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The State of Bombay Vs. Kulsumbai Jafferali G. Padamsee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 35 of 1958 and Miscellaneous application No. 336 of 1957
Judge
Reported in(1959)61BOMLR263
AppellantThe State of Bombay
RespondentKulsumbai Jafferali G. Padamsee
DispositionAppeal allowed
Excerpt:
.....requisition act (bom. xxxiii of 1948), sections 4(3), 6(4)(a), 6(1), 2(1) & (2)-bombay land requisition ordinance, 1947, section 4(1)-premises let out prior to january 1947 but thereafter till november 1955 used as lodging house-order of requisition made in october 1957-landlord alleging that premises occupied by licensees on date of order-whether premises intended to be let within section 4(3) and therefore premises liable to be requisitioned-notification under section 6(1) whether necessary before section 6 can apply to scheduled areas mentioned in section 2(1).;certain rooms in a building situated in the city of bombay were let out by the landlord before january 1, 1947. from january 1, 1947, to november 1955 these rooms were used as a lodging house. after november 1955 they..........quantified at rs. 375. inasmuch as the state has won, the order for costs of the trial of the petition in the lower court will be that the respondent should pay to the appellant costs of the petition fixed at rs. 375, and the respondent will also pay to the appellant costs of this appeal.17. the advocate general agrees not to enforce the requisition order for three weeks in order to enable the appellant to file a petition to appeal to the supreme court, if so advised.18. liberty to the appellant's solicitors to withdraw the sum of rs. 500 deposited in court.19. in appeals nos. 34 and 36 of 1958 we make the same order, except that the figure of costs will be rs. 325 instead of rs. 375.
Judgment:

M.C. Chagla, C.J.

1. Various interesting and ingenious points arise in this appeal. That is to be expected because this is an appeal from a petition challenging a requisition order, and so long as the Requisition Act is on the statute book and so long as requisition orders are made, novel and ingenious arguments will always be advanced before the Court.

2. The facts that give rise to this appeal are that the impugned requisition order was passed on October 10, 1957, under Section 6(4)(a) of the Requisition Act. The order stated that the vacancy had occurred in the month of March 1957, there was a declaration by the Government that the premises had become vacant after December 4, 1947, and the premises were being requisitioned for a public purpose, viz., for housing a Bombay State Government servant. The premises concerned are three rooms Nos. Fl, F2 and F3 on the 5th floor of a building known as Chhotu Terrace situated at 105, Colaba Road, Bombay 5. The facts with regard to these premises are that from January 1, 1947, to November 1955 these three rooms were used as a lodging house. After November 1955 they were occupied by certain persons, and it is a matter in dispute between the parties whether the occupation by these persons was as tenants or as licensees. In view of the decision we have come to on the main question argued in this appeal, it is unnecessary to resolve that dispute. It is also admitted for the purposes of this appeal that these three rooms were in fact let out before January 1, 1947, and the order was challenged by the petitioner on the ground that these three rooms did not constitute premises within the meaning of the Act. What was urged was that these premises were in fact not let out at the date of the requisition order because the contention was that they were in possession of a licensee, and it was further urged that these premises were not intended to be let because they had never been in fact let after the Ordinance came into force on December 4, 1947, or the Act came into force on April 11, 1948.

3. In order to determine whether these premises were liable to be requisitioned and in order to determine whether the Government could exercise the power to requisition it conferred upon it under Section 6, it is necessary to determine that the premises were situated in the area to which the Act applies and also that the premises sought to be requisitioned were premises as defined by the Act, Under this head of the argument we are only considering the question as to whether the three rooms were premises within the meaning of the Act. It is undoubtedly true that the relevant point of time to be taken into consideration is the date when the power to requisition is exercised. At that date not only must there be a vacancy as required by the Act, but the vacancy must be with reference to the premises as defined by the Act. The declaration of vacancy is conclusive, but whether the premises are premises within the meaning of the Act is a justiciable issue, and what is urged by the petitioner is that at the date when the power was exercised the three rooms did not fall within the ambit of the definition given by Section 4(3). Now, 'premises', to the extent relevant, is denned as any building or part of a building let or intended to be let, and it is clear that on October 10, 1957, assuming for the purpose of this argument that the premises were given to licensees, the premises were in fact not let. So the narrow question that we have to consider is whether it could be said of these premises that they were intended to be let, and what calls for our decision is the meaning to be attached to the expression 'intended to be let.'

