J.M. Shelat, C.J.
1. This petition challenges the validity of the order of requisition dated December 8 1961 passed under Section 6 of the Bombay Land Requisition Act 1948.
2. The petitioner is the owner of bungalow No. 56 in Brahman Mitramandal Co-operative Society Ellis Bridge Ahmedabad. The bungalow consists of certain rooms in the bungalow itself and a garage. This bungalow had been let out by the petitioner for the last several years. It was first let out to one Jayantilal Shah since deceased on a monthly rent of Rs. 90/and since his death the bungalow as also the garage remained in the occupation of his widow Subhadraben and the heirs and legal representatives of the said Jayantilal Shah. According to the petition the petitioner wanted the bungalow for his personal occupation as the petitioners wife was advised to stay in this bungalow situate as it is in Ellis Bridge area which is a more ventilated and open area than the area where the petitioner is at present residing as the petitioners wife is suffering from coronary insufficiency and also because his two sons are desirous of coming back to and staying in Ahmedabad with the petitioner. The petitioner therefore filed suit No. 1658 of 1959 in the Court of Small Causes at Ahmedabad against the said Subhadraben who was in occupation as the tenant on the ground of personal and bona fide requirement. The suit was compromised by the parties upon certain terms and conditions and the Court passes a decree in terms of the said compromise. The terms of compromise provided (1) Out of the suit property bungalow the possession of the ground floor Dehla or garage situated on the lower part should be handed over by the defendants to the plaintiff on 30-7-62; (2) the defendants have handed over the possession of the remaining suit properties to the plaintiff to-day; (3) the account of rent and mesne profits till to-day is settled and the remaining is allowed to let off. On October 31 1961 i.e. the day after the consent decree was passed the petitioner wrote to the Controller of Accommodation to the effect that the tenant had handed over vacant possession of the said bungalow to him except the garage. On November 4 1961 the petitioner received a letter from the Controller of Accommodation that the aforesaid intimation of vacancy had not been given in the prescribed form and that the same should be done. Consequently of November 14 1961 the petitioner sent to the Controller of Accommodation an intimation as required by Sub-section (1) of Section 6 of the Act in the prescribed form stating therein particulars and details of the premises in respect of which the vacancy had occurred as a result of the said consent decree and the fact of the tenant having delivered over vacant possession thereof to the petitioner. It would appear that at the instance of the petitioner the Controller of Accommodation gave a personal hearing to the petitioner and his advocate when certain further particulars were called for by the Controller and which particulars were thereafter communicated to him by a letter dated December 7 1961 On December 8 1961 the impugned order was passed in exercise of the power conferred by Clause (a) of Sub-section (4) of Section 6 of the Act thereby requisitioning the premises in question for a public purpose namely for housing a State Government servant. The order was passed By order and in the name of the Governor of Gujarat and was authenticated by one Parmar the Accommodation Officer. It is this order which has been challenged in this petition.
3. Mr. Thakore for the petitioner raised six contentions challenging the validity of the impugned order. These contentions were-
(1) that the order was invalid as there was no vacancy as contemplated by Section 6(1) and therefore there was no power to requisition the premises in question;
(2) that the order was invalid as there was no power to requisition the premises by reason of the fact that that power came to an end on the expiry of thirty days after intimation of vacancy was given and the order was passed after a lapse of more than thirty days;
(3) that the order violated principles of natural justice inasmuch as the petitioner and his advocate were heard by one officer namely the said Pathak who was then the Controller of Accomodation and to whom also further particulars were communicated on December 7 1961 while the impugned order was passed by another officer who had not heard the petitioner and therefore did not have the benefit of the explanation which the petitioner gave for not requisitioning the property;
(4) that the order was without jurisdiction inasmuch as the premises in respect of which possession was obtained through a decree of the Civil (Court could not be subject to the power of requisition;
(5) that the impugned order was bad as it was passed mala fide in utter disregard of the decree passed by the Civil Court thereby flouting such a decree; and lastly
(6) that, the order was bad inasmuch as the premises in question were exempted premises under the Bombay Land Requisition (Exemption) Rules 1948 and were not subject to the operation of Sections 5 and 6 of the Act under rules 4 and 5 and the schedule thereto.
