S.T. Desai, C.J.
1. The petitioner is the owner of a bungalow in Gujarat Middle Class Co-operative Housing Society Ltd. (Shantinagar Society) at Wadaj Road in Ahmedabad. It was purchased by him in 1942. In his petition he has stated that since 1942 he has been occupying 'the said bungalow with his family in the south wing there'. It is also stated that he and his brother constitute a Joint Hindu Family and that he has no issue and his brother has three sons and seven daughters. Some of his brother's children according to the petitioner reside with him in the bungalow. One of the petitioner's brother's son got married some time before the petition and the petitioner constructed an additional bed-room on the terrace of the bungalow. That was done solely for the purpose of accommodation the newly married couple. The size of the room is 23' x 16' and the new construction cost him Rs. 7,000. In December 1959 the petitioner applied to the Ahmedabad Municipal Corporation for permission to occupy the newly constructed bedroom. The petitioner has also stated in his petition that 'The Municipal Corporation while granting permission to occupy asked the petitioner to fill the form for permission of the second respondent to occupy the newly constructed bed-room for themselves and in view of that without understanding the legal implication thereof the petitioner applied to second respondent for permission to occupy the newly constructed bed-room somewhere in February 1960 in the prescribed form and the petitioner has stated in the said prescribed form that the newly constructed room is required by the petitioner for personal occupation. Then it appears that the Requisition Department made inquiries in the matter and a statement of the petitioner was recorded. On 10th March 1960 the second respondent the Accommodation Officer made an order requisitioning the room for public purpose viz., for housing a Bombay State Government Servant and the petitioner was required to hand over possession of the room to the Inspector. The petitioner thereupon came to this Court on this petition.
2. The order of requisition made on 10th March 1960 was under Section 6 of the Bombay Land Requisition Act 1948 and the premises requisitioned are there stated to consist of 'One room newly built on first floor....'
3. Three contentions have been urged before us by Mr. Nanavati who appears for the petitioner. Firstly it is said that the room cannot constitute premises within the meaning of Section 6 (1) of the Bombay Land Requisition Act 1948 It is said that there is no independent passage to the room there is no both-room or lavatory attached to the room and there is no kitchen available for the room. It is also said that the petitioner and the members of his family have for a long time been in occupation of what has been described as southern wing of the bungalow.
4. In opposition to the rule the Accommodation Officer has made an affidavit and in his affidavit he has stated as under:
I say that in the course of the enquiries caused to be made by Government the petitioner unequivocally stated that he has been residing with his brother in House No. 175/176 at Patasa Pole. He also admitted that he has ration cards on those premises. He further admitted that the address of the bungalow in question does not appear on any ration card. In the course of the enquiries the petitioner also admitted that the said bungalow 30 in Shantinagar Society Wadaj consists of 4 rooms on the ground floor and two rooms on the first floor. Out of the said two rooms on the first floor the petitioner has newly constructed one large room admeasuring 23' x 16' and he gave an intimation of vacancy in respect of this newly constructed room. The enquiries caused to be made by Government have further shown that the entire ground floor of the said bungalow has remained vacant and further investigation into the said vacancy is being made by Government asset is believed that said vacancy is a suppressed vacancy.
5. We are satisfied with the correctness of the statement made by the petitioner on his petition that he has been occupying the ground floor of these premises and prefer to rely on the statement in that behalf made in the affidavit by the Accommodation Officer. Nor are we satisfied about the statement of the petitioner that the newly constructed room is so situated that it is not capable of being let out. Here also we prefer to rely on the affidavit of the Accommodation Officer. Now we could have decided the disputed questions of fact only after recording evidence. Mr. Nanavati has strongly urged before us that this is a fit case in which we should record evidence and permit the petitioner to establish the facts alleged by him and the correctness of which has been denied by the Accommodation Officer. In our opinion this is not a fit case in which any evidence should be recorded. We do not intend to be understood to say that this Court will not permit evidence to be led in every case which comes before us under Articles 226 and 227 of the Constitution. Of course there are cases where it would be desirable and indeed necessary in the interest of justice that evidence should be recorded in order to determine the disputes raised on the petition. This however is not one of those cases in which we would permit evidence to be recorded. On the facts 35 stated in the affidavits it is not possible to accede the contention that the room is not capable of being let out and therefore not premises. The contention must therefore be negatived.
6. It is next urged by Mr. Nanavati that the Department has not determined that the newly constructed bed-room amounts to premises within the meaning of that expression in the Bombay Land Requisition Act 1948 In our opinion there is no substance in this contention. As a part of the same contention it is urged that the petitioner had not given any intimation of vacancy. It is pointed out that in the form filled in by the petitioner he has stated that the room was not going to be let out and was constructed for personal occupation. It is some what difficult to see the sequitur of these facts. Moreover no contention of the nature now sought to be urged before us has been set out in the petition. The contention set out in the petition to which our attention was drawn by Mr. Nanavati relates to failure on the part of the Accommodation authorities to determine the question whether the bed-room in question is premises within the ambit of the Act. We have already held that there is no substance in that contention.
7. The third and last contention urged before us by Mr. Nanavati is that the room in question is exempted premises to which the Act does not apply meaning thereby that the authority had no power and jurisdiction to requisition the room. Section 19 of the Act relates to the rule-making powers of the State Government. Clause (iv) of Sub-section (2) of that section authorises the State Government to provide for:
x x x x x x x(iv) exemption of any land from the provision of Section 5 or 6 or both and the terms and conditions on which the land shall be exempted.
