as to who was the tenant. Dealing with that argument, the learned Judge has expressed himself in emphatic terms as follows:-.The proposition seemed to me to be a startling and menacing one and I expressed the view that the language of the section did not confer any such power on the Requisitioning authority and the only merit of the contention lay in the boldness of the claim. The question of title could not be decided by the Authorities.
The learned Judge has, thereafter, referred to a judgment of the Appeal Court in which the view taken was that the order would be bad if it was established that the sub-tenant, not referred to in the order, had all along been in possession and occupation of the premises and was in possession at the date of the requisition order.
6. I was also referred to a decision of a Division Bench of this Court consisting of the Chief Justice and Mr. Justice Shah in Jamnadas Bamchand v. The State of Bombay (1953) O.C.J. Appeal No. 71 of 1953, decided by Chagla C.J. and J.C. Shah J., on December 3, 1953 (Unrep). In that case the order of requisition dated March 20, 1953, recited that on inquiry it was found that Mrs. R. Craven, the tenant, was the person lawfully entitled to reside in the part of the building therein mentioned. The order of requisition was passed on the footing that Mrs. R. Craven had not resided in the said part of the building for a continuous period of six months immediately preceding the date of the order. Jamnadas Ramchand, the petitioner in that case, contended that he had been accepted as a tenant by the landlord after Mrs. Craven had left the premises at the end of July 1950 and that he was the person lawfully entitled to occupy the said premises. The learned Chief Justice in the course of his judgment observes as follows:-
Before the petitioner can succeed he must establish that he was lawfully in possession of the premises, and the first contention that we have to consider is whether the petitioner has succeeded in establishing his case that he was accepted as a tenant by the landlord after Mrs. Craven left the premises at the end of July 1950.
On the facts of that ease the appeal Court came to the conclusion that the appellant had failed to prove that the landlord had accepted him as a tenant and that a new tenancy came into existence on the departure of Mrs. Craven from India. That decision clearly shows that the appeal Court did not regard the declaration as being conclusive on the question of the person entitled to occupy the premises as a tenant.
7. Reliance has been placed on behalf or the respondent upon a decision of the Chief Justice and Mr. Justice S.T. Desai in State of B'bay v. M.C. Menon (1958) 61 Bom. L.R. That was a case dealing with an order of requisition passed under the provisions of Sub-section (4) of Section 6 of the Act. In that case the premises were used for the purpose of business and the previous tenant had on September 22, 1955, assigned that business to the petitioner for a consideration and had put the petitioner in possession of the premises. The order of requisition was passed on April 22, 1957, and it recited that the premises had become vacant in the month of September 1955. In that case the learned Chief Justice, who delivered the judgment of the Court, referred to his own remarks in the case of Mohsinali Mahomedali v. State of Bombay (1950) 53 Bom. L.R. 94 he had observed that on a declaration being made by Government that there was a vacancy, that declaration was conclusive both as to the facts and also as to the legal requirements which the law made necessary. He further observed that not only it was not competent to the petitioner to challenge the facts on which the declaration was based, but it was also not open to the petitioner to challenge the order on the ground that it did not comply with the requirements of vacancy laid down in the Requisition Act. He took the view that under Article 226 it was not open to the Court to go behind the declaration on a question of fact or on a question of law. That is not a decision in respect of the provisions contained in Section 5 of the Act. There is a limitation upon the exercise of the powers conferred by Section 5 of the Act. Under the proviso to Section 5(1) it has been expressly stated that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under that section. Government is not constituted the sole Judge to determine the person who was the real owner, landlord or tenant of the premises which are sought to be requisitioned. The Government is not enabled by an erroneous decision to deprive the real owner, landlord or tenant of his rights. The making of the inquiry and the making of the declaration referred to in Section 5(2) is constituted a condition of the passing of a valid order of requisition under Section 5(1). Under Section 5 the declaration is made conclusive as regards the actual non-residence of the person referred to in the order for a continuous period of six months immediately preceding the date of the order. The declaration does not preclude the real owner, landlord or tenant from showing that he is the real owner, landlord or tenant and not the person mentioned in the declaration.
8. Another decision referred to on behalf of the respondent was an unreported judgment of a Division Bench of this Court consisting of Mr. Justice Tendolkar and Mr. Justice S.T. Desai in Dashrath Lazman Jaya v. D.B. Pathak, Accommodation Officer, Govt. of Bombay (1957) O.C.J. Appeal No. 42 of 1957, decided by Tendolkar and S.T. Desai JJ. on Semptember 16, 1957 (Unrep.). In that case Mr. Justice Tendolkar, who delivered the judgment of the Court, observes as under:-.no doubt, the State Government has to decide for itself who was the person entitled to reside in the premises, whether he was the owner, the landlord or the tenant; but we find nothing in the words of this sub-section which requires the Government to declare whether the owner, the landlord or the tenant was entitled to reside. Having determined that question for themselves, they have to determine whether the person entitled to reside resided therein for a continuous period of six months prior to the making of the order and making the relevant declaration.... Therefore, in law, in our opinion, there is no obligation on the State Government to declare in the declaration that the person who, according to them, has not resided in the premises occupied the character of an owner or a landlord or a tenant, so long as they have in fact determined for themselves who was entitled/to occupy the premises.
