# MONGIBAI HARIRAM v. STATE OF MAHARASHTRA AND ANOTHER

- **Citation:** [1966] 2 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 1965-10-25
- **Case number:** Civil Appeal No. 577 of 1964
- **Bench:** A. K. Sarkar, Raghubar Dayal, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mongibai-hariram-v-state-of-maharashtra-and-another-3542
- **Pages:** 22

## Headnote

•
B
•
Bombay Rents, Hotel and Lodging House Rrttes Control Act (57 of
1947), ss. 13 and 17-Bombay Land Requisition Act (33 of 1948), ss.
4(3) and 6--Room in a building-If "Premises"-Eviction of tenant on
ground of landlord's bona fide requirement-If premises could be requisi-
•
tioned.
P, the tenant of a room, in a block of buildings owned by a trust of c
which the appellants were trustees, left the room without informing the
appellants and leaving K in occupation thereof. The appellants never
recognised K as a tenant. No rent was paid from !st January 1956.
The appellants gave the tenant P a notice to quit and thereafter filed
a suit against P and K for recovery of possession of the room under the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
on three grounds-, namely, sub-letting "'·ithout permission, non·payment
of rent and bona fide requirement of the room for their own use and
])
,
occupation.
Evidence \Vas led on the second and iast grounds.
An ex
parte decree in ejectment was passed and on 3()th April 1959, the appel-
!ants obtained possession.
On !st May 1959, K wrote to the Accommodation Control1er that he was
evicted and rend·cred homeless, and the
Controller on September 10, 1959 passed two separate orders under the
Bombay Land Requisition Act, 1948, requisitioning the room by one,
and allotting the room to K by tho other.
The appellants ·moved the
E
High Court under Art. 226 for quashing these orders but were unsuccessful.
In appeal to this Court, it was contended by the appellants that : (i)
Since the appellants obtained an ejectment decree on the ground that
•
they wanted the room for their own use and they did not intend to let
it out at the time of requisition, the room would not be 'premises• under
s. 4(3) of the Act of 1948 which could be requisitioned; and (ii) the
order of requisition was passed niala fide.
F
HELD : (i) (By Full Court) : The room was 'premises' within the
definition of that word in the Act of 1948 and could be requisitioned. [327
H; 338 Fl
Per Sarkar J : The expression "let or intended to be let separately"
in the definition of premises in the Act of 1948 is only apolicab1e to a
part of a building for there is no question of a whole building being let
separately. The words "intended
to be let" in this definition do not
•
refer to any intention to let, actually existing at the time of the requisi·
G
tion; they have been used to indicate that a part of a building which had
never been let before would not be "premises" within the Act unless the
lessor had intended to let it separately. If it is proved that the landlord
•
had at any time let or intended to Jct a part of a building separately, it
would for all time to come be 'premises' within the Act of 1948. [326 H·
J
3n~m
'
Per Raghubar Dayal and Ramaswami, JJ : The words 'let or intend·
H
ed to be let separately' can apply only to the letting of a part of building,
as nght1y, a landlord of a building is not to be forced to let a part of the
building when he is in occupation of it. Therefore, from the date of the
MONGIBAI V. STATE
323
A
enforcement of the Requisition Act, every building comes within the expression "p'remises" and a part of a building comes within the expression,
if it is Jet or if it is intended to be let separately on that date. It would
be impracticable to decide every time a part of a building
fell vacant,
whether the landlord
intends or does not intend to Jet it. [337 G-H;
338 B, E]
(ii) Per Raghubar Dayal and Ramaswami, JJ. : The facts that the
B
allottee had not paid rent previously to the appellants, took various steps
to delay the execution of the decree for ejectment
and applied to the
Accommodation Controller for allotment to himself on the day following
the ejectment, do not, in law, make the· requisition order niala fide, when
the order was not. made on account of any animus against the appellants
..._
or for a purpose for which requisition could not be made. [339 F-H]
c
D
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F
G
,
--?"
H
Requisiti

## Text

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MONGIBAI HARIRAM
A
v.
STATE OF MAHARASHTRA AND ANOTHER
October 25, 1965
[A. K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.J
•
B
•
Bombay Rents, Hotel and Lodging House Rrttes Control Act (57 of
1947), ss. 13 and 17-Bombay Land Requisition Act (33 of 1948), ss.
4(3) and 6--Room in a building-If "Premises"-Eviction of tenant on
ground of landlord's bona fide requirement-If premises could be requisi-
•
tioned.
P, the tenant of a room, in a block of buildings owned by a trust of c
which the appellants were trustees, left the room without informing the
appellants and leaving K in occupation thereof. The appellants never
recognised K as a tenant. No rent was paid from !st January 1956.
