JUDGMENT
(1) This is a petition for a writ of mandamus or a write direction, or order of the nature of mandamus under Article 226 of the Constitution, restraining the respondent, the State of Bombay, from enforcing a requisition order.
(2) The petitioners are husband and wife, and since 1939 petitioner 1, the husband, was a tenant of flat No. 3 in Oval View, Queens Road, Bombay. In this flat petitioner 2, the wife, started keeping paying guests in one of the rooms. In 1947 in flat No. 7 in the same building became vacant, and the tenants of the flat sub-let the flat to petitioner 2, subletting being then allowed under the law. In April 1947 the petitioners with their daughter shifted to flat No. 7 and have been living there ever since. From that date onwards petitioner No. 2, the wife, expanded the business of taking, paying guests and conducted it in the whole of flat No. 3 which is on the first floor of the said building. On 23-1-1952, a show cause notice was issued calling upon the petitioners to show cause why flat No. 3 should not be requisitioned under Section 5 or Section 6(4)(a) and (b).
Thereupon an inquiry was held at which petitioner 2 appeared and produced all the documentary evidence that was in her possession. The petitioners’ attorneys also had an interview with the Controller of Accommodation. The petitioners allege that the then Controller of Accommodation, Mr. Sontake, was satisfied that there was no case for requisitioning the fiat. But thereafter Mr. Sontake ceased to occupy that office; and on 23-7-1952, an order of requisition was passed which declares that the tenant of the said flat had not actually resided therein for a continuous period of six months immediately preceding the date of the order and proceeds to requisition the premises under Section 5 (1), Land Requisition Act. It is this order which is challenged on the petition; and the challenge is based mainly on the ground that Section 5, Bombay Land Requisition Act does not apply to business premises at all.
(3) Now, turning to Section 5, Sub-section (1) thereof is in the following terms:
“If in the opinion of the State Government it is necessary or expedient so to do, the State Government may by order in writing requisition any land for the purpose of the State or any other public purpose:
Provided that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section." The word "land" which occurs in this sub-section has been defined in Section 4 (1) as including buildings, and therefore reading this sub-section by itself, it confers on the State Government the power to requisition any land including any building or part thereof. Out of this general power, the proviso takes out only such building or part of a building as has actually been resided in by the owner, the landlord or the tenant, as the case may be, for a continuous period of six months. Therefore, if Sub-section (1) stood by itself, there cannot be the least doubt that there was power in the State Government to requisition any premises which do not fall within the proviso and therefore to requisition business premises. (4) But what is urged is that by reason of Section 5, Sub-section (2), which ought to be read with Section 5, Sub-section (1), the State Government has no power to requisition any premises other than residential premises. Now Sub-section (2) is In the following terms:
“Where any building or part thereof is to be requisitioned under Sub-section (1), the State Government shall make such enquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided.”
The sub-section makes it imperative on the State Government (a) to hold enquiry, and (b) to make a declaration that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months.
(5) Now, what is urged on behalf of the petitioners by Mr. Mistree is that such a declaration is wholly inappropriate to the case of business premises, and therefore it could not have been within the contemplation of the Legislature that the power of requisition should apply to business premises. In the first instance, it must be remembered that Sub-section (2) is a procedural section, while Sub-section (1) is a substantive section which confers upon the State Government the power to requisition; and it would be contrary to the recognised canons of construction of statutes to allow a procedural section to whittle down or modify a substantive provision of the law. But, quite apart from this, it appears to me that the entire object of Sub-section (2) of Section 8 is to ensure that the proviso to Sub-section (1) is rigorously observed by the State Government. It is for that purpose that an enquiry has to be made and it is for that purpose that a declaration has to be made that the owner, the landlord or the tenant, as the case may be, had not actually resided therein for a continuous period of six months.
There may be businesses, and it is a matter of common knowledge that there are in the city of Bombay businesses, where persons connected with the business reside in a part of the business premises; and therefore even in the case of business premises, it would still be obligatory on the State Government to make enquiries to satisfy itself that no person entitled to reside in the premises has resided therein for a continuous period of six months. It may be that in the case of business premises, pure and simple, where no person resides, the enquiry may be formal in its character and the declaration of no consequence at all. But the Legislature obviously provided both the enquiry and the declaration, because they were anxious to secure that no person who had lawfully resided continuously for a period of six months in any premises should be evicted therefrom by an order of requisition. In my opinion, therefore, the only premises which are protect ed from requisition are premises in which the owner, landlord or tenant has continuously resided for a period of six months immediately preceding the date of the order. All other premises are subject to requisition, and business premises are included amongst them. The petition must, therefore, on this ground fail.
(6) But, quite apart from this ground, Mr. Joshi for the State has urged that irrespective of whether Section 5 applies to business premises or not, the petition must fail in any event. His contention is that even if business premises were taken to be excluded from the scope of Section 5 of the Requisition Act, in the present case petitioner 1 was a tenant of the flat and resided therein admittedly till April 1947 when he shifted to flat No. 7 with his wife and daughter. Quite obviously, therefore, he has not been resident in the said flat for a continuous period of six months prior to the date of requisition. This contention also appears to me to be well founded. The petition does not allege that the business that was carried on was the business of the tenant, viz., the husband. Indeed it states in unequivocal terms that petitioner 2 the wife, started the business and therefore it is not a case of any tenant of business premises at all. The tenant was of residential premises in which the wife started the business of keeping paying guests in one room only. When that tenant ceased to reside in the flat which he tenanted, the provisions of Section 5, Land Requisition Act were thereby attracted.
(7) In any view of the case, therefore, this petition must fail. The rule is discharged and the petition dismissed with costs.
(8) I have disposed of this petition on the merits. But if all the facts that are set out in the petition are true, I have no doubt that Government, upon a proper representation being made to them in that behalf, will give due consideration to the facts, because if the facts are established, it seems to me to be a matter of grave hardship on the petitioners.
(9) Mr. Joshi on behalf of the State agrees not to enforce the requisition order for a period of one week to enable the petitioners to make a proper representation to the State Government.
(10) Rule discharged.