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Heman Santlal Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberMisc. No. 201 of 1950
Judge
Reported inAIR1951Bom121; (1951)53BOMLR355; ILR1951Bom656
ActsBombay Land Requisition Act, 1948 - Sections 6(4); Constitution of India - Articles 31(2), 31(5); Code of Civil Procedure (CPC) , 1908 - Order 27-A, Rule 1
AppellantHeman Santlal
RespondentState of Bombay
Appellant AdvocateJamshedji Kanga, ;M.M. Javeri, ;R.J. Joshi and ;N.A. Palkhiwala, Advs.
Respondent AdvocateC.K. Daphtary, Adv. General, ;M.M. Desai and ;K.T. Desai, Advs.
Excerpt:
.....his grievance, & his substantial grievance, is that the requisition act entitles the executive to requisition property not merely for a public purpose but for any purpose, & therefore an important limitation laid down by the constitution under article 31(2) is not present in the requisition act. the case of the sub-tenant clearly & obviously falls under section 6(4) (a) or section 5 & we have only dealt with the narrow question whether the provisions with regard to requisitioning or taking possession of property contained in the requisition act are valid in view of the fact that the constitution came into force on 26-1-1950, & the orders of govt. sir jamshedji wanted to argue that the amending act xxxix [39] of 1950 was bad inasmuch as it was not reserved for the consideration of the..........ownership of property or possession of property passed to the state under an order issued by the state & article 31(2) placed two limitations upon the power of the state either to acquire ownership or possession of any property & these two limitations were that the state could only acquire or take possession of property for a public purpose & the second limitation was that it could only do so provided it gave compensation. we also took the view that article 31(1 dealt with a different topic from the topic dealt with under article 31(2) & that the expression 'deprivation' used in article 81(1) was wider & had different connotations than'acquisition' or 'taking possession'. our view was that article 31(1 really dealt with the powersof the state which under the american constitution are.....
Judgment:

Chagla, C.J.

1. A petn. was presented before Tendolkar J. by one Heman Santlal Alreja alleging that he was a sub-tenant of certain premises & that Govt. on 29-5-1950, had issued an order under Section 6(4)(a), Bombay Land Requisition Act, 1948, requisitioning the premises of which he was a sub-tenant, & that the order passed by Govt. was void because according to him Section 6 (4) (a) of the Act was void as contravening the provisions of the Constitution. As the question raised was of considerable importance & as several other petns. were pending before Tondolkar J. which raised the same question, Tendolker J. refd. the matter to a D. B. & in doing so the learned Judge raised several questions for our decision. As we shall presently point out, we propose to decide only those questions which directly arise from the facts of this particular petn. It is always inadvisable to travel outside the facts of a particular case & express hypothetical opinions which may only embarrass Judges who may have to consider cases in future which arise on different facts. This is particularly so when we are dealing with our Constitution which is a new enactment & which always raises questions of great difficulty & complexity.

2. It would first be necessary to consider the impugned provisions of the Act in question. The Act was passed on 11-4-1948, & the object of the Act was to provide for the requisition of land, for the continuance of requisition of land, & for certain other purposes. Section 5 gave power to the Govt. to requisition any land for any purpose & thelimitation on that power was 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, Section 6 provided for requisition of vacant premises & it cast certain obligations upon the landlord to give intimationwith regard to a vacancy. Sub-section (4) of Section 6 provided :

'Whether or not an intimation under Sub-section (1) is given & notwithstanding anything contained in Section 5, the State Govt. may, by order in writing-

(a) requisition the premises & may use or deal with the premises in such manner as may appear to it to be expedient; or

(b) require the landlord to let the premises to specified persons or class of persons or in specified circumstances.'