The appellants gave the tenant P a notice to quit and thereafter filed
a suit against P and K for recovery of possession of the room under the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
on three grounds-, namely, sub-letting "'·ithout permission, non·payment
of rent and bona fide requirement of the room for their own use and
])
,
occupation.
Evidence \Vas led on the second and iast grounds.
An ex
parte decree in ejectment was passed and on 3()th April 1959, the appel-
!ants obtained possession.
On !st May 1959, K wrote to the Accommodation Control1er that he was
evicted and rend·cred homeless, and the
Controller on September 10, 1959 passed two separate orders under the
Bombay Land Requisition Act, 1948, requisitioning the room by one,
and allotting the room to K by tho other.
The appellants ·moved the
E
High Court under Art. 226 for quashing these orders but were unsuccessful.
In appeal to this Court, it was contended by the appellants that : (i)
Since the appellants obtained an ejectment decree on the ground that
•
they wanted the room for their own use and they did not intend to let
it out at the time of requisition, the room would not be 'premises• under
s. 4(3) of the Act of 1948 which could be requisitioned; and (ii) the
order of requisition was passed niala fide.
F
HELD : (i) (By Full Court) : The room was 'premises' within the
definition of that word in the Act of 1948 and could be requisitioned. [327
H; 338 Fl
Per Sarkar J : The expression "let or intended to be let separately"
in the definition of premises in the Act of 1948 is only apolicab1e to a
part of a building for there is no question of a whole building being let
separately. The words "intended
to be let" in this definition do not
•
refer to any intention to let, actually existing at the time of the requisi·
G
tion; they have been used to indicate that a part of a building which had
never been let before would not be "premises" within the Act unless the
lessor had intended to let it separately. If it is proved that the landlord
•
had at any time let or intended to Jct a part of a building separately, it
would for all time to come be 'premises' within the Act of 1948. [326 H·
J
3n~m
'
Per Raghubar Dayal and Ramaswami, JJ : The words 'let or intend·
H
ed to be let separately' can apply only to the letting of a part of building,
as nght1y, a landlord of a building is not to be forced to let a part of the
building when he is in occupation of it. Therefore, from the date of the
MONGIBAI V. STATE
323
A
enforcement of the Requisition Act, every building comes within the expression "p'remises" and a part of a building comes within the expression,
if it is Jet or if it is intended to be let separately on that date. It would
be impracticable to decide every time a part of a building
fell vacant,
whether the landlord
intends or does not intend to Jet it. [337 G-H;
338 B, E]
(ii) Per Raghubar Dayal and Ramaswami, JJ. : The facts that the
B
allottee had not paid rent previously to the appellants, took various steps
to delay the execution of the decree for ejectment
and applied to the
Accommodation Controller for allotment to himself on the day following
the ejectment, do not, in law, make the· requisition order niala fide, when
the order was not. made on account of any animus against the appellants
..._
or for a purpose for which requisition could not be made. [339 F-H]
c
D
E
F
G
,
--?"
H
Requisitioning of premises for allotment to a person \vho is homeless
is requisitioning for a public purpose. The allotment to a person who
was a tenant of the premises and who remiss
in his duties as a tenant
and had been evicted in execution of a decree of a court, in pursuance
of the practice that the first informant of the existence of a "suppressed
vacancy" would be allotted the premises, is not against law.
Moreover,
the conditions of allotment of the requisitioned premises ensure that the
landlord would not be put to any further trouble so far as the collection
of rent is concerned. [339 H; 340 B-D]
The first part of s. 13(1) (g) of the Rent Act refers to persons who
receive or are entitled to receive rents on their own account and not to
persons who receive or are entitled to receive 'rents as a trustee. Such a
trustee-landlord can require the premises under the section for occupa-
. tion for purposes of the trust, but since
the suit was uncontested, no
occasion arose in the ejectment suit for the court to determine whether
reasonable accommodation
was
available for the tenant and whether
greater hardship would· be caused to the landlord if no
ejectment was
ordered. If the Government happens to requisition the premises for the
person who had been evicted therefrom in
execution of a decree of a
civil court, it does not mean that the Government is not respecting the
decree of the court and is acting against public interest or against the
interests of administration of justice. [341 A-C; 343 B-C]
There is no conflict between the provisions of s. 6 of the RequisitiOn
Act and the provisions of ss. 13 and 17 of the Rent Act and the requisition was valid. [342 CJ
Under s. 17(1) of the Rent Act, the court may order the landlord to
re-allot the premises to the tenant who had been evicted in case the
~andlord does not occupy the pre~ises within a period of one rnonth, or,
if the landlord reallots the premises to another person within a year of
the eviction.
