1. The petitioners, who are trustees of A. B. Dubash Trust and as such own a building called 'Villa Ramona' situate at Nepean Sea Road, Bombay, have filed this petition under Article 226 of the Constitution, challenging the allotment order dated November 19, 1965, whereby the requisitioned premises (Flat No. 3 in 'Villa Kamona') have been allotted to Dr. V. S. Sheth, on the ground that the said allotment is contrary to the public purpose, namely, 'housing a Bombay State Government servant' for which the said premises were requisitioned by the then Bombay Government under its requisition order dated January 31, 1957, inasmuch as Dr. Sheth is not a State Government servant but a private individual.
2. The short facts giving rise to this petition may be stated. The premises in question fell vacant in or about December 1956, and the petitioners as the trustees gave intimation of that vacancy to the Government of Bombay. On January 31, 1957, in exercise of the powers conferred under Section 6(4)(a) of the Bombay Land Requisition Act, 1948, the Government issued a requisition order, whereby the said premises were requisitioned for a public purpose, namely, 'for housing a Bombay State Government servant.' On February 2, 1957, the premises were allotted to Shri M. S. Duleepsinghji, a Member of the Maharashtra Public Service Commission. Shri Duleepsingji occupied the premises as a Government allottee till his death. After his death, the Government issued a fresh allotment order on March 14, 1960 in favour of one Dr. M. D. Motashaw, and Dr. Motashaw occupied the premises till about the end of November 1965. It appears that Dr. Motashaw acquired other accommodation for himself some time in the month of October 1965 and informed the Government about his intention to vacate the premises by about November 30, 1965. In anticipation of Dr. Motashaw vacating the premises on November 30, 1965, on November 19, 1965, the respondent issued a fresh allotment order, whereby the premises have been allotted to Dr. Sheth. It further appears that Dr. Motashaw vacated the premises, and Dr. Sheth, the present allottee, has gone into possession of the premises on or about November 30, 1965. It may also be stated that Dr. Sheth, in whose favour the impugned order has been passed, became a Member of the Home Guards for Greater Bombay on or about December 16, 1965, and by his order dated December 22, 1965 the Commandant, Home Guards, Greater Bombay, was pleased to post Dr. Sheth to the Medical Wing with immediate effect. The allotment order in favour of Dr. Sheth is being challenged by the petitioners on the ground that, though a Member of Home Guards, he is not a State Government servant at all, and, as such, the order does not fulfil the public purpose for which the premises were requisitioned and, therefore, be quashed.
3. It may be stated that the initial requisition order issued by the Government under Section 6(4)(a) of the Bombay Land Requisition Act of 1948, clearly recites the public purpose for which it was issued, namely 'for housing a Bombay State Government servant.' Mr. Sorabji, therefore, fairly conceded that he is not challenging the validity of this requisition order. However, he contended that, though the premises have been validly requisitioned for a public purpose and though the premises were, in fact, used by the Government in furtherance of such public purpose by housing a State Government servant initially, the allotment order issued on November 19, 1'965, whereby the premises have been allotted to Dr. Sheth, is contrary to the public purpose for which the premises were requisitioned, inasmuch as Dr. Sheth is not a State Government servant, and, therefore, the allotment order is liable to be quashed or set aside. Mr. Sanghavi appearing on behalf of the respondent has, by way of reply, raised two contentions. By way of a preliminary objection, he first contended that, since the validity of the requisition order was conceded, it would be futile to set aside merely the allotment order, for the petitioners would not get back the premises, as after the impugned allotment order was set aside, the respondent could allot the premises to a State Government servant. He, therefore, urged that the Court should not entertain such a petition. On merits, he contended that Dr. Sheth is a State Government servant under the provisions of the Bombay Home Guards Act of 1947 and the Rules framed thereunder, and, as such, the allotment order in question had been issued in compliance with the public purpose for which the premises were requisitioned.