We propose to deal with these contentions in the order in which they were propounded before us by Mr. Thakore.
4. As regards the first contention that there was no vacancy as contemplated by Section 6(1) and the order consequently was bad we must first turn to the definition of premises in Section 4(3). The definition provides that premises means any building or part of a building let or intended to be let separately including the garden grounds garages and out-houses if any appurtenant to such building or part of a building. Section 6(1) then provides that 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 wherever any such premises are vacant after such date by reason of the landlord the tenant or the sub-tenant as the case may be ceasing to occupy the premises or by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other reason the landlord of such premises shall give intimation thereof in the prescribed form to an officer authorised in that behalf by the State Government. Sub-section (3) of Section 6 then provides that a landlord shall not without the permission of the State Government let occupy or permit to be occupied such premises before giving intimation and for a period of one month from the date on which intimation is received. Sub-section (4) under which the impugned order has been passed provides that whether or not intimation as contemplated by Sub-section (1) is given the State Government may by order in writing requisition the premises for any public purpose in such manner as may appear to it to be expedient. Clause (a) to the Explanation to that section provides that premises which are in the occupation of the landlord the tenant or the subtenant as the case may be shall be deemed to be or become vacant when such landlord ceases to be in occupation or when such tenant or sub-tenant ceases to be in occupation upon termination of his tenancy eviction assignment or transfer in any other manner of his interest in the premises otherwise notwithstanding any instrument or occupation by any other person prior to the date when such landlord tenant or sub-tenant so ceases to be in occupation.
5. The argument advanced by Mr. Thakore was that though the building in question would be premises within the meaning of the Act there was a single tenancy of the entire bungalow including the garage. Consequently there would be vacancy contemplated by Section 6(1) and (4) provided the entire premises let out to the tenant had become vacant on the date of the impugned order. The argument was that under the consent decree it was only the bungalow proper of which possession was to be delivered and was in fact delivered on October 30 1961 but the tenant was to hand over possession of the garage which was part of the premises leased to the tenant on July 30 1962 As possession of the garage was not to be given till July 1962 there was no vacancy of the premises occupied by the tenant and therefore an order of requisition could not be passed under Section 6(4). In our view there is no substance in this contention. The consent decree as already stated provided that the tenants were to hand over possession of the premises except the garage on October 30 1961 The terms of consent signed on that day both by the parties and their respective advocates show that possession of the bungalow proper was actually handed over by the tenant on that day before the decree was actually taken in the Court and the only part which was left in possession of the tenant was the garage of which possession was agreed to be handed over on July 30 1962 The effect of the consent decree was assuming the tenancy was a single and an integrated tenancy that the agreement incorporated in the terms of consent whereby the tenant was entitled to retain possession of the garage until July 30 1962 split up the premises and so far as the garage was concerned the tenant became entitled to retain possession thereof till July 30 1962 by virtue of and under the consent decree. Whether the arrangement arrived at by the parties on that day and recorded in the terms of compromise amounted to a separate contract of tenancy in respect of the garage or to a mere concession or licence there can be no doubt that the premises which were leased to the tenant assuming that the tenancy thereof was a single one were actually split up and that being so it would not be possible to contend as Mr. Thakore sought to do that the premises being one and indivisible there was no vacancy on the ground only that possession of part of the aforesaid premises namely the garage was not handed over by the tenant to the landlord on that day. In that view Mr. Thakores contention has to be rejected.