Since the Requisition Act provides by s. 6 that the landlord cannot occupy the premises which had become vaca.'nt on the evic~
tion of the tenant within a month of the receipt of the
intimation, of
vacancy by the State Government, the court will not exercise its discretionary power of. reallotment to the tenant when another enactment by
its language provides for the landlord's non-occupation.
Under s. 17(2),
a. landlord is liable to conviction if .he keeps the
premises unoccupied
without reasonable cause or tf he fatls to comply with the order passed
under s. 17 ( 1). The non-occupation of the premises within one month
qf the ejection of the tenant, when s. 6( 1) of the Requisition Act applies
to the premises, will be non-occupation for a reasonable cause and therefore, there can be no occasion for a conviction on the ground that the
premises were kept unoccupied. [341 F-G, H; 342 A-Bl
324
SUPREME COURT REPORTS
[1966] 2 S.C.R.
Further, the Requisition Act was enac.ted
later than the Rent Act
and since no exception from requisition with respect to premises bec~m
ing vacant on the eviction of a tenant on the ground of bona fi:de requirement by the landlord had been made, the Requisition Act would apply
to. such premises also. [342 C-E]
The fields of operation of the two Acts are different. Under the Rent
Act the civil court in deciding a suit for
eviction,
simply takes into
con~ideration the needs" of the landlord vis-a-vis the tenant and the
grounds of eviction.
Under the Requisition Act, the State Government,
when considering the question of requisitioning the premises
does
not
consider such matters but considers only whether the purpose for which
it is to requisition is a public pmpose or not. To hold that the benefit
of the Act cannot be given to persons evicted on the ground that ~
landlord required the premises for bis own use would not only depnve
the evicted person from
getting the premises
allotted. to himself but
would also deprive many other homeless persons
besides some special
class of persons, allotments to whom would
clearly come within public
purpose. [342 F, G, H; 343 C-D]
It is not open to the appellants to urge that the premises did not become vacant· or were not vacant when the requisition order was passed,
because, a declaration was made in the requisition order that the premises
were vacant and such a declaration operates as conclusive evidence of the
premises being vacant. [339 A-BJ
The fact that the allottee was not made a party to the proceedings, is
also fatal to the maintainability of the writ petition. [343 FJ
Per Sarkar, J. (Dissenting) : The orders of requisition and allotment
passed in this case were not within the contemplation of the Act. In the
circumstances of the case it has to be held that the ejectment decree was
passed on the ground mentioned in s, 13 ( 1) (g) of the Act of 1947, that
ts to say, 'the court ordering ejectment found that the appellants required the room for their O\Vn occupation and they were ·entitled to it in preference to the defendants P and K. The rnsult of the orders under the
Act of 1948 was to annul 'the decision of the court granting the ejectment. It cannot be said that the powers under the Act of 1948 were
intended to be exercised to set at naught the judgment of a court. [329
A-B, DJ
A
c
D
E
If the powers to requisition and allot under the Act of 1948 could
be exercised in a case where an ejectment decree had been passed under
F
s. 13(1) (g) of the Act of 1947, a conflict would arise betweens. 17 of
the Act of 1947 and s. 6 of the Act of 1948. This conflict has to be
harmonised and the only way to do so is to say that the Requis;tion Act
doe• not apply to a case where the landlord has been permitted to recover possession for his own occupation. [330 H; 331 A-BJ
The Act of 1948 does not contemplate a requisition in vacuo; there
must be a prospective or actually homeless
person
in view before an
order requisition can be passed. [331 HJ
The Act of 1948 does not give larger powers of requisition where
the landlord bas failed to give notice of a vacancy as required by s. 6 of
that Act. [332 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 577 of
1964.
Appeal by special leave from the judgment and order dated
September 13/14th 1960, of the Maharashtra High Court in
Appeal No. 14 of 1960.
G
H
•
•
'
ti
•
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MONGIBAI V. STATE (Sarkar, J.)
325
A
A. V. Viswanatha Sastri, B. R. Agarwala,. H.K. Puri, for the
B
appellants .
• Purushottam Trikamdas, B. R. K. G. Achar and R. H. Dhebar,
for the respondents.
Sarkar, J. delivered a dissenting Opinion.
The Judgment of
Raghubar Dayal and Ramaswami, JJ. was delivered by Raghubar
Dayal, J.
Sarkar J.
The appellants are trustees of a certain trust which
owns a big block of buildings situate at Matunga in the city of
Bombay. The rooms in this block of buildings are let out to variC ous tenants. One P. S. N ambiar was a tenant of room No. 26 in
this block for a long time. He had left the room without informing the appellants and having put one K. A. Nambiar in possession.