4. As regards the preliminary point urged by Mr. Sanghavi, I may observe that it is a little difficult to accept the contention put forward by him in that behalf. It was urged by him that the petitioners were not challenging the validity of the requisition order dated January 31, 1957 which had been issued for a public purpose, namely, 'housing a State Government servant', and if that were so, no useful purpose would be served by merely setting aside the allotment order in favour of Dr. Sheth, even if the Court came to the conclusion that Dr. Sheth is not a State Government servant, for, according to Mr. Sanghavi, even if the allotment in favour of Dr. Sheth was set aside by this Court, it would still be open to the State Government to issue another order allotting the premises to a State Government servant; and in that sense the petitioners would not obtain any substantial relief in regard to the premises in question. He, therefore, urged that the relief sought by the petitioners should not be granted to them, and the petition should be dismissed. It is no doubt true that the petitioners have conceded that the initial requisition order is a perfectly valid order, since the premises were requisitioned for housing a State Government servant-which would indisputably be a public purpose-but if, after passing such a valid requisition order, the Government were to issue an allotment order allotting the premises to a person who was not a State Government servant, it is not understood as to why the Court should not strike down such allotment order.
5. Prima fade, if an allotment order is issued whereunder the user of the requisitioned premises is conferred upon a person who is not a State Government servant, it would obviously be bad in law, inasmuch as it would authorise the user of the premises for a non-public purpose, and if such user of the premises for a non-public purpose is brought to the notice of the Court, the Court would not countenance it. After all, under the Bombay Land Requisition Act, 1948, a power has been conferred upon the Government to deprive a citizen of his right to hold or enjoy his property, and such deprivation is permissible only on the ground that the property is required by the Government for a public purpose, and to accept the argument of Mr. Sanghavi would amount to enabling a State Government to perpetuate such deprivation of a citizen's right to hold and enjoy the property and at the same time use such property for a non-public purpose. Secondly, in a given case, it may also be possible for a citizen to satisfy the Court that the Government do not require or need the premises for any public purpose by pointing out that the Government have issued several successive allotment orders which do not fulfil or carry out the public purpose for which the premises may have been requisitioned. Mr. Sanghavi invited my attention to a judgment of the appeal Court, in the case of State of Bombay v. Mohemlal Kaptir (1953) O.C.J. App 123, decided by Chagla C. J. and Shah J., on February 20, 1953 (Urep.). He relied upon certain observations of Chief Justice Chagla in that judgment which run as follows:
With great respect to the learned Judge, what has got to be considered under Section 5 of the Bombay Land Requisition Act is the public purpose underlying the requisition order. If the requisition order is sustained on the ground that the requisition was for a public purpose, it is not for the Court to investigate into the manner in which Government ultimately made the allotment after having made a valid requisition. The ultimate allotment may have some bearing on the bonafides of Government. If the petitioner urges that the requisition was malafide, then undoubtedly the object with which the particular premises were requisitioned may have to be considered and even the allotment order might have to be considered, but in this particular case the bonafides of Government is not attacked. The learned Judge does not say that the requisition was malafide. Therefore, once the requisition is for a public purpose and the requisition is made bonafide, it is not open to the Court to make any further investigation into the circumstances which led the Government to prefer one Government servant rather than another Government servant for the purpose of allotting premises.
Mr. Sanghavi has further pointed out that, following the above observations of the appeal Court, Justice Tendolkar in another petition Mahadeo Baburao Haldankar v. The State of Bombay (1954) O.C.J. Miscellaneous Petition No. 103 of 1054, decided by Tendolker J., on April 23, 1054 (Unrep.), refused to go into the question of the validity of the allotment order that followed the requisition order. In the first place, on facts, the decision in Appeal No. 123 of 1952 is clearly distinguishable. In that case (Mohanlal Kapur's case), the requisition order was for a public purpose, namely, 'housing a State Government servant', and the allotment order was admittedly issued in favour of a State Government servant, Mr. D. G. Mulherkar. But Mr. Justice Tendolkar, who had heard the petition in the first instance, had taken the view that the allotment order was not for a public purpose, because Mr. Mulherkar, in whose favour the allotment had been made, had actually another flat at Walkeshwar Road, and that as Mr. Mulherkar wanted a cheaper flat he had approached the Government and the Government had thereupon requisitioned the flat in question and had allotted it to him and, therefore, the allotment order as well as requisition order were struck down in the trial Court. When the matter went in appeal the appeal Court took the view that once the Court came to the conclusion that the requisition was for a public purpose and that the requisition was made bona fide, it was not open to the Court to make any further investigation into the circumstances which led the Government to prefer one Government servant rather than another Government servant for the purpose of allotting the premises. But all the same, the allotment order in that case was admittedly in favour of a State Government servant, whereas in the present case before me, the allotment in question is in favour of a person who is said to be a private individual and not a State Government servant at all. Secondly, the appeal Court in its decision has pointed out that, in certain cases, for instance where mala-fides were alleged on the part of the Government, the allotment order might have to be considered. I do not, therefore, think that the Appeal Court judgment lays down any proposition that even when the allotment order is shown to be not complying the public purpose for which the premises have been requisitioned, the Court should not interfere. In this view of the matter, the preliminary point urged by Mr. Sanghavi fails.