6. As regards the second contention that the impugned order was passed more than thirty days after intimation of vacancy there is in our view no substance in this contention also. It is no doubt true that the petitioner had sent a letter on October 30 1961 to the Accommodation Officer intimating thereby that he had obtained possession of the bungalow in question from the tenant. The Accommodation Officer however by his letter dated November 4 1961 expressly stated to the petitioner that he had not given the requisite information in the prescribed form and therefore such information was not according to law and had directed the petitioner to give information regarding the vacancy in the statement enclosed with the letter. It was then on November 14 1961 that the petitioner filled up the prescribed form and thereby gave intimation of the vacancy of the premises caused as a result of the aforesaid decree. If the letter of October 31 1961 were to be treated as an intimation as contemplated by Section 6(1) no doubt the order dated December 8 1961 would be very much after the expiry of thirty days from the date of the intimation and in such an event it may perhaps be contended that the exercise of the power of requisition being after the expiry of more than thirty days such exercise was not in accordance with the provisions of Section 6. Such a contention however cannot be sustained for the reason that Sub-section (1) of Section 6 requires in explicit terms that the landlord of the premises in question has to give intimation of the vacancy in the prescribed form to an officer authorised in this behalf by the State Government. The letter of October 31 1961 not being in the prescribed form and also not containing the particulars which are required to be filled in the prescribed form cannot be treated as an intimation contemplated by Section 6 and therefore only that intimation which was communicated to the relevant officer on November 14 1961 which the petitioner did by filling in the prescribed form can be treated as the intimation required by Section 6(1) and the period of thirty days therefore has to be calculated as from November 14 1961 and not from October 31 1961 This contention therefore must be regarded as without any basis.
7. The third contention urged by Mr. Thakore was that the impugned order was passed in violation of the rules of natural justice in the sense that whereas hearing was given to the petitioner by one officer the order in question was passed by another officer. There is a total misapprehension in regard to this contention because as already stated the order in clear terms states that it was passed by the order and in the name of the Governor of Gujarat. It is true that the order is under the signature of the Accommodation Officer one Parmar but that signature of Parmar is obviously for the purpose of authenticating the order as required by Article 166 of the Constitution. There is therefore no question of any breach of principles of natural justice in the sense that though the petitioner was heard by one officer the impugned order was passed by another officer. Paragraph 11 of the petition on which this contention was founded by Mr. Thakore itself contains self-contradictory statement. That paragraph states that one Pathak the then Controller of Accommodation went on leave some time on or after the 9th December 1961 and that it seems that thereafter one Mr. Parmar Accommodation Officer without perusing the papers and without giving any hearing and without considering any of the grounds passed an order of requisition of this premises on or about the 8th December 1961 and that therefore the petitioner felt that his case was not considered by the said Parmar and the order of requisition was passed in disregard of the facts of the case. If Pathak went on leave on December 9 1961 obviously the order dated December 8 1961 was not passed after he went on leave. The affidavit in reply further more makes it clear that the impugned order was passed before Pathak went on leave and that it was passed after Pathak had applied his mind to the facts and circumstances of the case. There is therefore not only no legal basis for this contention but that it was obviously raised on a misapprehension also with regard to facts.