It is not known when P. S. Nambiar left. The appellants never
accepted K. A. Nambiar or any one else _as the tenant. No rent
had been paid in respect of the room since January 1, 1956 which
D
was prior thereto being paid in the name of P. S. Nambiar.
The appellants terminated the tenancy of P. S. Nambiar by a
notice to quit, expiring on December 31, 1957, and thereafter on
March 26, 1958 filed a suit in the Court of Small Causes, Bombay
against P. S. Nambiar and K. A. Nambiar for recovery of possesE sion of the room, P. S. Nambiar being sued as the tenant and K. A.
Nambiar as the person in occupation of the room. The grounds
on which ejectment was sought were that (1) P. S. Nambiar had
sublet the room without the permission of the appellants, (2) he
had been in arrears with his rent from January 1, 1956 and (3)
the premises were required by the appellants for their own use and
F
occupation. On proof of any of these grounds an ejectment decree
could be passed against the tenant under the provisions of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
194 7, hereafter referred to as the Rent Act. The defendants could
not be personally served and eventually service of the summons
was effected by affixing it on the room. That was due service of
G the summons but the defendants did not enter appearance to the
suit. Evidence was led on behalf of the appellants to prove that
the rents were in arrear as stated and that they required the room
reasonably and bona fide for their own use and occupation as such
trustees.
No evidence appears to have been led as to any subletting by P. S. Nambiar. So this ground of eviction may be left
H
out of consideration.
An ex parte decree in ejectment was passed in the suit on August
18, 1958. The execution of that decree was obstructed in various
326
SUPREME COURT REPORTS
(1966] 2 S.C.R.
ways including an application by K. A. Nambiar to set aside the
decree on the ground of non-service of summons which was dismissed by the trial Court and an appeal from that order also failed.
Eventually the appellants obtained possession of the room on April
A
30, 1959. On the next day, that is, May 1, 1959, K. A. Nambiar
wrote to the Controller of Accommodation appointed under the
Bombay Land Requisition Act, 1948, stating that he was evicted
B
from the room in execution of a decree and requesting that the
room be requisitioned and allotted to him under the Requisition
Act as he had no other accommodation. Thereafter, by a notice
dated July 11, 1959 the appellants were called upon to show
cause why the room should not be requisitioned under the Act and
after certain enquiries had been made, an order was passed on
September 10, 1959 declaring the room to be vacant and requisitioning it and by another order dated the same day, it was allotted
c
to K. A. Nambiar. The appellants· took certain steps under the
Requisition Act in the nature of an appeal to have these orders
annulled but their attempts were unsuccessful.
On September 30, 1959, the appellants moved the High Court
at Bombay under Art, 226 of the Constitution for a writ directing
D
the State of Bombay and the Accommodation Officer appointed
under the Requisition Act to withdraw the orders of requisition
and allotment and also for a writ quashing these orders. The petition was heard by a learned Single Judge of the High Court who
E
dismissed it. The appellants then went up to a Division Bench in
appeal against the judgment of the learned Single Jndge but in this
appeal also they were unsuccessful. They have now appealed to
this Court with special leave.
On behalf of the appellants it was pointed out that the premises
F
which could be requisitioned under the Act were defined as any
"building or part of a building let or intended to be let separately".
It was said that where a building or a part of it was not intended to
be let, it would not be premises and the intention to let had to be
determined at the date of the order of requisition. It was, therefore, contended that as the appellants had obtained an ejectment
decree on the ground that they wanted to occupy the room themselves, they did not intend to let it out and so, in the absence of
such intention at the date of requisition, the room was not premises within t.he Act and could not be requisitioned. According
G
to the appellants the order of requisition was hence bad.
This
argument does not seem to me to be well founded. The words "let
H
or intended to be let separately" are only applicable to a part of a
building for there is no question of a 'whole building being let
-
•
'
•
f
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MONGIBAI V. STATE (Sarkar, J.)
327
A separately; a whole building is not joint with anything else separately from which it can be let. That being so, it seems to me that
the words "let or intended to be let, were used only to indicate that
a part of a building is not to be understood as premises capable of
'Jeing requisitioned unless the landlord let it or intended to let it
separately from the rest which might be in his occupation. The rea-
'B
son for treating a part of the building in this way was apparently
that that it would cause hardship to a landlord to force him to
accept in a part of his house a stranger as a tenant. A part of
building was considered by the statute to be fit for requisition only
when the landlord had out of his free choice let it separately from
c
the rest or intended so to let it. Such a view would be understandable for in such a case there would be no question of any hardship
on him.
