TMI Blog1967 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying on business of boot and shoe makers, in the name and style of Messrs. Lee Co. She was also a tenant of Flat No. G-8/9, situate in the first floor of the same building and also of godown No. H/5, in the same building. The said flat, as well as the godown, were occupied by Mrs. Dorethea, as tenant, in connection with and for the purposes of her shoe business. By an assignment deed, dated August 18, 1964, Mrs. Dorethea Kumpig Leo, is stated to have assigned, in favour of the petitioners, the whole of her business, as a going concern, together with the name and goodwill, as also the assets, furniture, fixtures, articles and stock-in-trade, belonging to the said shoe business, together with the full benefit of the tenancy and occupancy rights in the premises, viz., the shop, the flat and the godown, for a sum of ₹ 15,0001-. The recital in the document is that the parties have agreed that out of the purchase price of ₹ 15,0001-, ₹ 1,000/is the price of the furniture, fittings, articles and things and stock -in-trade, which have been already delivered over to the assignees, the petitioners. The further recital is that the assignor assigns and transfers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25, 1966, agreeing to the postponement of the case and fixing another date for appearance, in response to the original notice. On August 30, 1966, the partner, who was stated to be away from Bombay, sent a reply to the second respondent, from Chandigarh, stating that in view of his father's illness, he is not able to appear before the Officer and requesting for further adjournment. On the next day, viz., September 1, 1966, there was a further communication, by the lawyers of the petitioners, to the second respondent, reiterating the right of the petitioners to be in occupation of the premises, under the assignment, dated August 18, 1964. As there was no vacancy, a request was made in this letter, to the second respondent, to withdraw the notice, dated August 8, 1966. On September 19,1966, the second respondent informed, by letter, the petitioners that, on the basis of the evidence produced before him, in respect of the premises, in question, he has come to the conclusion that this was a case of suppressed vacancy and therefore liable to be requisitioned, under s. 6(4)(a) of the Bombay Land Requisition Act, 1948 (Bom. Act XXXIII of 1948) (here- inafter referred to as the Requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be considered to refer only to assignments or transfers which are not permitted under the Rent Act. Inasmuch as transfer or assignment of the entire interest of the transferor or assignor, in a leasehold premises, as incidental to the sale of a business, as a going concern, together with the stock-in-trade and goodwill, is permissible, under cl. (2) of the Notification issued by the Bombay Government, which protects the assignment in favour of the petitioners, there is no vacancy of the premises, much less a vacancy which may be deemed to exist by virtue of the Explanation to s. 6 of the Requisition Act. It is also stated that the provisions of the Requisition Act infringe the petitioners' fundamental right, guaranteed to them under Arts. 19(1), (f) (g). As to how these points are developed, will be indicated later. On behalf of the respondents, it is stated that the assignment, in favour of the petitioners, was in effect and substance, a transfer, not of the business of the assignors, but only of the tenancy rights of the assignors in the said premises. It is pointed out that the assignment is stated to be of the business of boot and shoe makers, whereas the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intended to check an inflationary rise in rents and hotel and lodging house rates in areas where there was an acute scarcity in accommodation. It is further stated that both the Acts will expire very soon, but the conditions themselves, which led to the enactment of those measures, still continued in an even more aggravated form and therefore it was found essential that effective control should be continued. Hence it has been decided to introduce a revised and self- contained Act, covering control over rents of residential and other premises, as well as over hotel and lodging house rates. Section 3(2) provides for the Rent Act remaining in force upto and inclusive of March 31, 1968. Section 5 defines the various expressions. Section 5 (11) defines the expression 'tenant' and, under sub-cl. (aa), a 'tenant means 'any person to whom interest in premises has been transferred under the proviso to sub-section (1) of section- 15'. Section 10C enables a landlord to claim an increased rent in respect of the premises, referred to therein, and to the- extent indicated in the said section One of the premises, in respect of which a landlord can ask for an increase, is- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession, on the basis of that assignment, there is no vacancy. of the premises, so as to give jurisdiction to the authorises to pass an order of requisition. On December 4, 1947, the Government of Bombay promulgated the Bombay Land Requisition Ordinance, 1947 (Ordinance No. V of 1947). In the statement, annexed to this Ordinance, it is stated that there is great pressure on accommodation available in urban areas and, as the powers of requisitioning, which the Government had, under the Defence of India Rules, have lapsed, it has become necessary to regulate the distribution of vacant premises; and therefore, it was felt essential to have powers of requisitioning. Clause 2 of this Ordinance defines the various expressions like 'land', 'premises', 'to requisition' etc. Clause 3 'provides for the Provincial Government, if it is of the opinion that it is necessary or expedient to do so, to pass an order in writing, requisitioning any land for any public purpose. Clause 4, again, provides for requisitioning premises which are vacant, on the date of the Notification, and whenever any premises became vacant, either by the landlord ceasing to occupy the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be conclusive evidence that the premises were or had so become vacant. Sub-s' (5) provides for the punishment to be awarded to a landlord for violation of sub-ss. (2) and (3) of s. 6. There is an Explanation to s. 6, of which cl. (a), which is material, for our purpose, is as follows: Explanation.