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TMI Blog1958 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter requisition the said premises as it had purported to do. 2. The learned Counsel for the petitioner relies upon the decision in Dwarkadas Jivraj v. State of Bombay' (1945) 56 Bom. L.R. 968. In that case Mr. Justice Tendolkar at page 969 observes as under: ...Where in the exercise of the rights conferred upon him by Sub-section (3) a landlord proceeds to exercise his rights as a landlord after waiting for a period of one month from the date on which intimation is received and either goes into occupation or lets the premises to a tenant, it appears to me that by that act which is lawful and expressly permitted by the Bombay Land Requisition Act, the vacancy of which intimation was given comes to an end and therefore the right of Government to requisition the premises comes to an end with the termination of the vacancy, as it has been repeatedly laid down that the existence of a vacancy is a condition precedent to the exercise of the power to requisition. Therefore, in a case in which the landlord has so exercised his right, it appears to me that as there is no vacancy the power of Government to requisition comes to an end from the date when the landlord has exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not merely required to be given by registered post, but it is required to be given in the case like the one before me within seven days of the premises becoming vacant or becoming available for occupation . It is urged that as the intimation which was given by registered post was an intimation given more than seven days after the premises became vacant or became available for occupation, it was not a proper intimation as contemplated by Sub-section (2) of Section 6 and that the petitioner was not authorised under the provisions of Sub-section (3) to occupy the said premises so as to terminate the vacancy which had arisen. 6. It is necessary in order to appreciate the rival contentions to set out the provisions of Sub-section (3) of Section 6. It runs as follows: A landlord shall not, without the permission of the State Government let, occupy, or permit to be occupied such premises before giving the intimation and for a period of one month from the date on which the intimation is received. It is urged on behalf of the respondent that the words before giving the intimation in that sub-section mean before giving the Intimation by registered post within the time specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it so desired. If the Government did not requisition the premises within the said period of one month then the landlord is at liberty to let, occupy or permit to be occupied the said premises. It could never have been the intention of the Legislature that if on account of sickness, insanity of mind, minority, absence from Bombay, want of knowledge or any other cause, the intimation is not given within a period of seven days after the premises became vacant or became available for occupation, they should be kept vacant or unoccupied during the subsistence of the Act by a law-abiding landlord. Where the Legislature intended to refer to the period within which the intimation is required to be given, it has expressly stated so. The language used in Sub-section (3) of Section 6 may well be contrasted with the language used in Sub-section (5) of Section 6. In Sub-section (5) the words used are as follows: Any landlord who fails to give such intimation within the period specified in Sub-section (2) shall on conviction be punishable with imprisonment for a term which may extend to three months or with fine or with both. If the Legislature intended by Sub-section (3) to refer also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54, must on such authorised occupation be considered to have ceased to exist and the power of the respondent to requisition the premises on account of such vacancy must equally be regarded as having ceased. In my view, the State Government was not entitled in law to issue the order of requisition, dated May 11, 1957, in respect of the vacancy which arose on January 20, 1954, and to pass the order, dated May 30, 1957, for taking possession of the said premises. 10. It was urged before me on behalf of the petitioner that under Sub-section (2) of Section 6 a provision has been made for giving the intimation to the Government by registered post for the benefit of the Government, that it is open to the Government to waive that condition and that in the present case the Government has in fact waived that condition. On the other hand, it has been strongly urged on behalf of the respondent that this is a statutory condition the non-observancs of which is visited by the Legislature with the penalty of imprisonment and fine and that such a condition is incapable of being waived and has in fact not been waived. It is not necessary for the purpose of the present ease to decide these points. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are agreed that the Government will be at liberty not to deliver up possession of the premises upto June 10, 1958. 16. The State of Bombay appealed. Chagla. C.J. 17. Although this appeal is capable of being disposed of on a very narrow ground, viz., that the petitioner has disentitled himself for any relief from this Court on the ground of misconduct and on the ground that justice is not on his side, as the matter is of considerable importance and has been argued at some length, it is necessary to dispose of the various questions that were argued at the Bar. 18. The appeal arises out of a petition filed challenging an order of requisition passed by Government on May 11, 1957, and what was requisitioned was flat No. 5 in Hirji Mansions, Darabshah Road, off Nepean Sea Road, It appears that this flat was let by the landlord to one Ashraf Dharamsey, and the landlord. who is the respondent before us, filed an ejectment suit on June 21, 1953, and obtained a decree on September 23, 1953, from the Small Causes Court. By this decree possession was to be given to the landlord within one month. On January 13, 1954, the respondent obtained a warrant of possession. On January 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupation of the flat. On May 11, 1957, after the inquiry was held the impugned requisition order was passed. This requisition order relies on the vacancy having taken place on January 20, 1954, and the premises are requisitioned under the powers conferred by Clause (a) of Sub-section (4) of Section 6 of the Bombay Land liequisition Act. The order of enforcement was issued on May 30, 1957, and the possession was taken on June 7, 1957. The learned trial Judge, after consideration of the law and of the facts and circumstances of the case, came to the conclusion that the requisition order was invalid and gave the necessary relief to the respondent, and the State of Bombay has come in appeal. 