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Shah & Co., Bombay Versus State of Maharashtra

1967 (4) TMI 202 - SUPREME COURT

Writ Petition No. 229 of 1966 - Dated:- 6-4-1967 - VAIDYIALINGAM, C.A., RAO, K. SUBBA (CJ), HIDAYATULLAH, M., BACHAWAT, R.S. AND SHELAT, J.M. S. J. Sorabji, A. J. Rana, R. A. Gagrat and B. R. Agaiwala for the Petitioners. N. S. Bindra, R. H. Dhebar, R. N. Sachthey and S. P. Nayyar, for the Respondents. JUDGMENT: The Judgment of the Court was delivered by Vaidialingam, J. In this writ petition, under Art. 32, the petitioner seeks to have quashed, the proceedings taken by the respondents, by way o .....

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oroji Road, Fort, Bombay, was 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 assig .....

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; 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 the assignees, all her beneficial interest and goodwill in the business carried on by her, in the name and style of M/s. Lee & Co., and, as incidental to such assignment, the assignor transfers her entire interest in the tenancy of Shop No. C- 1, on the ground floor .....

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date of this assignment, in their favour, they have been carrying on, in the said premises, their business as importers of foreign liquor, wines, provisions, drugs and medicines. While so, on or about April 7, 1966, an Inspector, of the Office of the Second Respondent, called at the shop of the petitioners and took a statement from one of the partners of the firm. According to the petitioners, a copy of the assignment deed, dated August 18, 1964, was also given to him; and the various rent bill .....

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s, to show cause as to why the requisitioning of the premises should not be made. The petitioners' legal advisers sent a reply, on August 12, 1966, stating that one of the chief partners is absent from Bombay, due to the illness of his father, and requested for postponing the hearing of the matter. A request wits also made to the Officer, to indicate to what was the nature of the inquiry that is stated to have been made by the Government and, on what basis the premises is sought to be requis .....

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ther 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 .....

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vacant after December 4, 1947 and, to requisition the said premises for a public purpose, viz., for housing the Maharashtra State Government Office. It is also stated that on enquiry it has been found that the premises has become vacant in August 1964 and that the requisitioning is made under s. 6(4)(a) of the Requisition Act. The petitioners' counsel sent a further communication, on September 27, 1966, to the second respondent, expressing surprise at the orders of requisition passed in res .....

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y decided by it, and. directing the petitioners to hand over vacant and peaceful possession immediately. The petitioners, in this writ petition, challenge all the proceedings, taken by the respondents, and, in particular, the orders dated September 19, 1966 and September 24, 1966. In the affidavit filed in support of this writ petition, it is stated that assignments, similar to the one in favour of the petitioners, on the basis of which the petitioner is in possession of the properties, are perm .....

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cerned, to requisition the building, under s. 6(4)(a) of the Requisition Act. Explanation (a), to S. 6 of the Requisition Act, it is stated, when it deals with a premises deeming to be vacant on assignment or transfer, 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, to .....

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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 petitioners are carrying on, in the said premises, the business of importers and dealers .....

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ne of their departments viz. the Directorate of Ayurveda and, therefore, issued the notice regarding their proposal to requisition the said property. It was, after the petitioners were, given an opportunity, that the order was passed. The respondents further averred that the provisions of the Rent Act cannot be read into the Requisition Act, and, under the provisions of the Requisition Act, it was clear that there had been a vacancy, when the assignor of the petitioners ceased to carry on busine .....

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19(1)(g) of the Constitution. This will be a convenient stage to refer to the material provisions of the statutes, as well as the Notification, issued by the Bombay Government. The Rent Act was an Act passed to amend and consolidate, the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. It came into force on February 13, 1948. In the statement of Objects and Reasons, it is stated that control over rents and other accomod .....

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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, 1 .....

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ase, is- dealt under cl. (5) of s. 10(1), which is, as follows "Premises interest in which is transferred under the proviso to Subsection (1) of section 15, on or after the date of the coming into force of the Bombay Rents, Hotel and Lodging House Rates Control (Second Amendment) Act, 1953, as incidental to the sale of a business together with the stock-in-trade and goodwill thereof." Section 13 deals with the circumstances, under which a landlord may recover possession, and one of the .....

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operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification." Under this proviso, the Government of Bombay, have issued a Notification, dated September .....

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ll thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in-trade and goodwill thereof." At this stage, it may be stated that it is by virtue of this clause that. the petition ersurge that the assignment, taken by them, from M/s Lee & Co., on August 18, 1964, is valid and that, as they are entitled to be in possession, on the basis of that assignment, there is no vacan .....

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ate 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 .....

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rious expressions, including 'land', 'premises' and 'to requisition'. Section 5 enables the State Government to requisition any land, for any public purpose. The proviso to S. 5(1) exempts the particular building or part thereof, referred to therein. Sub-s. (2) of s. 5 provides for the State Government making an enquiry when action is taken under sub-s. (1) and to make a declaration in the order of requisition, and it also provides for such declaration being conclusive ev .....

