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Chhotalal Ramdas Patel Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Misc. Petn. No. 173 of 1954
Judge
Reported inAIR1955Bom433; (1955)57BOMLR748
ActsConstitution of India - Article 226; Bombay Land Requisition Act, 1948 - Sections 3, 5(2), 6, 6(4), 13, 13(1) and 13(2); Metropolis Management Act, 1855
AppellantChhotalal Ramdas Patel
RespondentState of Bombay
Appellant AdvocateB.A. Palkhivala and ;D.B. Palkhivala, Advs.
Respondent AdvocateMurzban J. Mistree, Adv.
Excerpt:
.....- - as it deems jit' clearly negative the suggestion that the inquiry is of a judicial nature. government cannot in the exercise of that discretion pretend to hold an inquiry whilst in fact holding none, and where the facts of the case justify an inference or a finding that no inquiry was in fact held although there was a pretence of holding an inquiry, the declaration made as a result of such an inquiry may well he vitiated. thercatler on december 7, he got a notice from the accommodation officer inviting his attention to the original show cause notice of november 23 and intimating that as he had failed to comply with that notice he should appear on 21-12-1953, with tho written statement and the necessary evidence called for. but even so, sub-section (2) in terms provides that..........i will now proceed to consider the facts of this case on which the allegation is based that the inquiry held is no inquiry at all.4. on 23-11-1953, the accommodation officer issued a show cause notice, and this notice called upon the persons to whom it was addressed to see him on 27-11-1953, and to produce on that day all available evidence such as (1) food ration cards, (2) rent bills, (3) gas and electricity bills, (4) postal cards or envelopes received by him at the said address and any other relevant evidence. on the appointed day the petitioner was not in bombay and he had previously instructed his partner one jayantilaf joshi to apply to the accommodation officer for an adjournment.upon joshi's application the accommodation officer told him . that the petitioner would be at.....
Judgment:
ORDER

1. This is a petition for an appropriate Writ, direction or order restraining the State of Bom-bay from enforcing a requisition order dated 5-3-1954. The order is made under Section 6 (4) (a), Bombay Land Requisition Act and contains a declaration that the premises specified in the order had become vacant in November 1952.

2. The main ground on which the petition has been argued before me on behalf of the petitioner is that the inquiry which was held prior to the making of the declaration that the premises were vacant was of such a character as to amount to no inquiry it all, and the argument is that since the holding of an inquiry is a condition precedent to the making of such a declaration, the declaration made without such at inquiry is void. It has also been urged that the order of requisition was not served on the petitioner and therefore cannot bind him until it is properly served on him.

3. Now, the provision for holding an inquiry is to be found in the proviso to Section 6 (4) which is in these words:

'Provided that where an order is to be made under Clause (a) requisitioning the premises in respect of which no intimation has been given by the landlord, the State Government shall make such inquiry as it deems fit and make a declaration.....'

It is clear, therefore, that the Stale Government has to make an inquiry, and if in fact no inquiry was held, the declaration would be vitiated by the absence of an inquiry; but if an inquiry has in fact been held, then a Division Bench of this Court has held in -- 'Alarakhia v. Collector of Nasik', : AIR1951Bom131 , that the words 'inquiry shall be such. as it deems Jit' clearly negative the suggestion that the inquiry is of a judicial nature. The learned Chief Justice who delivered the judgment ot the bench iurther observes (p. 132):

'.....The nature, the extent, the scope of the inquiry is to be determined by Government. How can it then be said that there is a statutory requirement that Government should observe the rules of natural justice in holding such an inquiry? Mr. Tara-porewala points out, and rightly points out, the grave consequences of taking this view ot Section 5 (2). He says that a man might be deprived ol his property without being heard and on an ex parte decision.

We have had occasion in the past to point out what wide powers have been conferred by Government upon executive officers and we have also drawn the attention of Government to the necessity of supplying some judicial corrective to important and far-reaching decisions given by executive officers. That is a matter of policy with which we are not concerned.'