19. The first question that arises is whether the intimation given by the landlord on January 27, 1954, is the intimation required by the law. Turning to the section, Section 6(1) imposes upon the landlord of vacant premises a duty to give intimation in the prescribed form to an officer authorised in this behalf by the State Government. It is not disputed by the State that the intimation was given by the landlord in the prescribed form to an officer authorised in that behalf by the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landlord to make use of his premises arises and on the lapse of that period he may let, occupy or permit to be occupied the premises in any manner he likes. But it will be noticed that if he does not give the intimation he has no right to deal with the premises, and therefore what we have to consider in this case iswhat is the proper effect to give to the expression the intimation used in Sub-section (3)? The rival contentions are that the intimation referred to in Section 6(3) is the intimation referred to in Section 6(1), and the other contention is that the expression the intimation in Section 6(3) is the intimation with all its requirements set out not only in Section 6(1) but also in Section 6(2). In other words, it is only that intimation which is in the prescribed form which is given to an officer authorised in that behalf, which is given by registered pos-t, and which is given within seven days of the premises becoming vacant that constitutes the intimation required to be given by the landlord under Section 6(3), and if any of these requirements is absent a landlord cannot be deemed to have given the intimation required by law. It is, therefore, pointed out that admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law at all. When no consequence is apparent in the law it is possible for the Court to take the view that although the Legislature has used the expression shall it must be construed as being directory or procedural rather than mandatory in the strict sense of the term. The Legislature may be anxious that a particular procedure may be followed. The Legislature may require that procedure to be followed in the interest of the party for whose benefit the direction is laid down. But it does not follow that because the party does not follow that particular procedure or give effect to that particular direction, the result would be so serious or so calamitous as for the party losing his rights to deal with and use his own property. It is clear, in our opinion, that the mode prescribed by Section 6(2) that the intimation shall be given by registered post is directory. It is clearly in the interest of the landlord himself that he should leave no possibility of any dispute about his having given an intimation at the proper time, and therefore the Legislature as a safeguard in his interest has provided that he should give intimation by registered post. But it is too much to suggest that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s constituted by the landlord using the premises in contravention of the provisions of Sub-section (3). Coming back to the provisions of Sub-section (3), it is difficult to take the view that the intimation referred to in this sub-section is not the intimation referred to in., Sub-section (1), but the intimation referred to in Sub-section (1) with the additional requirements set out in Sub-section (2). It is undoubtedly true that it is possible to take the one or the other view of the expression the intimation in Sub-section (3), but we should rather take the view which will lead to the least inconvenience' and which will serve the purpose of the Act without causing unnecessary hardship to the landlord. 22. Now, if we were to take the view that the intimation refers to an intimation with all its details and requirements as contained not only in Section 6(1) but also in Section 6(2), the result would be that if an intimation is not given by registered post and within seven days, the landlord thereafter could never give an intimation. As already pointed out, he would be perpetually, or at least for the duration of the Act, deprived of his right to deal with the premises alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eone having informed the Controller of such a vacancy, the State launches upon an inquiry as provided in the proviso to Section 6(4)(a). But if the landlord himself comes forward and says that there is a vacancy and gives intimation, we should have thought that the purpose of the Government would be better achieved than by holding an inquiry under the proviso. But the answer of the Advocate General to this contention is that the destinationand this is his expressionof the requisitioned premises in the case of a vacancy declared by the landlord is different from the destination of the vacancy which is found as a suppressed vacancy, and the Advocate General wanted to draw our attention to the policy of Government that when there is a suppressed vacancy, the vacancy should go to the first informant and when intimation was given by the landlord it should be used for a public purpose and given to a Government servant or used for some other similar purpose. Now, in construing the Act we are not concerned with the