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provides for the manner in which and the period, within which, the intimation is to be given. Sub-S. (3) prohibits a landlord, without the permission of the State' Government, from letting out or occupying or permitting the occupation of the premises, for the period mentioned therein. Sub-s. (4) of s. 6 is, as follows : "(4) 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): .....

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(1) and such declaration shall 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 dee .....

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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, two contentions regarding the validity of the proceedings taken by the respondents, viz., (i) that a proper construction of the relevant provisions in the Requisition Act, which are to be read harmoniously with the provision of the Rent Act, would make it clear that t .....

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. On the other hand, Mr. Bindra, learned counsel for the respondents, has urged that the assignment, on which the petitioners relied, is nothing but a colourable device for obtaining a transfer of the tenancy rights, which is illegal, under s. 15(1) of the Rent Act. Therefore, they have not acquired any rights, to be in possession of the property, in the face of the statute, and hence they cannot claim that there has been any infringement of their fundamental rights. According to Mr. Bindra, eve .....

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nto the picture at all, inasmuch as the Requisition Act does not, in any way, affect the right of the petitioners, to carry on their trade or business. In any event, according to him, the restrictions must be considered to be saved by Arts. 19(5) and 19(6). We shall assume, for the present purpose, that the assignment, relied on by the petitioners, is not a colourable device, for obtaining a transfer of tenancy rights, and discuss the first contention, urged for the petitioners. According to the .....

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o 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 la .....

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uisition Act, can relate, or must be considered to relate, only to prohibited assignments under s. 15 of the, Rent Act. If that is so, according to the petitioners, in this case there is no vacancy when an assignment of the tenancy rights, in the manner prescribed under cl. (2) of the Notification, was taken by the petitioners. Therefore, inasmuch as there is no vacancy, the State Government has no right or jurisdiction to requisition the premises, under s. 6 of the Requisition Act. We have been .....

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ngs, or have the same purpose or object." The learned author, further states, at p. 537 : "To be in pari materia, statutes need not have been enacted simultaneously or refer to one another." Again, at p. 544, it is stated : "When the legislature enacts a provision, it has before it all the other provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a separate act. It is evident that it has in mind the provisions of a pr .....

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le construction, both are to be so construed that effect is given to every provision of each. Statutes in pari materia although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other." In Craies, 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 .....

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or 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 terms of every other statute which it does not in expres .....

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tion: "Accordingly, the phrase 'lobbying activities' in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. In a long series of decisions we have acted on this principle. In the words of Mr. Chief Justice Taft, 'it is our duty in the interpre .....

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he principles enunciated in the above decisions and in the text-books, are well-settled. But the question now is as to whether the Rent Act and the Requisition Act can be considered to be in pari materia. Can it be stated that these two statutes are in pari materia, in the sense that they relate to the game person or thing or to the same class of persons or things ? For this purpose, it is necessary to examine the scope and ambit of the two enactments, concerned. We have already referred to the .....

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ssion 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 transfe .....

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in his favour will not become illegal or unlawful, -as it otherwise would, under s. 15(1) of the Rent Act. Now, coming to the Requisition Act, here again, we have already referred to the fact that it was passed to provide for the requisition of land, for the continuance of requisition of land and for certain other purposes. The various provisions, in this Act, relate to the circumstances under which requisition of land can be made, for a public purpose, and the procedure to be adopted for the s .....

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to requisition vacant premises and, it is, in that context, that Explanation (a) to this section, has to be understood. Under that Explanation, there will be deemed to be a vacancy if a tenant assigns or transfers, in any manner, his interest in the premises. Section 15 of the Rent Act, cannot be read into any part of the Requisition Act, much less with S. 6 of the latter Act. Under s. 6 of the Requisition Act, notwithstanding the fact that an assignment of tenancy rights may have been made, whi .....

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ansfer or assignment of tenancy rights, contemplated under Explanation (a) to s. 6 of the Requisition Act, must be understood in a limited manner, in the sense that they deal with prohibited assignments, under the Rent Act, cannot be accepted. The first contention, of the learned counsel, for the petitioner, will have, therefore, to be rejected. Then, the second question as to whether the Requisition Act is constitutionally invalid, as affecting the rights of the petitioners, under Art. 19(1)(f) .....

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ade 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 c .....

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ity, and that decision is made conclusive and placed beyond the pale of judicial review under the proviso to s. .6(4); there is no machinery provided in the Act for redress or for correcting any errors, in respect of adverse orders passed by the authority; there is no legal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is no obligation on the authorities to give reasons for passing a particular order. .....

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it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do not think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners. Counsel for the respondents, Mr. Bindra, contested the claim of the petitioners, of violation of Art. 19(1)(f) of the Cons .....

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