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State of Bombay Vs. Mohanlal Kapur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 31 of 1951
Judge
Reported inAIR1951Bom404; (1951)53BOMLR669; ILR1952Bom597
ActsBombay Land Requisition Act, 1948 - Sections 6(4); Bombay Land Requisition (Amendment) Act, 1950
AppellantState of Bombay
RespondentMohanlal Kapur
Appellant AdvocateH.M. Seervai and ;R.J. Joshi, Advs.
Respondent AdvocateN.A. Palkhivala, Adv.
DispositionAppeal dismissed
Excerpt:
.....premises--order of requisition--whether order should state the purpose of the state or any other public purpose.;an order of requisition, issued under section 6(4)(a) of the bombay land requisition act, 1948, is invalid if it does not contain the necessary declaration that the property is being requisitioned for a purpose of the state or a public purpose.;the very foundation of the power of the state to requisition premises under the act is the existence of a purpose of the state or any other public purpose. the purpose of the state or any other public purpose is not a purpose which in the opinion of the state satisfies the qualifications laid down in the statute. whether a particular purpose is a purpose of the state or any other public purpose is a justiciable issue, and the court..........that the order did not recite that the requisition was for the purpose of the state or for other public purpose. the order in question is to the following effect :'whereas, on inquiry it ii found that the premisesspecified below had become vacant on or after the monthof april 1950. now, therefore, in exercise of the powers conferred by clause (a) of sub-section (4) of section 6 of the bombay land requisition act, 1948, the government of bombay is pleased to requisition the said premises.' then follows a description of the premises. 2. now, mr. seervai's first contention is that the law does not require that the order should state the purpose for which the premises are requisitioned. in order to appreciate this contention it is necessary to look at the language of section 6 (4) as.....
Judgment:

Chagla, C.J.

1. An order of requisition dated December 12, 1950, was challenged by the petitioner, and the learned Judge below Mr. Justice Shah held that the order was bad on the ground that the order did not recite that the requisition was for the purpose of the State or for other public purpose. The order in question is to the following effect :

'WHEREAS, on inquiry it ii found that the premisesspecified below had become vacant on or after the monthof April 1950.

Now, therefore, in exercise of the powers conferred by Clause (a) of Sub-section (4) of Section 6 of the Bombay Land Requisition Act, 1948, the Government of Bombay is pleased to requisition the said premises.' Then follows a description of the premises.

2. Now, Mr. Seervai's first contention is that the law does not require that the order should state the purpose for which the premises are requisitioned. In order to appreciate this contention it is necessary to look at the language of Section 6 (4) as amended. That section provides:

''Whether or not an intimation under Sub-section (1) is given and notwithstanding anything contained in Section 5, the State Government may, by order in writing. (a) requisition the premises for the purpose of the of the State or any other public purpose and may use or deal with the premises for any such purpose in such manner as it may appear to it to be expedient.'

It is clear, and Mr. Seervai does not dispute it, that the very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public surpose. It is also beyond dispute that the purpose of the State or any other public purpose is not a purpose which in the opinion of the State satisfies the qualifications laid down in the statute. Whether a particular purpose is a purpose of the State or any other public purpose is a justiciable issue and the Court may investigate into the purpose for which the State has requisitioned a particular property. If the Court is satisfied that the purpose for which the requisition was made was not a purpose of the State or any other public purpose, then it would be open to the Court to say that the order was made without the condition precedent being satisfied. It is also clear that before an order of requisition can be made, the requisitioning authority must have determined for itself what the purpose of the State of other public purpose is for which the requisition order is being made. It is not open to the requisitioning authority to make up its mind as to why it wants to requisition the premises or what use it wants to put those premises after the requisition is made. The condition precedent and the foundation of the exercise of the power must be present in the mind of the requisitioning authority before it issues the order by which it takes away the property of the subject. Now, on the question as to whether theorder in writing contemplated by Section 6 (4) requires the purpose for which the property is being requisitioned to be stated or not depends upon the construction of the sub-clause. What the order in writing is to be is stated in Section 6 (4) (a), and Seervai's contention is that all that the order in writing requires is the statement that the premises are being requisitioned, or, in other words, Mr. Seervai suggests that the order in writing only qualifies 'requisition the premises' and not the phrase that occurs after the word 'premises'. There is no reason why looking to the place of the expression 'order in writing' in Section 6 (4) and looking to the language of Clause (a), we should hold that the 'order in writing' only qualifies 'requisition the premises' and not the whole expression ''requisition the premises for the purpose of the State and any other public purpose.' It is clear to my mind that the order in writing qualifies the whole expression up to 'public purpose' from the fact that when the Legislature did not intend that expression to qualify any subsequent words they have again used the expression 'and may use or deal with the premises for any such purpose.' Therefore, the Legislature did not intend that the order in writing should qualify ''use or deal with the premises for any such purpose' and therefore they repeated the expression 'and may' which occurs in the operative part of Section 6 (4). Therefore, if that be the true construction, then the order in writing must not merely contain a statement that the premises are being requisitioned, but it must also state the purpose of the State or any other public purpose for which the premises are being requisitioned.