8. The Rules intituled 'The Bombay Land Requisition (Exemption) Rules 1948' were framed by the State Government in exercise of the powers conferred by Clause (iv) of Sub-section (2) of Section 19 of the Act on 5th November 1941. The rules which are material for the purpose of examining the present contention are Rules 4 and 5 and they are as under:
4. The buildings specified in the first column of the Schedule hereto appended are exempted from the provisions of the section or sections of the Act specified against them in the second column of the terms and conditions specified against them in the third column of the said Schedule.
5. If any of the terms and conditions specified in Rule 4 are not complied with the State Government may withdraw the exemption granted under Rule 4. The decision of Government shall be final.
9. The schedule annexed to the rules when they were framed in 1948 has been amended in some parts. Amended entry No. 1 of the Schedule with which we are here concerned is as under:
Description of Buildings Section or sec- Terms and conditions of
exempted tions of the Act exemption.
1 2 3
1 Buildings owned by a Co 5 and 6 (1) The members entitled to occupy or
operative Housing Society use the premises may with the premis
or the members thereof sion of such Officer as the State
under the bye-laws of Government may authorized in this
the Society. behalf occupy the same and they
shall not let out or part with the
possession of the premises or any
(2) No premises shall be kept vacant for
more than one month. If any pre
mises remain vacant for a longer
period the vacancy shall be reported
within seven days of the expiry of
the month to the officer authorized
under Section 6 of the Act.
10. It is not necessary to discuss at this stage Clause (1) of the entry in the third column of the Schedule relating to entry No. 1. We shall however turn a little later to the same when we examine one of the arguments urged before us by Mr. Nanavati.
11. One argument under this head urged by Mr. Nanavati is that the exemption attaches to every building owned by a Co-operative Housing Society as also to buildings owned by members of any such Society under the byelaws of the Society. It is said that Clauses (1) and (2) of the third column read together go to establish that the conditions mentioned therein are conditions subsequent and do not prevent the exemption attaching to any such building. The argument of the learned Advocate General on the other hand is that the two clauses read as a whole and in the context of Section 19(2) and the rules made thereunder show that it is condition precedent to the attaching of the exemption that an Application should in any event be made by the member who claims to be entitled to occupy or use the premises. It is argued that the exemption cannot attach before the permission is granted.
12. It is not necessary to examine the rival condition as the matter is capable of being disposed of on a point which lies in a very narrow compass.
13. When one reads Section 19(2) and the rules made thereunder along with the relevant part of the schedule the question must arise as to what is the coverage of the exemption. Reading the entry in the manner indicated above it seems to us abundantly clear that the exemption did not and does not attach to any building the whole of which or part of which was let out at the time of the coming into operation of the entry. In the view we take of the matter the result does not hinge upon whether the conditions mentioned in Clauses (1) and (2) are conditions precedent or conditions subsequent. This is for the simple reason that the crucial question is as to the purview of the exemption. Clause (1) brings out in language express and explicit that the exemption was not intended by the Legislature to attach to any properties of which the whole or any part was let out or of which possession had been parted with by the member. It is also abundantly clear from the provisions set out above that the object of granting this exemption to buildings owned by a Co-operative Housing Society or members of the Society was to give protection to the Society itself or to the members of the Society who being owners of the building wanted personally to occupy and use the entire building and who had not and did not intend to let out the same or part of the same. One answer to this given on behalf of the petitioner is that the letting out was before 1948 and the statutory exemption came into force only in that year. Therefore the condition about letting out of the property or part of the same could not embrace that part of the building which had been let out before 1941. It is said that to hold otherwise would be giving retrospective operation to the relevant provisions. In our opinion there is here no question of giving any retrospective or prospective operation to the provisions when we are examining the scope and purview of the exemptions. Then it is said that the condition is of occupation and not of exemption. It is impossible to read Clauses (1) and (2) of the Schedule in that manner.
14. It is then argued that additional construction is by itself building within the meaning of Section 19(2). There is no substance in this argument. We fail to see how can be said that a single room put up by the petitioner on the terrace can enjoy an exemption which admittedly cannot attach to that part of the property which has been let out by the petitioner himself. In our opinion the exemption must attach to the building as a whole and cannot attach to any part of the building. To put it differently the exemption would not embrace the case of any building a part of which had already been let out when the relevant provision came in force in 1948. There is noting in the language of any of the relevant provisions which would warrant a different meaning being ascribed to them. In the course of the argument we put it to Mr. Nanavati that if his present argument were to be accepted it would mean that the exemption could apply to a building owned by a member of Co-operative Housing Society even if he had already let out the building. The answer was in the affirmative. It is difficult to see how the relevant provisions can be interpreted to extend the exemption to any such building.
15. It is of some significance to note that the exemption is from the operation of not only Section 6 of the Act but also Section 5. The argument relating to vacancy cannot touch a case of requisitioning falling under Section 5. We put it to counsel if he could say why the exemption is also from operation of Section 5 even though that section does not deal with any vacancy. Very little could be said in answer to this. All that was said was that Section 5 speaks of a building as also a part of the building. In our opinion this does not meet the difficulty in the way of the petitioner.
16. Reliance has also been placed on behalf of the petitioner on Clause (1) of the third column of the Schedule to the Rules as they were framed in 1948. That clause which has now been amended in the manner set out by us was as under:
(1) The premises may be occupied by the members owning the same or may be let to members of the Society in accordance with the bye-law of the Society.
17. The suggestion here is that there could be letting out of the whole or even a part of the building to a member of the Society in accordance with the bye-laws of the Society before the amendment of this clause in 1959. We agree that Clause (1) did rule that letting out-of the premises was permitted provided it was confined to members of the Society. But we fail to see how this restricted letting out which was permitted under that sub-clause can affect or throw any light on the construction of Sub-clause (1) as it now abides and the relevant provisions with which we are concerned. There is no substance in this argument.
18. In the result the petition fails and will be dismissed. Rule will be discharged with costs.