It is clear, therefore, that the Government arc the sole judges as to the nature, extent and scope of the enquiry. Mr. Palkhiwala tor the petitioner accepts tin's position but he urges that the inquiry that is held must under all circumstances be a reasonable inquiry. Mr. Palkhiwala relies on certain observations of Lord Wren bury in the case of -- 'Roberts v. Hopwood', 1925 AC 578. In that case their Lordships were concerned with the construction of a section of the Metropolis Management Act, 1855, under which the borough council were entitled to pay to their servants 'such wages as the council may think fit.'

It was held hy the House of Lords that this discretion conferred upon the council must be exercised reasonably and that the fixing of an arbitrary sum as payable to a servant would not be a proper exercise of that discretion. In this context Lord Wrenbary observes as follows (p. 613):

'.....A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion doc.s not empower a man to do what he likes merely because he is minded to do so--he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of hie reason, ascertain and lollow the course, which reason directs. He must act reasonably.'

There is no doubt, therefore, that despite the use of the words 'such inquiry as it deems fit' the Government in making the inquiry has to exercise its discretion reasonably. Therefore, while it is true on the one hand to say that the principles of natural justice shall not necessarily apply, on the other hand. Government cannot in the exercise of that discretion pretend to hold an inquiry whilst in fact holding none, and where the facts of the case justify an inference or a finding that no inquiry was in fact held although there was a pretence of holding an inquiry, the declaration made as a result of such an inquiry may well he vitiated.

Having regard to this position in law I will now proceed to consider the facts of this case on which the allegation is based that the inquiry held is no inquiry at all.

4. On 23-11-1953, the Accommodation Officer issued a show cause notice, and this notice called upon the persons to whom it was addressed to see him on 27-11-1953, and to produce on that day all available evidence such as (1) food ration cards, (2) rent bills, (3) gas and electricity bills, (4) postal cards or envelopes received by him at the said address and any other relevant evidence. On the appointed day the petitioner was not in Bombay and he had previously instructed his partner one Jayantilaf Joshi to apply to the Accommodation Officer for an adjournment.

Upon Joshi's application the Accommodation Officer told him . that the petitioner would be at liberty to present his case as soon as returned to Bombay. Upon his return to Bombay the petitioner saw the Accommodation Officer on November 30, and the Accommodation Officer asked him to submit his statement in writing. Such a statement was submitted on 30-11-1953, and is a long document containing information under different heads and under each one of the heads the petitioner has offered to produce evidence if called, upon to do so.

Thercatler on December 7, he got a notice from the Accommodation Officer inviting his attention to the original show cause notice of November 23 and intimating that as he had failed to comply with that notice he should appear on 21-12-1953, with tho written statement and the necessary evidence called for. To this notice the petitioner sent a reply on 12-12-1953, in which he rightly pointed out that the Accommodation Officer had evidently completely lost sight of the fact that he had already submitted a statement on November 30.

The letter further states that the petitioner considered that his presence would not be necessary but inquired whether the Accommodation Officer still wanted Kirn to comes. By his letter of 17-12-1953, the petitioner was informed by the Accommodation Department to see the Accommodation Officer on 21-12-1953. Accordingly the petitioner did go and see the Accommodation Officer on December 21 and it is his allegation in the petition that on tin's occasion he produced before the Accommodation Officer the ration cards and postal communications bearing the address of the said premises.

The petitioner offered to produce further postal communications and the evidence of the tenants and the rent collector in support of his case, but the Accommodation Officer told the petitioner that that was not necessary.

5. On behalf of the Accommodation Officer it is pointed out that the ration cards that were produced showed that the rations wore not drawn from the 32nd week of 1953 and there was no renewal slip for the year 1954 on the ration cards. With regard to the actual request made or the offer made by the petitioner to call further evidence, what happened has been recorded in a statement signed by the petitioner and it is in these terms:

'For major portion of 1953 I was in Bombay. I have no evidence to prove this at the moment. I will produce it, if required.'