6. Turning to the principal question which arises on merits, I may state that there is no doubt that Dr. Sheth was not even a member of the Home Guards organisation at the. date when the allotment order was issued by the respondent in his favour; nor was he a member of the said organisation even at the time when he went into possession of the flat, namely, on November 30, 1965. He became a member of the Home Guards for Greater Bombay on December 16, 1965 by an order of appointment made by the Commandant, Home Guards, Greater Bombay, in that behalf. Of course, in the affidavit in reply, it is claimed that the allotment order in question was issued in favour of Dr. Sheth in anticipation of his being appointed a member of the Home Guards for Greater Bombay.
7. Assuming, therefore, that it was open to the State Government to issue an allotment order in favour of Dr. Sheth in anticipation, the question is as to whether he is a State Government servant, so that the allotment in his favour could be sustained on the basis that it was made for satisfying or fulfilling the public purpose for which the premises had been requisitioned. In this behalf, I may again point out that the only plea on the basis of which the allotment order is sought to be justified is to be found in para. 6 of the affidavit in reply, and that plea is in the following words:
I say that the said Allotment Order dated the 10th November, 1965, was made in anticipation of the said Dr. V.S. Sheth being soon appointed as Hon. Surgeon to the Home Guards. Dr. Sheth was appointed to the said post by the Commandant-General of the Home Guards in exercise of the powers under the Home Guards Act, 1947 on the 22nd day of December 1965. I submit that as a member of the Home Guards Organisation the said Dr. Sheth is a Government servant governed by the provisions of the Home Guards Act, 1947, and the Rules made thereunder.
Mr. Sorabjee, therefore, took me through the several provisions of the Bombay Home Guards Act (Bombay Act III of 1947) and the Bombay Home Guards Rules, 1953, and, in particular, having regard to the preamble and the provisions of Section 2 of the Act, he submitted that it was clear that the organisation of Home Guards has been constituted as a volunteer body, members of which are called upon to discharge certain functions and duties in relation to the protection of persons, security of property and public safety, and whenever members of the organisation are called out under Section 4 of the Act they enjoy the same powers, privileges and protection as an officer of the police appointed under any Act for the time being in force. He further pointed out that the services rendered by members of that organisation are rendered voluntarily and no remuneration by way of any salary or stipend is paid to such members, and under Rule 17 officers and members are given allowances but such allowances are for the purpose of meeting their expenses in connection with travelling or conveyance and washing and maintenance of uniforms etc. He further urged that it was common knowledge that membership of this organisation was drawn from various walks of life, and persons belonging to different professions and vocations such as legal practitioners, medical practitioners, business or tradesmen have become members of this organisation, and to none of these persons who have got themselves appointed as members of the Home Guards any of the restrictions contained in the Bombay Civil Services Conduct, Discipline and Appeal Rules apply. In view of these aspects which clearly emerge from a reading of the provisions of the Bombay Home Guards Act and the Rules framed thereunder, Mr. Sorabjee contended that the spirit underlying this organisation is to invoke voluntary service on the part of the members thereof, and in substance the members' of the organisation assist the police force of the State voluntarily in matters like the protection of persons, security of property and maintenance of public safety. He, therefore, urged that a member of the Home Guards organisation could never be regarded as a State Government servant. I find considerable force in these submissions of Mr. Sorabjee. On the other hand, Mr. Sanghavi invited my attention to the provisions of Section 6B and Section 7 of the Act, under which provision has been made for imposing fines and penalties upon any member of the organisation if he, without reasonable cause, neglects or refuses to obey the orders of his superiors or to discharge his functions or duties under