4. Now, this is not a matter of first impression. The matter is concluded by the decision of the Court of Appeal in State of Bombay v. Virendra Motabhoy : AIR1951Bom175 . It is necessary carefully to consider that judgment. In that case one Mrs. Coultrup was a tenant of a flat on the first floor of a building. Her contractual tenancy was terminated on December 31, 1947, but Mrs. Coultrup continued to occupy the flat as a statutory tenant right up to January 1949. In the second week of January 1949 she left the premises and someone else went into possession, and Government then requisitioned the premises. The petitioners challenged the requisition order and Mr. Justice Bhagwati held that the order was bad because at the date when the order was passed the premises were not let and the landlord had clearly indicated that he did not intend to let the flat and therefore the premises did not fall under one or the other head of the definition. The matter came in appeal and the Court of appeal held that the word 'intended' imported a volition on the part of the landlord, but that volition was not a fluctuating or an ambulatory volition and if the volition was once expressed by the owner or the landlord quae the building, then that volition becomes an incident of the building itself, and it was not open then to the landlord by changing his intention from time to time to say that the particular building was not intended to be let. Applying this test we hold that inasmuch as the landlord had clearly expressed his volition by letting out these premises to Mrs. Coultrup who was at one time a contractual tenant, it was not open to the landlord subsequently to turn round and say that he had altered his intention and he no longer intended to let out the premises. One distinguishing feature on which great emphasis has been laid by Mr. Bhabha, and rightly so, and which has also been emphasised by the learned Judge below, is that in the case of Virendra Motabhoy there was in fact a letting after the Act came into force because, as pointed out, Mrs. Coultrup was a contractual tenant upto December 31, 1947. What is urged before us, as it was urged before the Court below, is that it is necessary that there must be a volition expressed by the landlord after the Act conies into force, and that the fact that a volition has been expressed before the coining into force of the Act is irrelevant for the purpose of determining whether the premises were intended to be let. It is, therefore, pointed out that in this case the premises were used as a lodging house from January 1, 1947, whereas the Ordinance came into force on December 4, 1947, and the Act came into force on April 11, 1948, and for the purpose of this argument there has been no letting after the rent law came into force and even if the landlord had let the premises before January 1, 1947, that letting cannot be taken into consideration for determining the volition referred to in Motabhoy's case.

5. Turning to Section 4(3) it is clear that the premises which were sought to be brought within the purview of the Government's requisitioning power were the premises as denned by the Act. Whatever buildings were there which satisfied the definition of premises when the Act came into force became liable to be requisitioned. Therefore, every building at the date when the Act came into force which was actually let undoubtedly came within the purview of Government's power. That is conceded by Mr. Bhabha. It is difficult to understand why, if a building which was actually let came within the purview of the Government's power a building which at that date was intended to be let did not equally come within the purview of the Government's power. It should be made clear that the interpretation which we are putting upon the expression 'intended to be let' is not intended to give any retrospective effect to the Act at all. What we are trying to construe is the definition given in a statute which applies to certain buildings from the date when it comes into force. If any building had been let by the landlord before the Act came into force, could it possibly be said that that was not a building intended to be let, as the expression has been understood and defined in Motabhoy's case? The simple question that the Court has to ask is-here is a building which was not always occupied by the landlord but which the landlord himself had let out and, to use a rather popular expression, which he had by his own action made lettable. If there was such a building at the date when the Act came into force, even though at that date it was not actually let, could it possibly be suggested that that was a building which the landlord had never intended to let? Could it be said of that building that that volition which is described in Motabhoy's case had never been exercised by the landlord quae this building? In our opinion, the contention advanced by Mr. Bhabha is as untenable as the argument that only those premises come within the purview of the Act as were constructed after the Act came into force, because if the Act applies to buildings which were already in existence, then the particular incident which is the result of the volition of the landlord having attached to the building, the building that existed at the date when the Act came into force was a building with a certain incident attached to it and it is that incident which made the building liable to be requisitioned and which made it possible for the State Government to exercise its power.

6. The learned Judge has drawn attention to a possible hardship that may result by our giving this interpretation to the expression 'intended to be let', and the hardship suggested is that you may have a building which for 60 years has been occupied by the landlord himself and which before 60 years might have been let out for a short time to a tenant, and the learned Judge says that it would indeed be hard and unfair to compel the landlord in the case of such a building to the overriding powers of the State. With respect to the learned Judge, we do not see any hardship even in the extreme case taken by him. It is not as if the Bombay Land Requisition Act of 1948 can drive a landlord out of his home and hearth and occupy his residence when he is occupying it. The whole object of the Land Requisition Act is to bring about equitable distribution of premises. What is the hardship if the landlord, after occupying the property for 60 years, leaves it or thinks of letting it out to a tenant? In such a case there is a vacancy and instead of the landlord regulating the vacancy the State steps in and says-'' I will regulate it because I know what the public interest demands.' Apart from that, the Requisition Act is a piece of social legislation and we must construe its various provisions in a manner which would help the achievement of the object which the Legislature had in mind rather than retard it.

