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Ali Gulshan Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 110 of 1952 and Misc. Petn. No. 14 of 1952
Judge
Reported inAIR1953Bom337; (1953)55BOMLR308
ActsBombay Land Requisition Act, 1948 - Sections 5, 6 and 6(4); Requisitioning and Acquisition of Immovable Property Act, 1952 - Sections 3; Constitution of India - Articles 73 and 162
AppellantAli Gulshan
RespondentState of Bombay
Appellant AdvocateN.K. Gamadia, Adv.
Respondent AdvocateM.P. Amin, Adv. General
Excerpt:
.....of premises for housing member of staff of foreign consulate whether a public purpose--whether state government can requisition premises for such purpose--'any other purpose,' meaning of.;housing a member of the staff of a foreign consulate constitutes a public purpose. it is, however, not a purpose of the state but a purpose of the union, and, therefore, the state government does not possess the power under the bombay land requisition act, 1948, to requisition property for such a purpose, which is a purpose of the union and not of the state.;if the legislative competence of the legislature is restricted to pass a requisition act only for the purpose of the state, then ' any other public purpose ' must be read as ejusdem generis with the purpose of the state, and the expression used..........a public purpose, it is not a purpose of the state but a purpose of the union, and therefore the state government did not possess the power under the act to requisition the property for a public purpose which was a purpose of the union and not of the state.(3) now, both section 5 and section 6 give the power to the scale government to requisition property for the purpose of the state or any other public purpose, and the advocate general's contention is that the purpose for which this property has been requisitioned is a public purpose and therefore it is unnecessary to consider whether it is a purpose of the state or a purpose of the union. according to the advocate general, there may be a purpose which may neither be the purpose of the union nor the purpose of the state, and yet may.....
Judgment:

Chagla, C.J.

(1) This appeal arises out of a petition filed by the petitioner to challenge a requisitioning order. The petitioner is a tenant of a certain room on the second floor of Dada-chanji Building situated at Mazagaon, and the requisition order complained of was passed on 124-1952. The order was passed under Clause. (a) of Sub-section (4) of Section 6, Bombay Land Requisition Act, 1948, and the order stated that the premises were Being requisitioned for a public purpose, viz. for housing a member of the staff of a Foreign Con sulate. The petition came before Tendolkar J. and the learned Judge dismissed it.

(2) Now, various points have been urged before us by Mr, Gamadia on behalf Of the petitioner. In our opinion, it is sufficient to dispose of this appeal on one ground alone and it is unnecessary to consider the other grounds raised in the appeal, It is contended by Mr, Gamadia that housing a member of the stair of a Foreign Consulate is not a public purpose. We are unable to agree with that contention. We agree with the view taken by the learned Judge that housing a member of the staff of a Foreign Consulate does constitute a public purpose. It is obvious that it is so because if a Foreign Consulate is stationed in Bombay, it does serve a public purpose. A Foreign Consul renders services to the public by giving the public information about trade and commerce in the country of Which he is a Consul, he gives visas for those wishing to travel to the foreign country, and he also performs certain notarial duties. But the other contention raised by Mr. Gamadia is that although housing a member of tile staff of a Foreign Consulate may be a public purpose, it is not a purpose of the State but a purpose of the Union, and therefore the State Government did not possess the power under the Act to requisition the property for a public purpose which was a purpose of the Union and not of the State.

(3) Now, both Section 5 and Section 6 give the power to the Scale Government to requisition property for the purpose of the State or any other public purpose, and the Advocate General's contention is that the purpose for which this property has been requisitioned is a public purpose and therefore it is unnecessary to consider whether it is a purpose of the State or a purpose of the Union. According to the Advocate General, there may be a purpose which may neither be the purpose of the Union nor the purpose of the State, and yet may be a purpose. The Advocate General says that if we are satisfied that the public is benefited by a Foreign Consulate being stationed in Bombay, then we must hold that finding accommodation for a member of the staff of that Consulate is a public purpose, and if we are satisfied, then it is unnecessary further to investigate whether that purpose is a purpose of the State or a purpose of the Union, In our opinion, every public purpose must be either a purpose of the Union or a purpose of the State. The Constitution casts upon the Union and the State the obligation not only to legislate only with regard to matters which are specified in the Lists to the that Schedule, be& also to exercise their respective executive functions with regard to those matters. In a sense it may be said that everything that the State does and everything that the Union does is for a public purpose, but the Constitution demarcates the functions of the State and of the Union. The State must act within its own ambit and the Union must act within its own ambit, and when they are so acting within their own respective ambits, they are, in everything they do, serving is public purpose. It is difficult to contemplate a public purpose which is not a purpose of the State or a purpose of the Union. In this particular case it is clear from the 'Union List that diplomatic, consular and trade representation is a Union subject, that legislation with regard to this subject can only tie undertaken, by the Union, and turn-; ing to Art. 162 of the Constitution, the executive power of the State cannot extend to this subject because under that article the executive power of the State is restricted to the matters with respect to which the Legislature of the State has power to make laws. There is a corresponding article. Art- 73, which confers upon the Union executive power with respect to those matters which Parliament has power to make laws. Therefore, all executive functions relating to diplomatic, consular and trade representation can only be undertaken by the Union Government. To test the matter simply, if a foreign Consulate has a grievance about one of its officers not being properly housed, the grievance can only be ventilated before the Union Government and not before the State Government. The Slate Government under the Constitution has nothing whatever to do with diplomatic representation in this country. If the Advocate General's argument were sound, it would result in this that if a servant of the Central Government in any one of the important departments like the Army, Railways, Post and Telegraph had to be housed in Bombay, the State Government would have the power to requisition property for that purpose, because it could be said that a member of any of these departments by being in Bombay is serving a public purpose because the public wants the facility of Post and Telegraphs and Railways and wants to be defended by the Array. It is clear that that argument cannot be tenable. It is pointed out by the Advocate General that the Land Requisition Act uses the expression 'the purpose of the State or any other public purpose', and in using this expression it draws a distinction between a purpose of the State and a public purpose, and the Advocate General says that this expression makes it clear that there may lie a public purpose which may not be the purpose of the State nOW, if the legislative competence of the Legislature is restricted to pass a Requisition Act only for the purpose of' the State, then to must read 'any other public purpose' as 'ejectment' with the purpose of the State and the expression used by the Legislature can only mean that the power of the State to requisition is restricted to a public purpose which is also a purpose of the State, or, in other words, the State Government cannot requisition property or a public purpose which is a purpose of the Union. In this connection it is significant to note the very precise language used by the Central Act No. 30 of 1952 which is also a Requisitioning Act, and Section 3 provides that where the competent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the Union, then the power can be exercised. Therefore, the Central Act makes it perfectly clear that the power of the Union executive to requisition is restricted to requisitioning only for that public purpose which is also a purpose of the Union, Therefore, in our opinion, every public purpose or which land nr property can be requisitioned can be divided Into two categories. It must either be a purpose of the Union or a purpose of the State. If it is a purpose of the State, then our Suite Government has the power to requisition the property or the land. H it is a purpose of the Union, then only the Union executive has the power under Act 30 of 1952.

(4) While agreeing with the learned Judge below that the purpose for which this property was requisitioned is undoubtedly a public purpose, in our opinion this public purpose happens to be a purpose of the ' Union and not a purpose of the State in those circumstances the State Government has erroneously and improperly exercised the power of requisitioning this particular property. The result is that we must hold that the order !s invalid.

(5) The petition will therefore succeed and there will be a direction in terms of prayers (a) & (b) of the petition. The petitioner is entitled to his costs throughout from the respondent.

(6) Petition allowed.


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