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Bhanjee Munjee and anr. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectConstitution;Property
CourtMumbai High Court
Decided On
Case NumberO.C.J.A. No. 8 of 1952 and Misc. Appln. No. 118 of 1951
Judge
Reported inAIR1952Bom476; (1952)54BOMLR693
ActsBombay Land Requisition Act, 1948 - Sections 6; Constitution of India - Articles 13, 14, 31(2) and 226; Bombay Land Requisition Ordinance, 1947; Gambling Act; Prohibition Act
AppellantBhanjee Munjee and anr.
RespondentState of Bombay
Appellant AdvocateJamshedji Kanga and ;N.A. Palkhiwala, Advs.
Respondent AdvocateH.M. Seervai, Adv.
Excerpt:
bombay land requisition act (bom. xxxiii of 1948), section 6 - premises requisitioned for ' public purpose namely for housing a person without accommodation' --premises allotted to first informant of suppressed vacancy of premises--whether premises requisitioned for 'public purpose ' under act.;certain premises were requisitioned by government under section 6 of the bombay land requisition act, 1948, and the purpose of the requisition was stated to be 'a public purpose namely for housing a person without accommodation'. under this order the premises were allotted to the first informant who had informed the government that these premises were suppressed vacancy. this was in pursuance of the policy of government to allot suppressed vacancies to first informants. on the question whether in..........made by the state on 22-8-1951:, and that order stated that the premises were requisitioned for a public purpose, and the public purpose was; 'housing a person without accommodation.'[3] act xl of 1951 was enacted in november 1951 and that act validated orders passed previously, if in fact the premises were requisitioned ton a public purpose; and in this case government, relying on the amending act, sought to establishin the court below that in fact the premises were requisitioned for a public purpose; and the question that arises for our determination is whether those promises were in fact requisitioned for a public purpose. the learned judge below has taken the view that the premises were requisitioned for a public purpose and has, therefore, dismissed the petition. it is from that.....
Judgment:

Chagla, C.J.

[1] The petitioners who are the appellants before us challenge an order of requisition made by the State of Bombay on 24-3-1951.

[2] The order was made under Section 6, Bombay Land Requisition Act, 1948, and it contained a declaration that the premises had become vacant on or after the month of May 1950. The order did not state on the face of it the purpose for which the premises were requisitioned. A supplemental order was made by the State on 22-8-1951:, and that order stated that the premises were requisitioned for a public purpose, and the public purpose was; 'housing a person without accommodation.'

[3] Act XL of 1951 was enacted in November 1951 and that Act validated orders passed previously, if in fact the premises were requisitioned ton a public purpose; and in this case Government, relying on the Amending Act, sought to establishin the Court below that in fact the premises were requisitioned for a public purpose; and the question that arises for our determination is whether those promises were in fact requisitioned for a public purpose. The learned Judge below has taken the view that the premises were requisitioned for a public purpose and has, therefore, dismissed the petition. It is from that order of dismissal that this appeal is preferred.

[4] Now, the 'public purpose' has been set out in full detail in the affidavits made by the State on this petition, and that purpose may be stated as fairly as it is possible, and the purpose is that inasmuch as there is a considerable scarcity of housing accommodation in the city of Bombay, it is necessary to regulate distribution of premises which 'fall vacant, and that distribution should be brought about on an equitable basis. Therefore, the object and purpose of the Government was to distribute equitably premises which fell vacant and in respect of which intimation was given by the landlords as required by the Land Requisition Act.

[5] Now, 'public purpose' has been defined by the Privy Council accepting the definition given by Batchelor J. which is to be found in Hamabai Framji v. Secretary of State, 17 Bom. l. r. 100 and from that definition it is clear that that purpose only is a public purpose which has for its primary object the general interest of the community. It may be that in achieving the public purpose an individual or individuals may be benefited, but the benefit to the individual or individuals must be indirect. The object to be aimed at must be the general interest of the community. It is also well settled, and indeed it must be so, that Government must be prima facie the best judges of what public interest is. Courts of law are far removed from the heat and dust of every day administration, and it is for the Government to administer the State, and they must be in the best position to decide how that administration should be carried on, and therefore Courts of law would ordinarily be most reluctant to take a different view of what public interest is from the view taken by the State. But when the Court is satisfied that the view taken by Government is capricious or arbitrary or when that view has been arrived at on an entirely unreasonable basis, the Court has ample jurisdiction to interfere and to come to the conclusion that the purpose for which the premises were requisitioned was not a public purpose. Now, we do not think that there can be any dispute that housing the homeless is a public purpose. Indeed in the situation in which our country is placed to-day there could not be a more laudable purpose, a more deserving purpose, than to find shelter for people who are without any shelter. It may be very important to house Government servants and those who are engaged in the service of the State. But it is equally important to see that the members of the public are also given reasonable accommodation so that they could feel certain that they have a roof over their heads. It is necessary to emphasise the fact that Government itself realises that distribution of available accommodation should be made not on any unreasonable, arbitrary or capricious basis, but on an equitable basis, and therefore the policy of the Government can only be justified provided we find that in fact what the State is doing is distributing available accommodation on an equitable basis. The claim put forward by the State is not that available accommodation is being distributed on any basis or on a practical basis but the claim is put forward that the distribution is an equitable distribution of available accommodation. Emphasis is put and rightly put in more than one place in the several affidavits filed by the State on this aspect of the case, that what the State is doing is equitably distributing the available accommodation.