The words "intended to be let" did not, in my view, therefore
refer to any intention to let actually existing at the time of the
requisition. They had been used to indicate that a part of a buildD ing which had never been let before would not be premises within
the Act unless the lessor had intended to let it separately at any
time. It would not be taking an unreasonable view to hold that
if it is once proved that the landlord had at any time intended to let
a part separately, it would for all time to come be premises within
the Act, for if once the landlord had wanted to let out the part, the
E
letting could not cause any hardship to him. If the Act thereafter did not take any notice of any change in the landlord's mind
regarding the letting of a part, that would only mean that it did not
think it right to give him the luxury of changing his mind from
time to time. That does not seem to me to be an unnatural interpretation of the Act.
F
Again, the definition does not say that the building or a part
of it must have been intended to be let at the date of the requisition. I find no justification either in the context or the intendment
of the Act to warrant the addition of words to that definition to
support the appellant's contention.
Furthermore, if the words
"intended to be let" were meant to refer to an intention at the
G
time of requisition, it had also to be held that the word "let" meant
that the premises to be requisitioned were let at the time of requisition.
That would, of course, be absurd for what could be requisitioned under the Act was what was not let and not occupied
by a landlord or a tenant, namely, vacant premises. I am, therefore,
unable to agree that the room was not "premises" within the deH finition of that word in the Act. The order of requisition is not
open to challenge on the ground that it related to premises as
defined in the Act.
328
SUPREME COURT
REPORTS
[1966] 2 S.C.R.
That however does not, in my opinion, conclude the matter.
A
I confess that this case has caused me great anxiety but having
given it the utmost thought that I could, I have not been able to
persuade myself that the orders that were made in this case can be
sustained. I think that though they may be within the letter of
the Act, they are not within its spirit or intendment. In my view,
the requisition made in this case was not for a public purpose
B
contemplated by the Act nor was the power of requisition conferred by the Act intended to be exercised in the circumstances
that prevailed.
There has been in a legal sense, a mala fide use of
the powers conferred by it. I proceed to set out the reasons which
have led me to this view. I should state here that this aspect of
the matter had not been presented to the High Court for its conC
sideration.
Under the Act premises could be requisitioned only for a public
purpose.
Public purpose would no doubt include the purpose
of finding a shelter for a homeless person. This has indeed been
held by this Court in The State of Bombay v. Bhanjl Munji('). A
D
person evicted from a premises in his occupation may be a homeless person.
Now in the present case the requisition had been
made for K. A. Nambiar. He had no doubt been evicted from the
premises in question.
I will assume he had no other home in
which he could take shelter and that he was a homeless person.
But the question still remains whether he was a homeless person
E
within the contemplation of the Act, that is, whether his requirement was a public purpose within the Act. I do not think he was.
Now s. 13(1)(g) of the Rent Act provides that an order for
eviction from premises may be made against a tenant where t11e
landlord requires them reasonably and bona fide for his own occuF
pation. Section 12 of this Act provides for eviction for non-payment of rent.
As I have said earlier, the appellants had asked
for eviction on both these grounds and had given evidence in support of them. It is not necessary to consider the ground of nonpayment 1of rent for the purposes of this judgment for it does not
annul the other ground of eviction and does not affect the order of
G
eviction made under s. 13(1)(g). With regard to s. 13(1)(g) the
appellants' case was that they required possession of the room for
storing building materials of the trust and also for their occupation
when they came from Calcutta where they resided to Bombay to
look after the properties of the trust of which they were trustees as
they had no residential accommodation in Bombay. It has not
H
been disputed that this, if proved, would satisfy s. 13(1)(g). They
(!) [1955] l S.C.R. 777.
•
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1111
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MONGIBAI v. STATE (Sarkar, J.)
32 9'
A gave evidence to prove this requirement.
This they repeatedly
stated in their affidavits and it has not been denied by the respondents. That evidence was unchallenged, as it must be held in view
of the proceedings in the ejectment suit earlier referred to, that
the tenant and occupier had deliberately kept away from the hearing of the ejectment suit. It follows, therefore, that the ejectment
B
must have been ordered also on the ground that the appellants wanted the room for their occupation. It is true that there was no·
judgment in the ejectment suit but only an order for ejectment
without stating the reasons on which it was based but that cannot
affect the rights of the appellants. The omission of the Court to
state the reasons for its order would not show that the order had·
C not been passed on the gronnd of the bona fide personal requirement of the premises by the landlord.
The result of this order is that the Court acting under the Rent
Act found after due trial that the appellants were also homeless
persons and between them and the defendants they had a greater
D
right to occupy the room: see s. 13 ( 2). The result of the requistion
order was to annul this decision.