the Act. He further pointed out that the Commandant had been given authority to suspend, reduce or dismiss any such member of the Home Guards if he were to neglect his duties. Relying upon these provisions, he urged that, though initially, joining the organisation may be voluntary, it was clear that once a person became a member of that organisation, he was subject to certain types of punishments and penalties, and these provisions indicated that the relationship of master and servant subsisted between the Commandant or Commandant-General of that organization who was appointed by the State and members of the organisation. It is no doubt true that certain punishments and penalties have been prescribed under Sections 6B and H of the Act, but from that circumstance alone, it is difficult to draw the inference that a person joining that organisation becomes a Government servant. It must be borne in mind that the duties which members of that organisation are required to perform under the Act are of a very important character, such as assisting the police in the matter of the protection of persons, security of property and maintenance of public safety and, therefore, if a member, after joining the organisation, were to neglect these duties which he may be called upon to perform in any emergency, it is proper that the Act should prescribe some punishments or penalties in that behalf. But that would not mean that a person when he joins that organisation becomes a State Government servant.
8. But, apart from the several aspects of the Home Guards organisation which Mr. Sorabjee has placed before me and which emerge from a reading of the several provisions of the Act, in my view, Section 9 of the Act gives a clear indication that a member of the Home Guards organisation under the Act is not a State Government servant. Section 9 of the Act runs as follows:
9. Members of the Home Guards acting under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.
Section 9, therefore, makes a deeming provision to the effect that members (c)f the Home Guards organisation are to be deemed 'public servants' under Section 21 of the Indian Penal Code. Now, if one turns to Section 21 of the Indian Penal Code, it will appear clear from Clause 9 thereof that all Government servants, however humble in their office, have been included in the definition of a 'public servant'. Clause 9 of Section 21 runs as follows:
Ninth.-Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government,... and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty.
The concluding portion of cl, 9 clearly indicates that every officer, either in the service or pay of the Government, or remunerated by fees for the performance of any public duty, is denned to be a public servant within the meaning of Section 21. It is well settled that the expression 'officer' is used in the sense of functionary, and every functionary, however humble in his station (including even a peon), who is either in the service of the Government or pay of the Government, is a public servant within the meaning of Section 21 of the Penal Code. That being the position, one fails to understand, if members of the Home Guards were State Government servants, where was the necessity of making a deeming provision in that behalf in Section 9 of the Bombay Home Guards Act. The very fact that under Section 9 it has been provided that members of the Home Guards under the Act are to be deemed to be public servants within the meaning of Section 21 of the Penal Code, indicates that they are not State Government servants, for while enacting Section 9 of the Bombay Home Guards Act, it must be presumed that the Legislature had before it the definition of 'public servant' as given in d. 9 of Section 21 of the Penal Code.
9. In my view, therefore, on a consideration of the scheme of the Bombay Home Guards Act and on a fair reading of the several provisions thereof, it is clear that a member of the Home Guards organisation under the said Act is not a State Government servant. In this view of the matter, the allotment order in question cannot be sustained inasmuch as it has not been passed in furtherance of or for the purpose of fulfilling or satisfying the public purpose for which the premises had been requisitioned under the initial order dated January 31, 1957. On the other hand, by giving accommodation to a private individual, the allotment order serves no public purpose whatsoever and runs counter to the public purpose and, therefore, the same is liable to be quashed.