policy of Government. It is sufficient for us to note that even when an inquiry is being held by Government with regard to a suppressed vacancy and the landlord gives intimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that failure to give this intimation has been made penal; and for the obvious reason that it was the policy of the law that the landlord should report vacancies as soon as possible. But because the policy of the law was to put compulsion upon the landlord to report a vacancy, it does not follow that if the vacancy was not reported in time and if the landlord made himself liable to penal consequences, the landlord was deprived for all time from giving an intimation subsequently; and it is equally clear that the Legislature has laid the least emphasis on one particular aspect of this intimation, which is the mode of giving the intimation, viz., by registered post. 26. Reliance was also placed at the Bar on a judgment of Mr. Justice Kania in Nurshedrai B. Dave v. The Asian Assurance Co, Ltd. (1941) O.C.J. Suit No. 809 of 1941, decided by Kania J., on September 11, 1941 (Unrep.). There the learned Judge construed a provision in a rule, which required notice to be given by registered post, as mandatory. In that case the learned Judge was dealing with the right of policy holders to elect a director and he was considering the Election Rules, and it is well known that when you constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the learned Judge in this judgment and differ from the view taken by the learned Judge in the earlier judgment which is relied upon by the Advocate General. 28. In passing, a reference might be made to the recent decision of the Supreme Court in State of U.P. v. Maribodhan Lal, where the Supreme Court, differing from this Court, took the view that the expression shall used in Article 320(3)(c) was not mandatory and there was no obligation upon the State Government to consult the Public Service Commission in the cases set out in that article, and the observation in the judgment to which reference might be made is at p. 917: This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. 29. On this view of the law, let us turn to the facts before us and see what is the consequence, We have here an intimation given by the landlord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act V of 1952 which required the intimation to be given by post, that post must be read as registered post and that it was obligatory upon the landlord to give intimation by registered post, and he refused to permit evidence being led to prove as a fact that intimation had been received by Government. His view was that if the intimation was not sent by registered post, the intimation was not the intimation required by law. As this was a judgment of a co-ordinate authority, Mr. Justice K. T, Desai felt bound to follow it and, therefore, he came to the conclusion that in this case the intimation of January 27, 1954, was not the intimation required by Section 6(3). Now, we have had a look at the judgment. In our opinion, again with respect, the construction placed by the learned Judge on Section 28 of the Bombay General Clauses Act is not warranted by the language used by that Act. But that is a question that does not arise in this appeal. But we are unable to agree with the learned Judge that the failure to comply with any of the requisites contained in Section 6(2) with regard to the intimation makes that intimation one which does not fall under Section 6(3). In other words, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 27, 1954, was received, or it commenced from November 3, 1954, when the second intimation was received by the Controller. 33. But it is not sufficient that a party should come to this Court and make out a ease that a particular requisition order is not valid. In order to get that relief from the Court on a writ petition, not only must he come with clean hands, not only must he not suppress any material facts, not only must he show the utmost good faith, but he must also satisfy the Court that the making of the order will do justice and that justice lies on his -side. The Advocate General has drawn our attention to the rather curious attitude taken up by the petitioner with regard to this intimation of January 27, 1954. In his petition as originally presented he relied on a vacancy of October 23, 1953, and he relied on an intimation of November 27, 1953, and he actually denied any knowledge about the intimation of January 27, 1954. Now, this was partly due to the confusion created by the letter written by the Controller himself by which he erroneously referred to the intimation of January 27, 1954, as of November 27, 1953, having been received on February 1, 1954. But thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisitioned and it was in the occupation of this Kalyanji. At the date of the petition Kalyanji had left, the premises were requisitioned, a Government officer was put in possession, and the result of setting aside this requisition order would be to throw this Government servant out and restore possession to the landlord when in fact the landlord was not staying there. There is also force in the Advocate General's contention that on the record it would be open to the Government to requisition these premises afresh on the ground of vacancy constituted by Kalyanji Dhanji leaving these premises, and that the Court will not make an order which could be, in substance, set aside by the Government issuing a fresh requisition order. This is not a case where a landlord has been deprived of his possession. This is not a case where a tenant in occupation has been thrown out. This is, on the contrary, a case where the premises requisitioned for a public purpose are occupied by a Government servant and are sought to be taken possession of by the landlord by asking the Court to throw the Government servant out and restore possession to the landlord when that landlord has never shown his need ..... X X X X Extracts X X X X X X X X Extracts X X X X
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