7. Now, the reason for passing this Act was that it was felt in 1948 that there was a shortage of housing and that it would be contrary to public interest to allow vacancies to be filled up in any manner that the landlord thought proper, and therefore the State acquired to itself the undoubtedly drastic powers which it has under the Land Requisition Act, 1948. But the object was to regulate all vacancies which occurred after the Act came into force, and if we were to accept Mr. Bhabha's contention, a large number of vacancies would be ruled out from the operation of the Act, because according to him the only buildings which could be requisitioned were the buildings which were actually let at the date when the Ordinance or the Act came into force. Even if there were a large number of vacancies at that date, the State could not requisition those buildings if the landlord subsequent to the relevant date did not actually let the building or, Mr. Bhabha concedes, showed an intention to let the building. It is difficult to understand what social purpose was sought to be served by excluding from the category of buildings which could be requisitioned, buildings which in fact fell vacant and buildings which in fact were let out in the past. Nor is it possible to understand what hardship or anomaly could be caused by including these buildings within the purview of the State's requisitioning power. Undoubtedly, if the language of the section is clear, the Court cannot be influenced by social purpose or the object which the Legislature had in mind. But when the expression 'intended to be let' is capable of being construed in a wider manner and that wider manner helps us to bring about the result which the Legislature had in mind, then surely we should accept the wider meaning rather than the narrower meaning which we are asked to place upon this expression.

8. It is then said that on the facts of this case the three rooms were in the exempted class, because Section 4(3) exempts from the definition of 'premises' a room or other accommodation in a hotel or lodging house, and it is said that from January 1, 1947, to November 1955 these rooms were in a lodging house and therefore they fell within the exempted category, and Mr. Bhabha does not understand how they could come back within the category of premises which could be requisitioned without some provision in the law. It seems to us that the explanation is very simple. It is quite clear that these premises could not be requisitioned from January 1, 1947, to November 1955, because they were exempted by a specific provision of the Land Requisition Act. But when they ceased to be rooms in a lodging house and if the interpretation that we are placing upon the expression 'intended to be let' is correct, then they fell within the category of 'premises' and not within the exempted class, and at the relevant date when the order of requisition was passed they were admittedly not rooms in a lodging house; they were premises within the meaning of the definition because they were a part of the building which, although not let, were intended to be let.

9. We are, therefore, of the opinion, with respect to the learned Judge, that although on the facts Motabhoy's case may not apply to the question that we have to decide in this appeal, the ratio decidendi of that case applies to the different facts which we have to consider, and on that ratio we must hold that the premises in question were premises intended to be let because they had in fact been let before January 1, 1947.

10. The second contention urged by Mr. Bhabha is that the declaration made on the face of the order that they became vacant after December 4, 1947, is not a proper declaration required by law, and the contention is that the Bombay Land Requisition Act came into force on April 11, 1948, and the date of vacancy under Section 6(4)(a) must be a date after April 11, 1948. It may be pointed out that the date December 4, 1947, is mentioned in the order with reference to the Ordinance which came into force on that date, and it is urged that the date with reference to the Ordinance is not the relevant date as required by an order issued under Section 6 of the Requisition Act. It is unnecessary to consider this question because it is covered by a judgment recently delivered by my brother Mr. Justice S.T. Desai and Mr. Justice Miabhoy in Shri Jagir Singh v. The State of Bombay (1958) O.C.J. Appeal No. 44 of 1958, decided by S.T. Desai and Miabhoy JJ., on June 23, 1958 (Unrep.).

11. The third point urged is that on a true construction of Section 6, it applies only to areas which have not been notified under Section 2(2) and not to areas specified in the Schedule under Section 2(1) of the said Act. Turning to the scheme of the Act, Section 2(1) extends the whole of the Act to the areas specified in the Schedule, and the city of Bombay is one of the areas mentioned in the Schedule. Section 2(2) empowers the State Government, by notification in the Official Gazette, to extend any or all of the provisions of this Act to any other area and on such date as may be specified in the notification. Therefore, going by this section alone, it is clear that the scheme of the Act was to have certain, what might be called, scheduled areas to which the Act applied and to leave it to the State Government by notification to apply the whole Act or certain provisions of it to what might be described as the non-scheduled areas. Turning to Section 6(1), it provides:

If any premises situate in an area specified by the State Government by notification in the Official Gazette, are vacant on the date of such notification....

and then follow the words with which we are not concerned, and ultimately power is given to the State Government to requisition premises. A notification under what is in substance this section was issued on December 4, 1947, by which the city of Bombay was described as a specified area for the purpose of the section. In fact, the notification was issued under the Ordinance, but it is not disputed that Section 4(2) of the Ordinance corresponds to Section 6(1) of the Act and the notification issued under the Ordinance was continued under the Act which took the place of the Ordinance. Therefore, what this section did was to provide that even in the scheduled areas the provisions of Section 6 were not automatically to apply. A notification by Government was necessary before the provisions of Section 6(1) could apply to a scheduled area as a whole or any part of it, and therefore but for this notification Section 6 could not have been made applicable to the city of Bombay. Although the Act applied to the city of Bombay, as far as Section 6 was concerned, a special notification was necessary to make its provisions applicable to the city of Bombay.