[6] Now, let us consider this policy of equitable distribution as is being carried on by the State of Bombay. It is pointed out on behalf of the State that when the Bombay Land Bequisition Ordinance, 1947, came into force members of the public were informed that they could apply to the Accommodation Department for allotment of premises which became vacant, and a large number of applications were received from members of the general public. It was then found that the number of vacancies arising and intimated to Government were not large enough to meet the heavy demand for accommodation of Government servants, Government Departments, and members of the general public who required accommodation. It was also found by Government in the working of the Land Beqnisition Act that landlords did not in all cases give intimation about vacancies, with the result that there were, to use an expression which has now become a matter of ordinary usage, several 'suppressed vacancies.' In this state of affairs, a Press Note was issued by the Government on 7-1-1948. In this Note the policy of Government was announced that the Government had carefully considered the suggestion made by various people and had decided that premises should be allotted to persons who disclose them provided :

'(1) his information relates to a vacancy which lias been suppressed by a landlord or which has been unlawfully filled by a landlord or a tenant after the coming into operation of the Ordinance, and

(2) the person giving information genuinely needs accommodation.'

[7] The Note goes on to state further that 'the question of giving cash or other rewards to persons giving similar information, but not needing accommodation themselves, is under the consideration of Government and a separate announcement will follow shortly.' Another Press Note was issued on 2lst January 1949, and by that Press Note Government announced a change in its policy and the change was tbat it had decided to restrict the activities of the Bombay Land Requisition Office only to making allotments for Government and other public purposes. The public were, therefore, requested not to keep on sending fresh applications to the accommodation branch or report suppressed vacancies. Therefore, it is clear that at this stage the Government gave up its policy of giving available accommodation to the homeless and confined its activities to finding accommodation for Government servants. Then came the Press Note of 32nd December 1950. In that Press Note the members of the general public were again told that they should refrain from making any approach to the Controller for allot, ment of residential or not-residential accommodation. But the Press Note goes on to state; 'The Controller is, however, allotting suppressed vacancies to the first informants.' They were also asked not to trouble the Controller but that they would be informed of the results of the inquiries as soon as they were completed. The policy enunciated by the last Press Note of 22nd December 1950, admittedly still continues and that is the policy which was given effect to when the premises in question were requisitioned and allotted to the allottee. It is common ground that the premises were allotted to the first informant who informed the Government of the alleged fact that the premises in question were suppressed vacancy. The question that arises is whether in view of the policy as enunciated by Government it could be said that the premises under consideration were requisitioned for a public purpose.

[8] Now, the learned Judge has pointed out that a first informant is a necessary social evil. We do not think it is necessary to emphasise that members of the public should co-operate with the Government in enforcing every law that is put upon the statute book. But it is necessaay to emphasise the fact that there is all the difference in the world between a member ot the public who out of his sense of civic duty co-operates with Government and the member of the public who does so out of a sense of pecuniary benefit, or out of expectation of a reward which he would be given by reason of the service rendered by him to the State. The learned Judge below himself, and rightly, in unequivocal terms has condemned the institution of public informants. He has rightly pointed out that this Court has always looked down upon such an individual and has considered him to be an infamous person who often thrives on the troubles and difficulties of members of society. Mr. Seervai has pointed out to us how difficult it is for Government to administer this law, a very difficult law, unless Government get the co-operation of the landlords by intimating vacancies, and when Government find that landlords do not co-operate and are not sufficiently law-abiding the working of the Act almost becomes impossible. We, therefore, realise that in this state of affairs it may be necessary, however unfortunate it may be, to utilise the services of first informants in order to detect suppressed vacancies and in order to have available accommodation for requisition. But it is a very far cry from utilising first informants and if necessary rewarding them properly to the position taken up by Government and which position we will presently analyse that the first informants must be rewarded by the allotment to them of the premises which they have found to be suppressed vacancies.