This decision does not deal with the question which has been raised before me. In my view, the decision of Mr. Justice S.T. Desai in Dwarkadas Gordhandas v. The State of Bombay is still good law and I am in respectful agreement with that decision.
9. It is then urged on behalf of the respondent that there is a disputed question of fact which arises on the present petition and that the remedy by way of a petition for the issue of a writ is not the proper remedy. It is urged that the petitioner's claim that he is the real tenant of the premises is not admitted. It is further urged that according to the declaration made by the respondent, Chandravadan C. Mehta was the person who was the tenant of the said premises. I find that in the affidavit in reply to the petition, dated February 21, 1958, it has been stated in express terms by the Accommodation Officer in para. 7 as follows:-
I say that the landlords issued rent receipts in the name of the petitioner from January 1956 and that the rent receipts were issued in the name of the said Mr. Mehta till the end of 1955. I submit that the landlords recognised the said Mehta as tenant and passed receipts in his name till the end of 1955. The landlords were not entitled to accept the petitioner as tenant in and from January 1956 as they purported to do. The landlords ought to have given intimation of vacancy which they failed' to do. I deny that the petitioner was and is the lawful tenant of the premises.
In para. 6 of that affidavit it is stated as follows:-
From the information available to Government, it appeared that Shri Chandra vadan C. Mehta the tenant of the premises in question ceased to occupy the premises in or about 1953 and passed on the said premises unauthorisedly and in contravention of the provisions of law, to the petitioner in or about January 1956.
Having regard to the statement made in that affidavit that the landlords issued rent receipts in the name of the petitioner from January 1956, it is clear that so far as the landlords were concerned, they recognised, as from January 1956, the petitioner as their tenant. The only contention that is sought to be raised on behalf of the respondent is a contention based on law viz. that as no intimation of vacancy had been given by the landlords, they were not entitled to accept the petitioner as their tenant from January 1956, as they had purported to do, and that there was no lawful tenancy of the premises created in favour of the petitioner. This point is, however, covered by a decision of our appeal Court in Mahomed Husain v. Trivedi (1951) 54 Bom. L.R. 659. It is a decision of a Division Bench of this Court consisting of the Chief Justice and Mr. Justice Bhagwati. In that case the learned Chief Justice in delivering the judgment of the Court observes at p. 660 as follows:-.The question is whether any rights are created as between a landlord and a tenant in a case where the landlord fails to give intimation or fails to get permission from Government as required by Section 6. It is clear that if the landlord contravenes the provisions of Section 6, he renders himself liable to penal consequences. But does that mean that no right is created as between landlord and tenant? Looking to the scheme of Section 6 it is clear that Section 6 is not intended in any way to modify the ordinary law of landlord and tenant. The Land Requisition Act requires the landlord to give intimation to the Government of a vacancy because Government can deal with such vacancies by allocating it to persons who are in need of property, and if the landlord does not conform to the scheme, he is penalised for his action. But there is no reason why we should assume from that that if a landlord has created a tenancy in favour of a tenant contrary to the provisions of Section 6, no right is created in the tenant himself. Section 6 does not render a tenancy created void. It only penalises the action of the landlord in that he created the tenancy without the permission of Government.
In view of the aforesaid judgment, once the fact of the landlords having given the tenancy to the petitioner in January 1956 is accepted, the tenancy must be held to be a lawful tenancy and the contention urged on behalf of the respondent must fail. On the admissions made in the affidavit in reply itself, it must be held that there was a tenancy created in the month of January 1956 in favour of the petitioner. On such tenancy being created, the petitioner as such tenant was lawfully entitled to reside in the said premises and not Chandravadan C. Mehta. In this view of the matter, the declaration that has been made is bad.
10. In the case of Maneklal v. Collector of Ahmedabad : AIR1954Bom235 the learned Chief Justice in delivering the judgment of a Division Bench of this Court has, in connection with the provisions of Section 5(2) of the Act, observed at p. 993 as follows:-.An inquiry is made obligatory in every case where a building or part thereof is to be requisitioned.... Whatever the nature of the building, if the Government wishes to requisition a building, it must hold the inquiry mentioned in Sub-section (2) of Section 5.
In dealing with the argument urged in that case that even though an inquiry is obligatory under the aforesaid provision a declaration is not obligatory, the learned Chief Justice observes as follows (p. 993) :-.It is clear that reading Sub-section (2) as a whole the position is that both an inquiry and the making of a declaration are obligatory.
In this case, the declaration as regards the person lawfully entitled to reside in the premises being bad, the condition precedent to the requisitioning of the premises has not been fulfilled and the order must be held to be bad and is liable to be set aside.
11. The petitioner has in the petition also challenged the order on the ground that no inquiry was in fact held or that in any event if there was an inquiry held, it was but a pretence of an inquiry. This ground was not pressed before me and it is not necessary for me to deal with the same.
12. It is further urged that the order was passed mala fide. There is no substance in this contention and it has not been seriously pressed before me. There is no substance in any of the other contentions urged on behalf of the petitioner.
13. In the result, the petitioner is entitled to succeed and I direct the issue of a writ of mandamus in terms of prayer (a) of the petition. The respondent to pay to the petitioner the costs of the petition, the costs being fixed at Rs. 325, inclusive of the costs of the notice.