3. It is next argued by Mr. Seervai that in fact if that be the true construction, the order does contain the necessary averment required by Section 6 (4) (a). Mr. Seervai says that although the words of Section 6 (4) (a), viz. 'for the purpose of the State or any other public purpose' are not set out in terms, by a reference, they are so set out, and Mr. Seervai says that the very fact that the order says that the power is being exercised under Clause (a) of Sub-section (4) of Section 6 of the Bombay Land Requisition Act makes it clear that the power that is being exercised is the power referred to in Section 6 (4) (a), not any power but the power with the limitations laid down in Section 6 (4) (a). Therefore, by reference to the section the order does comply with the mandatory provisions of Section 6(4),

4. Even if we were to accept this argument of Mr. Seervai, the next question that arises--and that is of considerable importance--is whether it is sufficient for the requisitioning authority merely to state that they are requisitioning a certain property for the purpose of the State or any other public purpose, or whether it is necessary for the requisitioning authority to indicate in the order the specific purpose of the State or any other public purpose. Once it is accepted thatthe State can only requisition a premises for purposes of the State or any other public purpose and that is the condition precedent for the exercise of its power to requisition, if requisition is done for a purpose other than that indicated in Section 6 (4) (a), then the order of requisitioning is bad. It will immediately be appreciated how necessary it is for the subject to know for what purpose the requisitioning powers of the Government are being exercised. The validity of the order must appear on the face of the order. The subject who is served with the order should be in a position to know that the order has been validly made. He should also be in a position to know that if the order is defective, he has a right to challenge it and he has a right not to obey it. If the order merely states that the property is being requisitioned for the purposes of the State or any other public purpose, it would be impossible for the subject to determine whether in fact the specific purpose for which the order of requisition was passed was a purpose of the State or any other public purpose. The officer or authority exercising the power under Section 6 (4) may honestly and bona fide come to the conclusion that a particular specific purpose which he or it bad in mind was a purpose specifying the conditions laid down in Section 6 (4) (a), yet in law it may not be a purpose of the State or a public purpose. Whether that is so or not could only be tested provided the specific purpose was set out in the order. Therefore, it is necessary that the subject should be given proper intimation that the exercise of the power of requisitioning by the Government is a proper exercise and a valid exercise, and that intimation can only be given to the subject by stating the specific purpose for which the requisitioning is being made on the face of the order.

5. Mr. Seervai has drawn our attention to the difficulties that may arise if we were to put this interpretation upon Section 6 (4) (a). He himself dealing with some other argument drew our attention to the fact that the argument of inconvenience is the last argument to which we should have recourse. But even assuming we were to appreciate the argument of inconvenience and difficulty, we see no difficulty that should result to the State in our putting this interpretation upon the section, because, as I said before, if the Government realises the limitation of its power under Section 6 (4) (a), it will appreciate the fact that there must be some specific purpose which it must determine upon before it issues an order of requisition. If such a specific purpose has been determined upon, we see no difficulty whatever in the way of the Government in stating that object on the face of the order. The Courts have always construed liberally a purpose of the State or public purpose. After all, ultimately it is for the State and the Government to lay down the policy and prima facie to decide what is inthe interests of the State or the public, and, therefore, Government should not feel any difficulty in stating what in its opinion has led to an order being made which deprives the subject of his property, because the interests of the: State are paramount and the interests of the individual must take a second place.

6. Mr. Seervai has also drawn our attention to the fact that in the proviso to Section 6 (4) where it was intended by the Legislature that something definite should appear in the order the Legislature has made provision for it, and what is pointed out is that in the proviso the Legislature has specifically provided that the declaration as to the vacancy to be made must be embodied in the order itself. The reason why this is not so stated in Section 6 (4)(a) with regard to the purpose for which the requisition is to be made is obviously because the earlier expression 'order in writing' in Section 6 (4) qualifies the whole of the expression occurring in Section 6 (4) (a), and therefore, it would have been redundant for the Legislature again to state that the order in writing should also contain the purpose for which the premises were being requisitioned.

7. Therefore, in our opinion, the view taken by Shah J. that the order is invalid ex facie, inasmuch as it did not contain the necessary declaration that the property was being requisitioned for a purpose of the State or a public purpose, was right. The appeal, therefore, fails and must be dismissed with costs.


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