Decided on September 30,1954

Jhamandas Ramchand Appellant


TENDOLKAR J. - (1.)THIS is a petition for an appropriate writ, direction or order against the State of Bombay restraining them from enforcing an order of requisition dated February 24, 1954.
(2.)THE case of the petitioner is that one Miss Marsh was carrying on a guest and lodging house under the name and style of Marsh Guest House in flat No. 3 on the ground floor of a building known as Jenkins House at Henery Road, Colaba, By a deed of assignment dated October 6, 1951, the said Miss Marsh sold the said business for the petitioner together with its goodwill and tenancy rights for a consideration of Rs. 6,000. The petitioner himself took in boarders after he became the owner of the said boarding house and the flat was being used as a lodging house all along right upto the time when the order of requisition was made. It is the petitioner's contention that the flat having been used as a lodging house it did not constitute 'premises' within the meaning of the definition of that Word in the Bombay Land Requisition Act, 1948, and therefore the flat was not liable to be requisitioned. The Accommodation Officer, Mr. Kulkarni, in his affidavit points out that Miss Marsh was an employee in the G.I.P. Railway at all material times and therefore a Government employee, and as such she was not entitled to carry on any business. The tenancy of the flat originally stood in the name of the father of Miss Marsh and he by his letter dated November 14, 1947, requested the trustees of the Indian Institute of Science who are the owners of the property to transfer the tenancy in the name of Miss Marsh in order to enable her to draw the house rent allowance from the Railway. He further points out that according to the terms of the lease granted by the Bombay Port Trust in respect of the land on which the building stands the premises could not be used except as a private residence. He alleges that Miss Marsh being desirous of devising some method of by -passing the provisions of the Bombay Land Requisition Act conceived of an idea of getting this flat registered under the Bombay Shops and Establishments Act, 1948, as a guest house and the alleged document of transfer was obtained by the petitioner in collusion with the said Miss Marsh in order to defeat the provisions of the Bombay Land Requisiton Act.
Now, if it were material for the purposes of deciding this petiton to determine whether Miss Marsh conducted a lodging house in this flat, since the fact is denied by the Accommodation Officer, in the exercise of my discretion I would have refused to determine that question of disputed fact on a writ, and on that ground alone dismissed this petition; but in the view that I take of the law, the question really becomes irrelevant. What is urged on behalf of the State of Bombay by Mr. Mistree is that assuming that these premises were used as a lodging house, they are still within the definition in the Bombay Land Requisition Act, 1948.

(3.)NOW , the relevant definition is to be found in Section 4(3) and is as follows: Premises means any building or part of a building let or intended to be let separately including -
(i) the garden, grounds, garages and out -houses, if any, appurtenant to such buildings, or part of a building, (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,
but does not include a room or other accommodation in a hotal or lodging house. Now, on the one hand it is contended by Mr. Gupte that what is taken out of the definition of 'premises' is not only 'a room or other accommodation in a hotel or a lodging house' but even the whole hotel or lodging house, whilst what is contended by Mr. Mistree is that the whole hotel or a lodging house falls within the definition, and all that is taken out is 'a room or other accommodation in such hotel or lodging house'. It seems to me that the contention of Mr. Mistree is well founded. In the first instance in defining 'premises' in the earlier part of the definition the Legislature has mentioned 'a building' in contra -distinction to 'a part of a building,' and therefore the Legislature clearly had in mind the distinction between a whole and its part, and where it desired that both the whole and/or the part should fall within the definition, they clearly enumerate both the whole and the part separately. When we come to the exclusion clause, following the same analogy, if the Legislature intended that what should be excluded is a hotel or a lodging house or a room or other accommodation in a hotel or lodging house, one would have expected the Legislature to use the language 'but does not include a hotel or lodging house or a room or other accommodation in a hotel or lodging house.' It is true to say that if a single room or other accommodation cannot be requisitioned, it seems somewhat odd that the Legislature should authorise the requisition of an entire set of rooms or the entire accommodation in a hotel or a lodging house; but that is a question of policy of the Legislature with which I am not concerned. The emphasis laid in the first part of the definition on 'a building or part of a building' and the absence of similar phraseology in the exclusion clause leads me to the conclusion that an entire hotel or lodging house is within the definition of the word 'premises' in the Bombay Land Requisition Act, 1948.

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