8. As regards the fourth and the fifth contentions of Mr. Thakore there is equally no substance. The argument was that inasmuch as a Civil Court had passed a decree in favour of the landlord directing eviction of the tenant on the ground of personal and bona fide requirement of the landlord the impugned order of requisitioning the premises amounted to flouting the decree. Mr. Thakore also argued that where possession has been awarded to a landlord under a decree of a Civil Court there would be no vacancy within the meaning of Section 6(1) and therefore an order of requisitioning cannot be passed. He also argued that even though the petitioner had given an intimation with regard to the vacancy such an intimation was given under a misapprehension of law and therefore would not constitute estoppel against him. The answer to these contentions is to be found in the provisions of Section 6(1). Under that section if any vacancy arises as a result of a landlord a tenant or a sub-tenant as the case may be ceasing to occupy the premises in question or by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other reason the landlord is obliged thereunder to give an intimation thereof in the prescribed form. The position is still more clarified by Clause (a) of the Explanation to that section which in clear terms provides that premises shall be deemed to be or become vacant when inter alia a tenant ceases to be in occupation upon termination of his tenancy or eviction. Even though therefore a tenant is evicted from the premises in question as a result of a decree passed by a Court and as a result of such eviction possession of such premises is delivered over by such tenant to his landlord there would be vacancy within the meaning of Section 6(1) and Clause (a) of the Explanation thereto. It may be that the decree of eviction may have been passed by a Court of law on the ground of personal and bona fide requirement of the landlord but there is nothing either in Sub-section (1) of Section 6 or in the Explanation which would support the contention of Mr. Thakore that such eviction would not cause vacancy within the meaning of the section. There is equally nothing in the provisions of Section 6 to justify the contention that upon intimation of such vacancy if the order of requisitioning is passed the exercise of the power to requisition under Sub-section (4) of Section 6 would amount to flouting the decree of the Civil Court. The provisions of Section 6 are clear that even in such a case there would be vacancy of the premises in question in respect of which it is incumbent upon the landlord to give intimation and in regard to which an order under Sub-section (4) of Section 6 can be passed by the relevant authority. Since the exercise of power to requisition the premises under Sub-section (4) can be exercised by the relevant authority without such exercise of power amounting to flouting the decree of a Court of law the contention that the exercise of power was mala fide must also necessarily fall. Mr. Thakore was not in a position to point out any provision in this Act or in any other Act which would support his contention that no order under Sub-section (4) of Section 6 can be passed where possession has been awarded to a landlord on the ground of personal and bona fide requirement.
9. The last contention urged by Mr. Thakore and which requires some consideration was that the impugned order was without jurisdiction as the premises in question were exempted premises exempted from the operation of Sections 5 and 6 of the Act under the aforesaid rules framed by the State Government under Section 19(2) of the Act. The question clearly is one of interpretation of the rules and we have to decide on such interpretation whether the premises already let out to a tenant who was not a member of a co-operative housing society of which the landlord was a member at the time when the rules were brought into force are entitled to exemption. Section 19(1) of the Act empowers the State Government to make rules to carry into effect the purposes of the Act. Clause (iv) of Sub-section (2) thereof inter alia enables the State Government to frame rules which may provide for exemption of any land from the provisions of Section 5 or 6 or both and the terms and conditions on which the land shall be exempted. Rules 4 and 5 are as follows:
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 on 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 the Government shall be final.
It is clear that the buildings specified in the schedule to these rules would enjoy exemption to the extent of the terms and conditions set out in the third column thereof and the exemption attaching to such buildings on those terms and conditions is from the operation of Sections 5 and 6 of the Act. The terms and conditions we are informed have been amended from time to time but as they originally stood before the amendment they were as follows:
1. The premises may be occupied by the members owning the same or may be let to the members of the society in accordance with the bye-laws of the society.
2. No premises shall be kept vacant for more than one month. If any premises remain
vacant for a longer period the vacancy shall be reported within seven days of the expiry of the month to the officer authorised under Section 6 of the Act.
3. Where the premises are let under Clause (1) to another member of the society after the date of the coming into operation of these rules an intimation shall be given to the officer authorised under Section 6 of the Act within seven days from the date of letting the premises giving particulars regarding the premises including the name of the date of letting to the out-going tenant and the date of occupation of the in-coming tenant.
10. In considering the extent and coverage of rules 4 and 5 and the aforesaid schedule we have to consider the object and scope of these rules. The object no doubt was to grant exemption to buildings owned by a cooperative housing society or its members. But the extent of the exemption is limited to the terms and conditions therein set out. Term No. 1 obviously applies to buildings which can be occupied by members owning the same. The term also permits such members owning the buildings to let them out to the members of the society. In either event they would be exempt from the operation of Sections 5 and 6 and the Government would not be entitled to requisition such buildings. But the landlord can occupy or let out to another member provided the building in question is not occupied and therefore clearly term No. 1 can only apply to a building which is unoccupied and is not already leased to a tenant. Term No. 3 also contemplates a building which has not been leased to a tenant for it cannot be let out to a member if it is occupied by a tenant. This is also clear from the latter part of that term which requires an intimation to be given inter alia of the name of the out-going tenant and of the incoming tenant who must be a member of the society. Term No. 2 also envisages only vacant premises for otherwise there would be no question of any vacancy being kept for more than one month. These terms therefore clearly would not apply to premises which are leased to tenants. These terms and conditions were later on amended. It is agreed that it is the amended terms which would apply to the present case and the amended terms and conditions Nos. 1 and 2 which would apply are as follows:
1. The members entitled to occupy or use the premises may with the permission of such officer as the State Government may authorise in this behalf occupy the same and they shall not let out or part with the possession of the premises or any part thereof.