12. Now, what is urged is that the notification referred to in Section 6 is the same as the notification referred to in Section 2(2), and therefore a curious argument is advanced that Section 6 can only apply to the non-scheduled area mentioned in Section 2(2) when a notification is issued extending certain provisions of the Act to that area, but Section 6 cannot apply to the scheduled areas mentioned in Section 2(1). The fallacy underlying this argument is to equate the notification referred to in Section 2(2) with the notification referred to in Section 6(1). The notification referred to in Section 6(1) is an entirely different notification to the notification mentioned in Section 2(2). Mr. Bhabha says that there is a drafting error in this section and that error is brought about by the provisions of the earlier Ordinance which replaced this Act and the draftsman did not realise or understand the different scheme adopted in the Ordinance and the scheme adopted in the Act. 'We do not agree. Turning to the Ordinance, the scheme adopted in the Ordinance, which is Ordinance V of 1947, was that the Ordinance extended to the whole of the Province of Bombay, and by Section 4, which corresponded to Section 6 of the Act, that section was only made applicable provided a notification was issued to that effect by the State Government. Therefore, the scheme of the Ordinance was to make the Ordinance applicable to the whole Province of Bombay, but with regard to Section 4 to make it applicable only to such areas as may be specified in the notification. As pointed out, the scheme of the Act undoubtedly is different. The scheme is not to make the Act applicable to the whole State of Bombay, but to make the Act applicable only to scheduled areas, to make the Act applicable to non-scheduled areas by notification, and even with regard to the scheduled areas to make the provisions of Section 6 applicable only to such portion of the scheduled areas as may be specified in a notification to be issued under Section 6 of the Act or which has been issued under Section 4 of Ordinance V of 1947.

13. Now, some support is lent to Mr. Bhabha's contention by certain observations made in the judgment of the Court of Appeal, and I must take the whole blame for it myself, because in delivering the judgment I was considering the scheme of the Act and I did say that there was a drafting error in Section 6(1) because it refers to premises situated in the areas specified by the Provincial Government by a notification in the Official Gazette, and it does not refer to areas specified by the Act itself under Section 2(1); but it is clear that the object of the Act was to apply to Section 6 both the areas covered by Section 2(1) and the areas covered by Section 2(2). Therefore, I cannot blame Mr. Bhabha for putting forward this argument relying on the observation in the judgment delivered by me in Motabhoy's case. But it is clear from the judgment that this particular point was never argued, and what the judgment was doing was taking a bird's eye view of the various provisions of the Ordinance and the Act in order to construe the particular section which called for construction. Now that the point has been directly raised, we have looked more carefully into it and we are of the opinion that the particular observation is not justified by the language used in the Act.

14. The result is that all the three contentions raised by Mr. Bhabha fail.

15. In fairness to Mr. Bhabha we must point out, in case the matter goes higher, that the question as to whether there was leave and license granted to the persons who occupied these rooms after November 1955 or there was a tenancy, has not been considered by us. The Advocate General wanted to satisfy us that the judgment of the learned Judge also on this aspect was erroneous. But in view of our decision that a letting of these rooms prior to January 1, 1947, is sufficient to permit the State Government to exercise its power under Section 6, it is unnecessary to decide that particular question.

16. The result is that the appeal succeeds and must be allowed with costs. The order of the trial Court will be set aside. The learned Judge directed that the State should pay to the petitioner costs which he quantified at Rs. 375. Inasmuch as the State has won, the order for costs of the trial of the petition in the lower Court will be that the respondent should pay to the appellant costs of the petition fixed at Rs. 375, and the respondent will also pay to the appellant costs of this appeal.

17. The Advocate General agrees not to enforce the requisition order for three weeks in order to enable the appellant to file a petition to appeal to the Supreme Court, if so advised.

18. Liberty to the appellant's solicitors to withdraw the sum of Rs. 500 deposited in Court.

19. In Appeals Nos. 34 and 36 of 1958 we make the same order, except that the figure of costs will be Rs. 325 instead of Rs. 375.


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