10. Mr. Sanghavi next contended that, in view of a decision of the Nagpur High Court in Slier Singh v. State of M.P. A.I.R . Nag. 175, a member of the Home Guards will have to be regarded as a person holding a civil post under the State Government, and, therefore, he is a Government servant. In that case, the principal question which arose for consideration before the Court was whether a person, who was appointed a Home Guard under the Central Provinces and Berar Home Guards Act of 1947 and who was holding the rank of District Company Commandant at the material time and who had been dismissed from service by an order passed by the State Government on January 14, 1952, could claim the benefit of the safeguards conferred by Article 311 of the Constitution, or not, and the Nagpur High Court took the view that such a person was a person holding a civil post under the State within the meaning of Article 311 and as such was entitled to have his order of dismissal set aside, on the ground that no reasonable opportunity of showing cause had been afforded to him. The relevant observations on which reliance was placed by Mr. Sanghavi appearing in para. 5 of the judgment are as follows (p. 176) :
The principal point for consideration therefore is whether the petitioner falls under cl-(X) of Article 311 which runs thus:
No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.According to the petitioner, he was holding a civil post under the State. The expression 'civil post' means an appointment or office on the civil side of the administration as distinguished from the military side. As already pointed out, the certificate indicates that the petitioner was an officer in the police force. As stated in the preamble, the Act was passed to create a body of volunteers to supplement the Police Force and to assist in any general measure of public welfare in Madhya Pradesh. There is therefore no doubt that the petitioner holds a civil post under the State.
The argument of Mr. Sanghavi has been that, in this decision, a member of the Home Guards has been held to be a person holding a civil post under the State and the protection under Article 311 has been held to be available to him, and since the protection of Article 311 is available to Government servants only, Mr. Sanghavi has urged that a member of the Home Guards should be regarded as a State Government servant. He also urged that the expression 'person holding a civil post under the State' was equivalent to the expression 'member of civil services of a State'. It is difficult to accept Mr. Sanghavi's contention for more than one reason. In the first place, neither in the affidavit in reply nor in the correspondence has any such plea been raised on behalf of the respondent viz. that Dr. Sheth is a State Government servant because he holds a civil post under the State. In fact, as I have indicated earlier, the only plea specifically raised in the affidavit in reply has been that Dr. Sheth is a State Government servant, inasmuch as he is a member of the Home Guards organisation under the Bombay Home Guards Act, and I have already held above that a member of the Home Guards organisation is not a State Government servant. Apart from that, Article 311 of the Constitution itself makes a distinction between two categories of persons, namely, a person who is a member of civil service of a State (meaning thereby a member of regular cadres of service of the State Government) and a person holding a civil post under the State, and what Article 311 provides is that even if a person were not a member of regular civil services of a State but if he were to hold a civil post under a State, the protection contained in it would be available to him. Lastly, in my view, it is abundantly clear that, in the Nagpur case, the High Court was considering the question whether a person who was a member of the Home Guards organisation under the Central Provinces and Berar Home Guards Act was a person holding a civil post under the State or not, for the purpose of determining the point whether such person would be entitled to the protection under Article 311 of the Constitution, and the High Court took the view that, for purposes of Article 311 of the Constitution, a person who had been appointed a member of the Home Guards under the Central Provinces and Berar Home Guards Act, was a person holding a civil post under the State. I am not concerned in the present case with the question as to whether Dr. Sheth, as a member of the Home Guards: organisation under the Bombay Home Guards Act of 1947, would be a person holding a civil post under the State for the purpose of Article 311 of the Constitution. The question for consideration in the present case arises in a different context altogether, and the question is whether a member of the Home Guards organisation under the Bombay Home Guards Act of 1947 is a State Government servant or not, so that the allotment of requisitioned premises in his favour would be sustained, and that question must be decided with reference to the scheme of the Bombay Home Guards Act, 1947, and the several provisions thereof. After considering the scheme and the provisions of the said Act, I have already come to the conclusion that it is difficult to hold that a member of the Home Guards organisation is a State Government servant. In my view, therefore, the decision relied upon by Mr. Sanghavi is of no avail to him.
11. In the result, I conclude that, inasmuch as the allotment order in question is not passed for fulfilling or satisfying the public purpose for which the premises were requisitioned, the same is liable to be set aside.
12. I, therefore, make the rule absolute with costs.