3. Now as pointed out before, the order issued by Govt. is under Section 6 (4) (a) & the order purports to requisition the premises in possession of the peter. The challenge made by the petnr. both to Section 6 & Section 6 is that after the Constitution was enacted, viz. 26-1-1950, these sections became void under Article 13 of the Constitution inasmuch as they contained provisions which are inconsistentwith the provisions of Part in which deal with fundamental rights. It is not disputed that when the Act was passed in April, 1948, the Legislature that passed it had legislative competence & the Act continued to be a valid Act & all its provisionswere valid until 26 1-1950, when by reason of' the passing of the Constitution & by reason of Article 13 of the Constitution certain provisions of the Act became void. What is contended on behalf of the petnr. is that Sections 5 & 6 give power to the Govt. to requisition property for any purpose, & any provision of law which gives such power to the State is contrary to the fundamental rights embodied in the Constitution. The right to property under the constitution is dealt with under Article 19(1)(f) & Articles 31 & 32. We had occasion to consider the scheme of these Articles in a recent judgment in Dwarkadas Shrinivas v. Sholapur Mills, : AIR1951Bom86 & it is necessary perhaps briefly to recapitulate what we then held & the view we took of these articles. Our view was that Article 31(2) dealt with cases where ownership of property or possession of property passed to the State under an order issued by the State & Article 31(2) placed two limitations upon the power of the State either to acquire ownership or possession of any property & these two limitations were that the State could only acquire or take possession of property for a public purpose & the second limitation was that it could only do so provided it gave compensation. We also took the view that Article 31(1 dealt with a different topic from the topic dealt with under Article 31(2) & that the expression 'deprivation' used in Article 81(1) was wider & had different connotations than'acquisition' or 'taking possession'. Our view was that Article 31(1 really dealt with the powersof the State which under the American Constitution are known as Police powers, & Article 31(1 gave the power to the State to deprive a subject of his property without paying compensation. But our view was that the deprivation must be something different from acquisition or taking possession, & one of the instances we pointed out was that there may be oases where the State may be compelled to extinguish the right of a subject in a property without the State itself becoming the owner or taking possession of the property. Such cases were dealt with under Article 31(1. We also took the view that Article 19(1)(f) did not control Article 31(1 or 31(2) & that Article 19(1)(f) only dealt with cases where the subject was the owner or in possession of property. In those cases the Constitution gave him the right to hold & dispose of property, & under Sub-clause (5) the State's power to impose restrictions upon such right were limited. Those restrictions could only be reasonable & it was for the Ct. to determine whether those restrictions were reasonable or not. But if a citizen was deprived of his property under Article 51(1) or his ownership or possession was taken away under Article 31(2), then no question of any right could arise under Article 19(1)(f). Article 19(1)(f) applied only t o Such citizen who still held property & whose property was not taken away under Article 31(1) or 31(2). If his property was taken away, then he could challenge such deprivation under Article 31, but not under Article 19(1)(f). We find support in the view we took in A. K. Gopalan v. The State : 1950CriLJ1383 & now the Advocate General has drawn our attention to a recent judgment of the S. C. in Charanjilal Chowdhary v. The Union of India, : [1950]1SCR869 which seems to afford fresh support to the view we took of these two articles.

4. Now, the case of the petnr. clearly falls under Article 31(2) because his grievance, & his substantial grievance, is that the Requisition Act entitles the executive to requisition property not merely for a public purpose but for any purpose, & therefore an important limitation laid down by the Constitution under Article 31(2) is not present in the requisition Act. We have no-doubt that the requisition Act contravenes the provisions of Article 31(2). The question is whether the Act having been passed in April 1948, there is any other provision in the Constitution which saves a law which contravenes Article 31(2). Let us look at the scheme of the other sub-clauses of Article 31. Sub-clause (3) provides obviously for prospective legislation, legislation which may be passed subsequent to the enactment of the Constitution & it provides that no law as is refed. to in Clause (2) shall have effect unless it is reserved for the consideration of the President & has received his assent. Sub-clause (4) deals with Bills which were pending at the commencement of the Constitution in the different Legislatures & it providesthat when these Bills have been passed, they should be reserved for the consideration of the President & should receive his consent, & if theydo receive his consent, such laws shall not be called in question in any Ct. of law although they may contravene the provisions of Sub-clause (2). AndSub-clause (6) deals with laws which were already enacted not longer than 18 months before the commencement of the Constitution, & with regard to these laws the provision in Sub-clause (6) is that within three months from the commencement of the Constitution they should be submitted to the President for his certification & if the President certifies these laws, they shall not be called in question on the ground that they contravene the provisions of Sub-clause (2). Therefore the scheme of Article 31(a)(4) & (6) is clear. It dealswith future legislation, it deals with legislationwhich was pending in the form of Bills when the Constitution came into force, & it deals with legislation which was on the statute book for a period not longer than 18 months before the commencement of the Constitution. It is clear that the Actwe have to consider does not fall into any one of these three categories. It certainly does not fall under Clause (a), it was not in the form of a Bill at the commencement of the Constitution & so it does not fall under Clause (4), & it was passed longer than 18 months before the commencement of theConstitution & so it does not fall under Clause (6). We then turn to Article 31(5) & that provides that nothing in Clause (2) shall affect the provisions of any existing law other than a law to which the provisions of Clause (6) apply. Therefore the Constitution, in the very article which deals with the subject matter covered by Article 31(2), provides that that article will in no way affect any existing law, the qualification being an existing law which falls under Clause (6), viz. a law which came into force only 18 months before the coming into force of the Constitution. But with regard to all the other existing laws, laws which existed prior to the 18 months mentioned in Clause (6), those laws were not to be affected by the provisions of Article 31(2). Therefore the test of validity which the Constitution laid down under Article 31(2) was not to be applied to all existing laws other than the laws which fall under Article 31(6). If the law was valid, then it would not become void under Article 13 because it contravened any of the provisions of Article 31(2).