It does not seem to me that
powers under the Requisition Act were intended to be exercised
to set at na_ught the judgment of a Court and restore possession
to the evicted tenant. In my opinion, in the circumstances prevailing, the premises could not be requisitioned at all for if they
E
were requisitioned even for putting a third person in possession
the result might be that the evicted tenant rendered homeless for
no fau It of his own would have to go without a shelter while the·
third person to whom the premises were allotted was provided with
a home. It would be unnatural to think that the Act intended such
F
an anomalous situation.
I, therefore, think that the requisition
order was outside the Act and invalid.
This view finds so~ne support from the judgment of the App~llate Bench of the High Court. It was there said that if the pre-.
m.1ses had been allotte(i to K. A. Nambiar though he was in arrears
with the rent and for that reason evicted, then it would have to be
G held that the orders of requisition and allotment "were not free·
from ma/a fide".
The learned Judges however held that K. A.
Nambiar had no liability for rent as he was not the tenant that
liability being only that of P. S. Nambiar who was the t~nant
and, therefore, the orders could not be said to have been mad~
H
male fide.
With respect, I am unable to see what difference the·
fact that K. A. N ambiar was not liable for rent and could not be
said ~o have been ev!cted for n?n-payment of rent by him, made.
Admittedly, he was m occupat10n of the premises all along. He·
330
SUPREME COURT REPORTS
[1966] 2 s.c.R.
.knew that rents had not been paid and that he was occupying the
A
:Premises free.
Is not that fact as strong to show ma/a {ides as
the fact, if it had been so, that he was liable to pay rent and did
not pay ? It seems to me impossible that the Act contemplated a
-requisition to restore possession to him. It is not necessary howeever to pursue this aspect of the matter further. The point that I
wish to make is that the learned Judges of the Appellate Bench of B
the High Court thought it a ma/a fide application of the Act to allot
premises to a tenant who had been evicted from them on the ground
that he had not paid rent. I find no distinction between that case
.and one allotting premises to a person who has been directed by a
c
. court to be evicted on the ground that the landlord is entitled to
.their possession in preference to the person in whose right he was
there. In my view, the Requisition Act was not intended to be
utilised for putting the evicted person back in possession in either
·case; in each case the requisition would be ma/a fide. The requisitioning authorities were fully aware of all the facts of the litigation
between the appellants and the Nambiars and I cannot help wonderD
ing how notwithstanding that they thought fit to make the order
-Of requisition. I do not wish to say that they deliberately set the
.decree of court at naught but I am clearly of opinion that they
.completely misconceived their powers under the Requisition Act.
There is yet another aspect of the case which has led me to
the view that the requisition order was outside the Act.
I have
E
already stated that the Rent Act provides bys. 13 (1 )(g) that an
order of eviction may be made against a tenant where the premises
are reasonably and bona fide required by the landlord for his
·own occupation.
Section 17 of the Act states that where a decree
for eviction has been passed on such a ground-I have held that
the decree for eviction in the present case was passed on that
F
ground-and the premises are not occupied within a period of one
:month from the date the landlord recovers possession, the landlord is liable to a penalty of imprisoment or fine and, what is
important, the Court may also on the application of the evicted
person order the landlord to place him in occupation of the premises on the original tenns and conditions.
Now s. 6 of the
Requisition Act says that when premises become vacant as a result
.of the tenant having been evicted, the landlord shall give intimation of the vacancy to the prescribed authority within seven days
G
and he shall not occupy the premises or permit them to be occupied by anyone before giving the intimation of vacancy and also
for one month from the date when the intimation given is received
H
by the authority. It would appear, therefore, that a conflict will
.arise between the two Acts if both were applicable at the same
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MONGIBAI v. STATE (Sarkar, !.)
331
time in a case where the tenant has been evicted on the ground
that the landlord required the premises for personal occupation~
under one the landlord has to occupy the premises within a month'
while under the other he cannot occupy them for a month or.
longer. This conflict must be harmonised and the only way to.
do so is to say that the Requisition Act does not apply to a case
where the landlord has been permitted to recover possession for
his own occupation. This would leave both the Acts a fair field
on which to operate. Otherwise the provision of the Rent Act
requiring the landlord to occupy the premises earlier referred to
would become completely ineffective.
I may also add that the .
Rent Act is a special law dealing with the relations between landlords and tenants while the Requisition Act is a general Act
dealing with the requisition of all vacant premises. To give the .
Requisition Act preference over the Rent Act would be to hold ·
that a general statute overrides a special one.
This would be .
against the accepted canons of interpretation. To my mind, this
affords a further ground for saying that it was not intended that
the Requisition Act would apply to such a case. The present is .
precisely a case of the same kind.
A suggestion was made on behalf of the respondents that the
order of requisition and the order of allotment were separate and ·
that being so the requisition order would not become invalid
because the allotment had been made to a person to whom it could ·
not be made under the Act.
