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Pratap Pandurang Pitale Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Misc. Petn. No. 403 of 1953
Judge
Reported inAIR1955Bom271; (1954)56BOMLR966
ActsConstitution of India - Articles 19, 19(1), 19(5), 31 and 31(2); Bombay Land Acquisition Act, 1948 - Sections 5 and 6(4)
AppellantPratap Pandurang Pitale
RespondentState of Bombay
Appellant AdvocateR.J. Joshi, Adv.
Respondent AdvocateG.N. Joshi, Adv.
Excerpt:
.....xxxiii of 1948), section 6(4)(a), proviso - constitution of india, article 31, 19(1)(f) and (5)--premises requisitioned by government after declaration that premises vacant--power exercised by government whether under sphere of eminent domain--applicability of article 31 or 19(1)(f) of constitution. ;requisition is included within the term 'acquisition' in article 31(2) of the constitution of india, and the power that is exercised under the bombay land requisition act, 1948, is under the sphere of eminent domain.;by an order of requisition under section 6(4)(a) of the bombay land requisition act, 1948, the government made a declaration that certain premises occupied by the petitioner had become vacant and proceeded to requisition the premises. the petitioner in an application to..........does not apply to such a case. article 19(1)(f) applies to cases where the person entitled to a right to property is in enjoyment of that right and restrictions are sought to he placed on such enjoyment. it is beyond dispute after the decision of the supreme court to which i have just referred that requisition is included within the term 'acquisition' in article 31(2). of the constitution; and the power that is exercised under the bombay land requisition act is under the sphere of eminent domain.it is not alleged that the act provides for the exercise of this power without fulfilling the conditions of article 31(2), viz. that there should be a pub-lie purpose and that the law should provide for compensation, and therefore the requirements of article 31 are fully satisfied. no.....
Judgment:
ORDER

1. This is a petition for an appropriatewrit, direction or order preventing the State ofBombay from enforcing a requisition order dated31-10-1953.

2. The petitioner alleges that since the year 1941 he has been the tenant of flat No. 8 on thethird floor of Neelain Mansion, Tribhowan Road, Bombay. In October 1950 one A.G. Pandit, a close friend of the petitioner's father, died in the said flat. Thereafter on 18-4-1952, Government issued a notice to show cause why the property should not be requisitioned under Section 5 or Section 6(4) (a) of the Bombay Land Requisition Act, 1948. The petitioner showed cause against the notice and the Mehtaji of the landlord also submitted before the Accommodation Officer that the petitioner was his tenant. Nonetheless by the requisition order dated 31-10-1953, Government made a declaration that the premises had become vacant in the month of October 1950 and proceeded to requisition the premises.

3. Now, the only ground on which this petitionhas been argued before me is that the requisition order infringes the fundamental rights of the petitioner guaranteed under Article 19(1)(f) of the Constitution of India. The argument as I see it is that the petitioner, being the tenant, was as such tenant entitled to 'hold' the property in the sense of enjoying it. That is a right conferred under Article 19(1)(f). By the order of requisition his right of holding the property is restricted and the restrictions 'Imposed must be under Article 19(5) 'reasonable restrictions.' In considering whether the restrictionsare or are not reasonable, it is now well settled that the procedure prescribed for imposing suchrestrictions may also be taken into account andthe procedure must also be reasonable.

What is urged by the petitioner is that the Bombay Land Requisition Act,' Section 6(4), confers the power of requisition in cases in which the premises have become vacant. The proviso to that section which enacts that the 'declaration made by Government that the premises were vacant or had become vacant is conclusive evidence enables Government to make a declaration irrespective of whether the premises are in fact vacant or not and is therefore unreasonable and thus the restriction itself on the right of the tenant to enjoy the property is unreasonable.

4. Now, whatever may be the merits of this contention, there appears to me to be a very short answer to the petitioner's plea. The Supremo Court had occasion more than once to deal with the correlation between Art 19(1)(f) and Article Sl. of the Constitution; and in their judgment in -- 'Dwarkadas' v. Sholapur Spinning and Weaving Co. Ltd', : [1954]1SCR674 Mahajan J. dealing with this question observed as follows (p, 126) :

'The true approach to this question is that these two articles really deal with two different subjects and one has no direct relation with the other, namely, Article 31 deals with the field of eminent domain and the whole boundary of that field is demarcated by this article.'

Therefore, where we have a case of the exercise of the power of eminent domain, Article 31 applies and the requirements thereof have to be satisfied, and in my opinion Article 19(1)(f) does not apply to such a case. Article 19(1)(f) applies to cases where the person entitled to a right to property is in enjoyment of that right and restrictions are sought to he placed on such enjoyment. It is beyond dispute after the decision of the Supreme Court to which I have just referred that requisition is included within the term 'acquisition' in Article 31(2). of the Constitution; and the power that is exercised under the Bombay Land Requisition Act is under the sphere of eminent domain.

It is not alleged that the Act provides for the exercise of this power without fulfilling the conditions of Article 31(2), viz. that there should be a pub-lie purpose and that the law should provide for compensation, and therefore the requirements of Article 31 are fully satisfied. No question, therefore, jn my opinion arises of considering whether any' restrictions placed on the enjoyment of property are reasonable restrictions as Article 19(5) does not come into play and Article 19(1)(f) does not apply to the facts of the case.

5. The result, therefore, is that whether, or notthe petitioner was in fact a tenant, Governmentbeing clothed with authority to declare that therewas a vacancy, and having so declared, the declaration is conclusive evidence of that fact andno Court can go behind it. The petition must,therefore, fail and the petition is dismissed andthe rule discharged with costs. Costs fixed atRs. 650.

6. Rule discharged.


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