LexSHAH & CO. BOMBAY versus THE STATE OF MAHARASHTRA & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
SHAH & CO., BOMBAY
.v.
THE STATE OF MAHARASHTRA & ANR.
April 6, 1967
[K. SUBBA R.Ao, C.J., M. HIDAYAl'ULLAH, R. S. BACHAWAT,
J. M. SHBLAT AND C. A. YAIDIALINGAM, JJ.]
Bombay La11d Requisition Act, 1948 (Bom. 33 of 1948) s. 6-TrallS·
fer of going concern, tenancy recited Jncidenral-Difiertnt business carri-
ed on-Requisition, if within jurisdiction-I;' infringes
Arts. 19(1)(/)
and (g) of the Co11Sritution.
Bombay Rent,.-Hotel and Lodging House
Rates Control Act, 1947 (Bom. 57 of 1947) s. lS(l)-Notificatio11 per-
mittln11 assignnunt-Requisltio11 under Requisition Act-Effect,
By an assignment deed, the assignors, te11ant of a premises in Bim.
bay, carrying on shoe business therein, assigned to the petitioners
the
whole of the business, as a going concern together with the tenancy and
occupancy rights of the premises. It was, also, recited that no considers·
tion was paid for the transfer of the tenancy rights, but they were ·trans-
ferred as incidental to the sale of the business as a going concern. The
petitioners, thereafter, carried on in the premises their business as impor ..
ters of foreign liquor, provisions, and medicines. The premises
were
requisitioned under s. 6(4) (a) of the Bombay Land Requisition Act for
a public purpose alle(ling that it was a case of suppressed vacancy. The
petitioners filed a wnt petition in this Court challenging the requisition
on the grounds that (i) the assignment was permitted under cl. (2) of
a notification issued by the Government under the proviso to s. IS(!)
of the Bombay Rents, Hotel and Lodging House Rates Control Act, and
a proper construction of the relevant provisi•)ns in the Requisition Act,
which were to be read harmoniously with the provisions of the Rent Act.
would make it clear that there was no question of any vacancy having
amen, in this case, so as to give jurisdiction co the respondents to re·
quisition the premi•es; and (ii) the provisions
of the Requisition Act
v.·ere unconstitutional as infrlp.ging the
petiti~)ner's
rights
under Art".
19(1)(f) and (g) of the Conslitution.
HELD : The petition must be dismissed.
(i) Section 6 of the Requisition Act gives power to the State Gov-
ernment to requisition vacant premises and, it is, in that context,
that
Explanation (a) to this section, has to be understood. Under the Expla-
nation, there wilt be deemed to be a vacancy if a tenant assigns or trans~
fers, in any manner, his interest in the premises. Section 15 of the Rent
Act, cannot be read into any part of the Rcq11isition Act, much less with
s. 6 of the latter Act.
Under s. 6 of the Requisition Act, notwithstand-
ing the fact that an assi&nment of tenancy rights may have been made,
which is permk•ible under the Rent Act, such an
assignment can he
deemed to create a vacancy of the premises, so as to give jurisdiction to
the State Government to requis.ition the same. The·re is no question of
the legislature. having given something to the petitioner, under the Rent
Ac~. by permitting an assignment, under s. J 5, and taking it away by
requisitioning the premises, under s. 6 of the Requisition Act. [479A-D]
The Rent Act was created for the purpose of amending and consoli•
dating the law relating to the control of rents and repairs of certain pre-
mi>es, of rat"' of hotels and lodging houses and of evictions. The fact
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SH.\11 a: co. 11. MAHAM$HTM (Valdialingam, J.)
467
that the aaslpent claimed by the petitioner may come under cl. ( 2) of
the Notification, . will only enable the peti~oner tD be in occup~tion !'f tl!e
premises under the Rent Act and the asa1gnment of tenancy rights 1n htS
favour will not become illepl or unlawful, aa it otherwise would, under
•. 15(1) of the Rent Act. The Requisition Act was paased to provide for
the requisition of land, for the continuance of requiait:on of land and certain
other purposes. The various provisions, in this Ac~ relate tD the circums-
tance under which requisition of land can be made, for a public purpoee,
and the procedure to be adopted for the same, as well as the payment
of com{lellsation, and deals with a matter, so totally different from that
dealt with by the Rent Aot. The two Acts cannot be <X>nsidered to be
in pari materla. [478C-H]
(ii) The Requisition Act, does not deal with
trade, or business, u
such, and hence, the constitutionality of that Act, having regard to Art.
19(1) (g) 1 does not arise for conExcerpt shown. Read the full judgment & AI analysis in Lexace.