I should at once state that in the
view that I have earlier taken, the question does not arise for in .
my view the requisition order made in this case was itself bad for .
no requisition could be made in a case where a landlord has been .
held entitled by court to evict the tenant as he requires the pre- .
mises for his personal occupation. I will also consider the argument apart from this aspect of the case. I do not think that the .
two orders were separate. Assume however that they were so.
Even then ex concessis the order of allotment is outside the Act .
and therefore bad. If both were good or both were bad, it would ·
be to no purpose to discuss whether there were two orders or one.
The allotment order has, therefore, in any event, to go.
Jf the .
allotment order was unjustified, the requisition order would also
fall, for it is not said that there was any homeless person other than .
K. A. Nambiar to whom the allotment had been made, for whom .
it was necessary to requisition the premises.
I do not think the
Act contemplates a requisition in vacuo; there must be a public,.
that is to say, a prospective or actually homeless person in view
before a requisition can be made. I think that there are-observa- .
:332
SUPREME COURT
REPORTS
[1966] 2 S.C.R.
tions in Bhanji Mrmji's case(') supporting that view. It is not in A
dispute that in this case there was no homeless person prospective
-0r actual to the knowledge of the requisitioning authorities who
required accommodation, except K. A. Nam biar.
He had given
intimation of the vacancy and had at the same time requested
that the room be requisitioned and allotted to him.
Both the
orders were besides made ·on the same day.
It is obvious that B
the two orders are connected and, therefore, really one.
The
·contention that the orders were separate is, to my mind, too naive
to be accepted. There is in the present case, therefore, really one
·order and that must go.
In the course of the hearing in this Court our attention was
C
repeatedly drawn to the fact that this was a case of a "suppressed
vacancy".
What was meant by "suppressed vacancy" was that
the appellants had failed to give notice of the vacancy as required
by s. 6 of the Requisition Act. On the facts, it has to be held that
the appellants had not given the necessary notice. But I do not D
see that that makes any difference to the present case.
The
Requisition Act nowhere says that larger powers of requisition may
be exercised where the required notice has not been given. Those
powers are the same whether notice has or has not been given.
All that the Act says is that on the failure to give notice the landlord would incur a penalty by way of imprisonment or fine : see
E
·s. 6(5). I find nothing in the case of Bhanji Munji(') contrary
to this view or contrary to anything that I have said in this judgment.
I would for these reasons allow the appeal with costs through-
·out.
Raghubar Dayal, J.
The appellants, in this appeal by special
leave, are the trustees-owners of Kutchi House situate at
Brahmanwada Road, Matunga, Bombay.
They purchased the
property in 1948.
One P. S. Nambiar was at the time tenant in occupation of
room No. 26 on the second floor of the Kutchi House. He paid
rent at Rs. 20.68 per month exclusive of electricity.
He did not
F
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pay rent from January 1, 1956.
He left the premises sometime
without informing the appellants and after putting K. A. Nambiar
in ·possession of the room.
In 1958 the appellants sued for . ll
{l) [19551 I S.C.R. 777.
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MONGIBAI v. STATE (Raghubar Dayal, !.)
333
A ejectment of P. S. Nambiar and K. A. Nambiar from room No. 26
B
c
in the Court of Small Causes, Bombay, on grounds :
1
(a) that the defendant P. S. Nambiar has sublet
and/ or assigned his interest in the suit premises with·
out the permission of the plaintiffs and in breach of the
provisions of Bombay Act 57/47;
(b) that the said defendant No. 1 has
been
in
arrears of rent and/or compensation from 1st January,
1956 at the rate of Rs. 20.68 exclusive of electricity
charges; and
( c) that the premises are required by the plaintiffs
for their own use and occupation bona fide and reasonably.
On any of these .grounds the landlord could evict the tenant in
view of the provisions of s. 13 of Act 57 / 4 7 viz., the Bombay
D
Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Rent Act). The proceedings were to be taken
in the Court of Small Causes, Bombay, in view of s. 28 of that
Act.
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The suit was decreed ex parte on August 5, 1958. The decree
directed the defendants to vacate the room by August 16, 1958.
The decree-hold.ers actually got possession of the room on April
30, 1959 as proceedings were taken against K. A. Ramakrishnan
who had obstructed the execution of the warrant of possession on
September 30, 1958 and as K. A. Nambiar also took proceedings
for the setting aside of the ex parte decree.
On May l, 1959 K. A. Nambiar applied to the Controller of
Accommodation for requisitioning the premises, room No. 26,
under the Bombay Land Requisition Act, 1948 (Act XXXIII of
1948), hereinafter called the Act, and for allotting it to him as
G· he had been evicted therefrom on April 30, 1959.