-For the purpose of this section- (a) premises which are in the occupation of the landlord, the tenant or the sub-tenant, 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 subtenant ceases to be in occupation upon termination of his tenancy, eviction, assignment or transfer in any other manner of his interest in the premises or 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. It has already been mentioned that the notice, dated September 19, 1966, as well as the consequential order, dated September 24, 1966, which are under challenge in this writ petition, were issued under s. 6(4)(a) of the Requisition Act. Mr. Sorabji, learned counsel for the petitioners, urged, in the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the same or identical circumstances, viz., scarcity of accommodation and, therefore, both the statutes pertain to the same matter. In other words, both the statutes are in pari materia. On the date of the coming into force of the Rent Act, it is clear that the Legislature itself contemplates, by virtue of the powers conferred on the State Government under the proviso to s' 15(1), that by virtue of the Notification, transfer of leasehold interest in particular types of leases, under particular circumstances, will be permitted. By virtue of cl. (2) of the Notification, issued by the State Government on September 24, 1 948, transactions, like the assignment, under which the petitioners claim, have full validity and legal effect. When such a permissible assignment of a leasehold interest has taken place, there cannot be any vacancy, either in fact or in law. Therefore, when the Legislature in Explanation (a) to s. 6, of the Requisition Act, refers to a vacancy 'deeming to occur' on an assignment or transfer of a tenancy interest, the assignment or transfer dealt with therein must be one, which does not come under the permissible assignment or transfer, by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on 'Statute Law', 6th Edition, at p. 133, it is stated Where Acts of Parliament are in pari materia, that is to say, are so far related as to form a system or code, of legislation, the rule as laid down by the twelve, judges in Palmer's Case [(1785) 1 Leach C.C. 4th ed. 355], is that such Acts 'are to be taken together as forming one system, and as interpreting and enforcing each other'. In the American case of United Society v. Eagle Bank [(1829) 7 Conn. 457,470], Hosmer J. said: 'Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things. In Maxwell on 'The Interpretation of Statutes', 11th Edition, at p. 153, the principle is stated thus : An author must be supposed to be consistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of eviction, payment of rent, increase of rent under certain circumstances and the circumstances under which the landlord can get possession of the property. There are provisions relating to residential and other premises and hotels and lodging houses. It is, in that context, that s. 15 occurs, which prohibits a tenant to sub-let or transfer his rights, in the absence of a contract to the contrary. But certain types of assignment or transfer of tenancy rights can be permitted, under certain circumstances, by virtue of a notification issued by the State Government, under the proviso to s. 15(1) of the Rent Act. But, if a transfer or assignment of a tenancy right does not come within the purview of assignments or transfers permitted by the notification issued by the State Government, a transfer or an assignment of a tenancy right will be illegal and unlawful, under s. 15(1). Therefore, the fact that, in this case, the assignment claimed by the petitioner may come under cl. c(2) of the Notification, will only enable the petitioner to be in occupation of the premises under the Rent Act and the assignment of tenancy rights in his favour will not become illegal or unlawful, -as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rights of the petitioners, under Art. 19(1)(f) or (g), will have to be considered. This involves consideration from two points of view, viz., as to whether the Requisition Act deals with property, in which case the attack based upon Art. 19(1)(f), will have to be considered; or, as to whether the Requisition Act deals with trade or business, so as to attract Art. 19(1) (g). So far as this is concerned, after a perusal of the entire provisions of the Requisition Act, we are satisfied that the said Act deals only with property and not with trade or business. We have already dealt with the main features of the Requisition Act and it will be clearly seen that it deals only with property. Therefore, the Requisition Act, does not deal with trade, or business, as such, and hence, the constitutionality of that Act, having regard to Art. 19(1)(g), does not arise for consideration. But, it may be that an order of requisition passed by the respondents, may interfere with the right of a party to do business. That is an aspect, which will be considered later, after dealing with the contention of the petitioner that the Requisition Act contravenes Art. 19(1)(f) and is not saved by Art. 19( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioners, urged that the transaction satisfies the requirements of clause 2 of the Notification and the said decision in Sitabati Devi's case [1967] 2 S.C.R. 949 does not apply; in case that decision applies, counsel urged for a reconsideration of that decision. From the various averments, contained in the counter- affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948, we are of the view that the assignment, claimed by the petitioners, must be regarded only as a colourable device, for really obtaining a transfer of tenancy rights, which is otherwise prohibited by s. 15(1) of the Rent Act. We are further of the view that the transaction, in question, is not saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights, or to carry on any business there, it follows that they cannot complain that any fundamental rights, under Art. 19(1), (f) or (g), of the Constitution, have been infringed. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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