Obviously, therefore, what he was told was that cvi--dence to prove that he was for the major portion of 1953 in Bombay was not required. It is at onco apparent that such evidence was not necessarily relevant for the finding at which the Accommodation Officer subsequently arrived, viz., that the premises became vacant,in November 1952. But, apart from this, the question is not whether the evidence which the petitioner intended to lead was or was not relevant to the inquiry.

If the Accommodation Officer had the authority to determine how much evidence to take as also to determine what evidence would be sufficient to enable him to come to a particular finding, since the petitioner had set out his full case in a written re-presentation dated 30-11-1953, and he had been heard in person on 21-12-1953, and further the petitioner had not, despite specific notice in that behalf, kept ready any evidence to adduce on that day when he appeared before the. Accommodation Officer, I find it quite impossible to say that the Accommodation Officer acted unreasonably in closing the inquiry and corning to a conclusion on the basis of the in-quiry that had been held as indicated above.

It was open to him in the first instance to hold that the materials already before him were sufficient to enable him to come to a conclusion and that no further material that the petitioner was likely to produce was likely to affect the result. It was, secondly, open to him to come to the conclusion that in any event it was the duty of the petitioner to produce all the evidence that he had in response to the notice to show cause which specifically called upon him to produce all the evidence in his possession, this request having been repealed by the letter of 7-12-1953.

On the facts of this case, therefore, it cannot, in my opinion, be held that the Accommodation Officer conducted the inquiry unreasonably nor is there any basis for the suggestion that the inquiry that was held amounts to no inquiry at all or to the absence of an inquiry.

6. The other ground that has been urged is that the requisition order was not served on the petitioner and therefore it does not bind him until it is served on him. What actually happened was that the requisition order was pasted on the premises and the petitioner had notice of it. Now, Section 13 (1), Land Requisition Act provides for the mode of service of orders, and I will assume in favour of the petitioner that the mode applicable to his case, viz. serving il personally on him or by post was not followed in this case, although, of course, the case of the State of Bombay is that he could not be found and they were entitled to affix a copy to the premises.

But even so, Sub-section (2) in terms provides that failure to comply with the provisions of Section 13 (1) does not preclude proof that the party concerned was informed about the order. Now, obviously the petitioner himself says that he was informed about the order as he read the order pasted on the wall. Sub-section (2) also in terms provides that failure to comply with the provisions of Sub-section (1) does not invalidate the order. There is, therefore, no substance in this contention.

Reliance is, however, placed on a certain observation in the judgment to which I was a party in -- P. V. Rao v. K. S. Advani', AIR 1949 Bom 277. In that case Bhagwati, J. as he then was, had held that the order must be addressed to the person concerned, and sitting in appeal the learned Chief Justice and myself took the view that it was not necessary so to address it, in this context the learned Chief Justice in his judgment observes (p. 292) :

'...Therefore, it is clear that the validity of the order under Section 3 does not depend upon its service upon all the persons affected by that order. The most that could be said would be that a particular order would not be effective against any person unless it was served upon him.'

In that passage we were concerned only with negativing the argument which found favour with Bhagwati, J. In the first instance that the order must be addressed to the individual concerned and it is not sufficient to serve it on him and we were not dealing with the mode of service or with what is equivalent to service under Section 13 (2), viz. that the person was informed of the order.

These observations to which I was a party can only be read to mean that the order must either be. served under the provisions of Section 13 (1) or it must be shown that the person concerned was informed about the order in some other manner. There is, therefore, no substance in the other contention on behalf of the petitioner as well.

7. The result, therefore, is that the petition fails and the petition shall be dismissed and the rule discharged with costs fixed at Rs. 500.

8. Petition dismissed.


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