On July 11,
the Accommodation Officer issued a notice to the appellants to
show cause why the room be not requisitioned under the Act. The
appellants showed cause and, by his ·letter dated August 17, 1959,
the Accommodation Officer informed the appellants that on the
evidence available to him he had come to the conclusion that it
H
was a case of suppressed vacancy.
Against this order of the
Accommodation Officer the appellants appealed to the Govern- ·
ment of Bombay.
334
SUPREME COURT REPORTS
[1966] 2 S.C.R.
On September 10, 1959 the Government of Bombay issued the A
requisition order.
It reads :
"Whereas, on inquiry it is found that the premises
specified below had become vacant on the 30th day of
April, 1959.
Now,. therefore, in exercise of the powers conferred
by clause (a) of sub-section ( 4) of section 6 of the
Bombay Land Requisition Act, 1948 (Bom. XXXIII
of 1948), the Goverrunent of Bombay, is pleased te>
declare that the said premises had become vacant after
4th December, 1947 and to requisition the said premises
for a public purpose, namely, for housing a homeless
person.
Premises
Room No. 26, 2nd Floor, Kutchi House etc.
By the order and in the name of the
Governor of Bombay.
Sd/-
Accommodation Officer."
On September 12, room No. 26 was allotted to K. A. Nambiar.
c·
He was required to pay to the land-lord on behalf of the Government, in advance, on or before the 10th day of every month, compensation at the rate of Rs. 20.68 per month in respect of the
premises and to send to the Controller of Accommodation a certificate of such payment counter-signed by the land-lord on or F
before the 15th day of each month.
The appellants then addressed an application to the Revenue
Minister on September 14, 1959.
On September 25, the Deputy
Minister of Revenue interviewed the representatives of the appellants in the presence of K. A. Nambiar and the Controller of
Accommodation.
On September 30, the appellants filed a petition in the High
Court of Bombay against the State of Bombay and the Accommodation Officer, Bombay, praying inter alia for the issue of a writ
G
of mandamus under art. 226 of the Constitution against the respondents directing them to cancel or withdraw the orders of reH'
quisition and allotment.
The petition wa~ contested by the respondents.
The learned Single Judge who heard the petition held
,f
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MONGIBAI v. STATE (Raghubar Dayal, !.)
335
A that room No. 26 came within the definition of 'premises' and that
the requisition order was not ma/a fide.
The contention to the
effect that the appellants had given necessary intimation of vacancy
by their letter dated May 3, 1959, was not pressed in view of the
denial of the receipt of any such notice by the Government.
The
B
other contention about the requisition order being against the
pronounced policy of the Government was rejected.
The result
was that the appellants' petition was dismissed.
of
The appellants then filed an appeal under the Letters Patent.
•
This appeal also failed.
The appellate Bench agreed with the
findings of the learned single Judge on the question of room No. 26
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being 'premises' within the definition of that word in the Act and
on the requisition order being not made mala fide. The contention
that there was no statutory vacancy in respect of room No. 26
which could have been the subject matter of requisition by the
respondents was not pressed.
It is against this order of the appellate Bench of the High Court that this appeal has been filed.
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Besides the two contentions urged before the High Court, it
has also been contended for the appellants that the premises were
not vacant as contemplated by the Act and that therefore they
could not have been requisitioned.
The requisition order is made under s. 6 ( 4) of the Act. Sub-s.
(1 ) of s. 6 reads :
"lf 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 or become vacant after such
date by reason of the landlord, the tenant or the subtenant, 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 this behalf
by the State Government."
Sub-s. (2) requires the landlord to give an intimation to the State
Government by registered post within 7 days of the premises
becoming vacant or becoming available for occupation.
Sub-s.
H
(3) prohibits the landlord without the permis~on of the State
Government to let, occupy or permit to be occupied such premises
before giving the intimation and for a period of one month from
L2Sup Cl/66- 8
:!36
SUPREME COURT REPORTS
[ 1966] 2 S.C.R.
the date on which the intimation is received by the State Government.
Sub-s. ( 4) reads :
"Whether or not an intimation under sub-section ( 1)
is given and notwithstanding anything contained in section 5, the State Government may by order in writing-
(a) requisition the premises for any public purpose
and may use or deal with pr_emises for any such purpose
A
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in such manner as may appear to it to be expedient; .
._
Provided that where an order is to be made under
clause (a) r~quisitioning the premises in respect of which
no intimation is given by the landlord, the State Government shall make such inquiry as it deems fit and make
a declaration in the order that the premises were vacant
or had become vacant, on or after the date referred
to in sub-section (1) and such declaration shall be conclusive evidence that the premises were or had so become
vacant."
Sub-s. (5) provides for penalty for failure to give the necessary
intimation required by sub-s. (2). Explanation to s.