2. No premises shall be kept vacant for more than one month. If any premises remain vacant for a longer period the vacancy shall be reported within seven days of the expiry of the month to the officer authorised under Section 6 of the Act.
It is again clear that the exemption attached to such buildings is to the extent provided in these terms and conditions. Term No. 1 provides that a member entitled to occupy or use the premises may occupy them with the permission of the authorised officer but it is obvious that neither the officer nor such member has the right to evict a tenant if such tenant is in occupation of the premises under a lease and therefore obviously the term envisages premises which are not let out. Term No. 2 also brings out this fact clearly for there would be no question of a vacancy being kept for more than a month where the premises have been let out to a tenant. It is thus clear that the buildings which enjoy exemption from the operation of Sections 5 and 6 are those which are not leased out to tenants i.e. premises which a member is entitled to occupy or use. Secondly such a member has to apply to the authorised officer and it is only if permission is granted that he can occupy such premises. The conclusion that under these terms and conditions exemption attaches only to those buildings which are not leased to tenants appears to be fortified by the fact that the exemption is from operation of both Sections 5 and 6. Under Section 5 the State Government is authorised to requisition any land if in its opinion it is necessary or expedient so to do. Under Section 4(1) land includes buildings. But the proviso to Section 5 restricts the power to requisition inasmuch as it provides 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. A building which is occupied by a tenant continuously for six months immediately before the date of the order is thus exempt from being requisitioned. Since such a building where a tenant has been residing is already exempt there would be no question of such a building being again exempted under rules 4 and 5 and the schedule to these rules. Such a building where a tenant has resided for six months before the date of the order would not fall therefore under these rules. It follows therefore that a building in respect of which exemption under the rules is claimed must not be one which is leased to a tenant and where a tenant has been residing for six months before the date of the impugned order. Reading Sections 5 and 6 and the schedule thereto it seems clear (1) that the rules apply to premises which have not been leased to a tenant and (2) the exemption attaches to premises in respect of which a member of the co-operative housing society has applied for permission from the authorised officer. It is not claimed that such permission was at any time applied for or obtained. In our view therefore neither of the two conditions is fulfilled and the premises in question are not entitled to exemption under the said rules. In the conclusion to which we are inclined to come we are supported by a decision of this Court in Parshottamdas v. State : (1960)1GLR89 where these very rules came in for construction and a contention similar to the one urged by Mr. Thakore was raised on behalf of the landlord. The contention was that exemption under these rules attaches to every building owned by a cooperative housing society and also to buildings owned by members of any such society under the bye-laws of the society. Negativing this contention the learned Chief Justice observed that if Section 19(2) and the rules made thereunder along with the relevant part of the schedule were read together the question must arise as to what was the coverage of the exemption. He observed that reading the entry in the manner indicated above it was clear that the exemption did not attach to any building the whole or part of which was let out at the time of the coming into operation of the entry. He further observed that Clause (1) of the schedule brought out in express language 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. He also observed that it was clear from the rules that the object of granting exemption to buildings owned by a co-operative housing society or the 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. That being the extent and the coverage of these rules it is not possible to uphold Mr. Thakores contention that the premises in question were entitled to the exemption or that for that reason thcse premises could not be requisioned under the provisions of Section 6(4) of the Act.
11. These were all the contentions raised on behalf of the petitioner. We are not in a position to uphold any one of them. The result therefore is that the petition fails and must be dismissed. Rule discharged wish costs. Petition dismissed.