5. Therefore the position is that although the Act in question is an Act dealing with requisition of property, as it was enacted by a competent Legislature prior to the 18 months' limitation laid down in Article 31(6), it is a valid law although it provides for requisition for a purpose other than a public purpose. Sir Jamshedji has argued that Article 81(5)(a) merely refers to the provision with regard to compensation contained in Article 81(2). In other words, Sir Jamshedji's argument is that if there is a law which does not provide for compencation, then if it was passed prior to the 18 months' period laid down in Article 31(6) it shall not be challenged under Article 13. But according to Sir Jamshedji, Article 81(5) does not deal with the question of acquisition being for a public purpose. According to Sir Jamshedji every Act dealing with requisition must provide that the requisition is for a public purpose, & if it does not so provide, on the Constitution coming into force such an Act is void under Article 13. The difficulty of Sir Jamshedji is that he cannot lay his finger on any provision of the Constitution which prohibits the Legislature from acquiring or taking possession of any property otherwise than for a public purpose. That topic is only dealt with in Article 31(2) & we have held in the appeal to which I have refd. that the limitation upon the Legislature that it can only acquire or take possession of property for a public purpose is implicit in Article 31(2), Therefore, if those are the two limitations upon the power of the Legislature under Article 31(2), it is inarguable that when Article 31(5) refers to Clause (2) as not affecting the provisions of any existing law we should hold that what the Constituent Assembly was thinking of was only one limitation in Article 31(2) & not the other limitation. With the full knowledge that Article 31(2) contained two limitations the Constituent Assembly chose to save all existing laws other than those which fell under Article 31(6) although those laws may not embody one or both the limitations contained in Article 31(a). Therefore, in our opinion, it is clear that the present Act, although it may contravene the provisions of Article 31(2), is saved by Article 81(5)(a).

6. We wish to make it clear that we are only dealing with the provisions of the Act to the extent that they refer to requisition of land or premises. Sir Jamshedji has drawn our attention to the other provisions of the Act where limitations are put upon the landlord's right to use his property in such manner as he thinks proper, & the argument has been advanced before us that whatever may be the position with regard to orders under Section 6 (4) (a), as far as orders under Section 6(4)(b) are concerned, which require the landlord to let the premises to specified persons or class of persona or in specified circumstances, that is a restriction upon the right of property of the landlord, & according to Sir Jamshedji as such restriction can be placed for any purpose & not necessarily for a public purpose, such restriction is not reasonable A therefore should not be upheld under Article 19(5). As we said before, we are proposing in this matter only to deal with the facts of the case. We have not before us a landlord who is complaining of the violation of his fundamental right to use his property in such manner as he likes. We have before us a sub-tenant whose grievance is that his tenancy right has been requisitioned by the Govt. & he has been deprived of the possession of the premises of which he is a sub-tenant. The case of the sub-tenant clearly & obviously falls under Section 6(4) (a) or Section 5 & we have only dealt with the narrow question whether the provisions with regard to requisitioning or taking possession of property contained in the Requisition Act are valid in view of the fact that the Constitution came into force on 26-1-1950, & the orders of Govt. challenged in this petn. were issued subsequent to that date. The Advocate-General also feels that we should not be asked to express an opinion on any other set of facts which may require consideration at the proper time.

