Case: Shah &amp; Co., Bombay Vs. The State Of Maharashtra &amp; Anr

of the Requisition Act. Therefore, the contention of the learned counsel for the petitioner, that the transfer 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. 27. 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) 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 (l) (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 (5). 28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, 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. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review. 29. In this connection, we have also been referred to certain decisions of this Court, where 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. 30. Counsel for the respondents, Mr. Bindra, contested the claim of the petitioners, of violation of Art. 19 (1) (f) of the Constitution, on two grounds viz., (a) that the assignment relied on, by the petitioners is only a colourable device for really obtaining a transfer of tenancy rights, which is prohibited by S. 15 (1) of the Rent Act, and hence it is not saved by clause 2 of the Notification; and (b) inasmuch as the Requisition Act is governed by Art. 31 (2) of the Constitution, in view of the decision of this Court in Sitabati Devi v. State of West Bengal Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) the Act cannot be tested by reference to Art. 19 (1) (f) of the Constitution. But Mr. Sorabji, learned counsel for the petitioners, urged that the transaction satisfies the requirements of clause 2 of the Notification and the said decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) does not apply; in case that decision applies, counsel urged for a reconsideration of that decision. 31. 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 this ground, this petition must fail. 32. In the view expressed above, it becomes unnecessary, in this case, to consider either the scope of the decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) or as to whether that decision requires reconsideration.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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. (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 it otherwise would, under S. 15 (1) of the Rent Act31. 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 this ground, this petition must fail28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, 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. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review29. In this connection, we have also been referred to certain decisions of this Court, where 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.