[9] The present policy of Government is clearly this. Available accommodation is to be given only to Government servants and first informants. Mr.. Seervai says that any and every first informant) will not get accommodation but it is only that first informant who himself is homeless and who is in need of accommodation. That is correct. But what Mr. Seervai overlooks is the fact that in this policy the needs of all members of the public are completely ignored and brushed aside except the needs of the infinitesimal minority represented by the first informants. We would not like to say so, but we think we must, that that policy results in this that Government looks after only that section of the public which has been looked upon by these Courts as an infamous section. It is indeed strange that Government by their policy should ask the members of the public not to represent to them their needs at all. No application can be received from any member of the public however great his need might be. Therefore, Government have deliberately put themselves in this position that.they would only consider the needs of the first informants and of nobody else, and as the learned Judge below has himself found that evert where a first informant is not in need of accommodation and the suppressed vacancy is not allotted to him, Government does not consider the need of any other member of the public, but the available accommodation falls as it were into a common pool to bo drawn upon for a Government servant or for other public purpose.

Mr. Seervai says that it is impossible for Government to satisfy the needs of thousands of homeless people in Bombay, and for administrative reasons they must restrict the operation of their department to a few members of the public whoso needs can be legitimately satisfied. We can quite understand the difficulty of Government that looking to the number of premises available they cannot possibly try and satisfy the needs of every one. We can also understand Government for administrative reasons laying down one reasonable basis on which they would allot accommodation. But what is the hasis which Government has adopted today The only basia is that out of the large public which is in need, which is in difficulty, they would only allot accommodation to those persons who act as first informants and who report suppressed vacancies. We really fail to understand how it can possibly be urged that this is a reasonable basis which the Court should accept nor can we understand the argument that this is a mode of equitable distribution of available accommodation. If the Government policy is to help the general public by trying and supplying them with accommodation wherever possible, Government should at least satisfy themselves as to what the needs of the public are. But Government, as we said before, have so announced their policy that they have made it impossible for the members of the public ever to inform them what their needs are or for Government ever to consider what their needs are. Government today only considers the needs of Government servants and the needs of first informants. The rest of the public is kept in the outer darkness to fend for themselves as best as they can. Mr. Seervai says that we should sympathise with Government's difficulties and we should not try and interfere with the working of this department if we can possibly take the view that the policy enunciated by Government is not arbitrary or capricious. We would certainly not have interfered if it is possible to support this policy on any principle whatsoever. There is obviously a discrimination in this policy. There is obviously a .classification in this policy. There is obviously an attempt to rule out a large section of the public from the benefits of the Act. Discrimination, classification and ruling out of a large section of the public may all be supported on some reasonable basis, and we have done our best to find out how it can be said that picking out one section of the community, and that section the first informants, for the proud privilege of being the recipients of the favours of the State as a result of the working of this Act, can possibly be a reasonable classification which should appeal to this Court.

[10] As the facts are not disputed in this case, viz., that the vacancy was given to the first informant, on what we have stated, it is clear that the purpose is not a public purpose as defined by the Act. We may point out that Government can administer this Act and can investigate into suppressed vacancies and bring them to light even with the assistance of first informants without necessarily giving them the reward of the premises which they have discovered to be suppressed. It is difficult for us to understand why the first informants would not be able to do their work for any other reward except the reward which the Government holds out. There are first informants who help Government to enforce the Gambling Act, there are first informants who help Government to enforce the-Prohibition Act, and these Acts are fairly well enforced and the first informants are not paid out of the subject-matter of their discovery. A pecuniary reward has been very often found to bo-sufficient to get the necessary services from first informants! Similarly in this case Government can get suppressed vacancies reported, and once they are reported, Government must find some method whereby they should consider the needs of the whole public which is in need, and not of a section selected by them. It is impossible for hold that when only the interest of the first informants is served by the policy of the Government it can possibly be the interest of the general public as required for the true interpretation of 'public purpose' to which we have drawn attention.

[11] A point was also urged by Sir Jamshedji that the order was bad on the ground that the requisitioning authority did not apply its mind to-the making of the order. It is unnecessary to consider that question because we have held in favour of the appellants on the first point raised by them. The result is that the appeal succeeds, the order of the learned Judge below will be set aside and there will be an order in terms of prayer (c) with costs throughout, including costs reserved.

[12] Mr. Seervai has also contended that a petition for a writ of mandamus does not lie. In view of our decision in State of Bombay v. Laxmidas 54 BOM. L. 681 we have rejected that contention.

[13] Appeal allowed.


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