7. A minor question has also been refd. to us & that is the proper interpretation of Order 27A, Civil P. C. That is a new provision & it was recently embodied in the Code. In this petn. the State of Bombay was a party & the procedural question that we have to decide is whether, although the State of 'Bombay was a party to this petn. it was incumbent upon the Ct. to give notice to the Advocate-General. There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the Constitution & Rule 1, order 27A makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State & to the Attorney General if it concerns the Union Govt. As the rule stands, it is clear & explicit & as I said before mandatory & it makes it incumbent upon the Ct. in every suit where such a question arises to give notice to the Advocate General or the Attorney General as the case may be. What is urged before us is that Rule 2 makes it clear that the object of the Legislature in providing Rule 1 was that the Advocate-General or the Attorney General should have notice only in cases where the State was not a party, the contention being that it is the State that should have notice & not the Advocate-General or the Attorney General as such, & that the reason for giving the notice to the Advocate-General or the Attorney General was that they represented respectively the State & the Union Govt. & therefore, it is contended that it would be futile & useless to give notice to the Attorney General or the Advocate-General when the Union Govt. or the State were already parties to the suit or proceedings. For this purpose our attention is drawn to Rule 2 which provides that the Ct. may at any stage add the State or the Union as a party where upon receipt of notice under Rule 1 or otherwise the Advocate-General or the Attorney General applies for the addition of the State or the Union as a party, & what is argued is that Rule 2 suggests that the object of giving notice under Rule 1 is to make the State or the Union a party to the suit or proceeding, & if the State or the Union is already a party then no object can be served by giving notice to the Advocate-General or the Attorney General. In our opinion, as the Advocate-General has rightly pointed out, there may be cases where the Advocate. General may be required although theState is a party to the suit. He has given an instance which may perhaps be no longer appropriate that the Advocate-General represents charity apart from his being the legal adviser of the State & a conflict may arise between the State & the charity & it would be for the Advocate-General to decide whether he should take up-cudgles for the charity or represent the State in that particular matter. It is also known that the Advocate-General is the leader of the Bar. He not only represents the State, but he also represents the bar. A question may arise where there may be a conflict between the rights & privileges of the members of the Bar & the rights of the State & in such cases it would be very desirable not only to have the State before the Ct. but also the Advocate-General in his capacity as Advocate General, & therefore we do not see any reason why we should read in Rule 1 that the Advocate-General or the Attorney-General has to be givers notice merely as the mouth-piece of the respective Govts. They have independent rights & independent functions to discharge & as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation. The Advocate-General has also drawn our attention to Rule 3 which deals 'with costs & which provides that where under Rule 2 Govt. is added as a deft. in the suit, the Advocate-General or the Govt. shall not be entitled to or liable for costs. This seems to suggest that the draftsman of the rule contemplated that even where the State or the Union was added as a party to the suit the Advocate-General may still appear & therefore the question of costs had to be dealt with both with regard to the State & the Advocate-General, It may be that in majority of cases the matter may be academic & not of much importance, but we accede to the argument of the Advocate-General that we should not put any limitation upon Rule 1 when the Legislature-did not choose to do so. We, therefore, hold that in every case which involves a question refd. to in Rule 1 notice must be given by the Ct. to the Advocate-General or the Attorney. General as the case may be.

8. Now turning to the questions refd, to us by Tendolkar J. We will reframe question 1 & the question so reframed is :

'Whether the provisions of the Bombay Land Requisition Act 1948, dealing with requisition or taking possession of land or premises are void on 26-1-1960, upon the coming into force of the Const. of Ind.' ?

& our answer is in the negative. Question 2 does not arise following upon the judgment. Question 3 also does not arise. Sir Jamshedji wanted to argue that the Amending Act XXXIX [39] of 1950 was bad inasmuch as it was not reserved for the consideration of the President & his assent was not received as required by Article 31(3). Sir Jamshedji also wanted to argue that it was not competent to the Legislature to validate retrospectively a provision of the law which had became void under Article 13 of the Constitution. But it is unnecessary for us to decide either of these two questions because we have hold that the unamended Act did not contravene the provisions of the Constitution & because the order of requisition which is challenged was issued under the old Act & not under the Amended Act. Question 4, it is unnecessary to consider. Question 5, we answer in the affirmative.

9. The petn. will go back to Tendolkar J. to dispose of it in the light of this judgment.

10. We have heard counsel with regard to costs & we think the fairest order to make would be to request the learned Judge who will be disposing of the petn. to deal with the coats of this issue which we have decided. We feel that as he will be seized of the merits of the case & the ultimate decision will be given by him, it will be better that he should deal with the coats of this issue.


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