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Shrimati Lilavatibai Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 63 of 1954 and Miscellaneous No. 74 of 1954
Judge
Reported in(1955)57BOMLR975
AppellantShrimati Lilavatibai
RespondentState of Bombay
DispositionAppeal dismissed
Excerpt:
.....knowledge of order-whether service effected as required by section 13-whether obligatory upon state to state in order against whom it is made-person mentioned at foot of order dead, whether affects validity of order.;to comply with the provisions of section 13 of the bombay land requisition act, 1948, what is obligatory upon the state is to prove either that service was effected as required by section 13(1)(c) of the act or that a person affected had information of the order aliunde.;kedar charandas varma v. state of bombay (1955) o.c.j. appeal no. 7 of 1955, decided by chagla c.j. and dixit j., on january 27, 1955 (unrep.) followed.;all that a requisition order under section 6(4)(a) of the bombay land requisition act, 1948, requires is that it must be with regard to premises which..........mentioned at the foot of the order at all, the order would still be good provided it sought to requisition premises as defined in the act and the order was made for a public purpose. mr. jethmalani says that we must read section 6(4)(a) in conjunction with section 13, and he says that if we do so, it would be clear that a valid order must state against whom it is directed. in our opinion, far from section 13 helping the contention of mr. jethmalani it is wholly opposed to that contention. the very fact that in section 13(1)(e) the language used by the legislature is not 'an order made against an individual or directed against an individual', but the language used is 'an order affecting an individual', clearly shows that once an order is made with regard to certain premises, then in.....
Judgment:

M.C. Chagla, C.J.

1. By a petition the petitioner challenged a requisition order made on January 27, 1954. Mr. Justice Tendolkar dismissed the Petition and the petitioner has come in appeal.

2. The petitioner is the widow of one Dharamdas Chellarm who died on November 24, 1953. The order was pasted on the premises in which the which continued to live after the death of her husband. The order has been challenged on various grounds by Mr. Jethmalani, and the first ground is that the mandatory provisions of Section 13 of the Bombay Land Requisition Act have not been complied with. It is urged that service has not been effected as required by Section 13(1)(c) upon the petitioner, she being a person who is affected by the order. Now, in a recent decision a division bench of this Court in Kedar Charandas Yarma v. State of Bombay (1955) O.C.J. Appeal No. 7 of 1955, January 27, 1955 (Unrep.) has taken the view that what is obligatory upon the State is to prove either that service was effected as required by Section 13(1)(c) or that a person affected had information of the order aliunde. The result of effecting service in accordance with the provisions of Section 13(2)(c) is to confer this advantage upon the State that the proof of service constitutes a conclusive proof that the person affected by the order had information of the order. In this case it is not disputed-indeed it is the case of the petitioner herself-that she had knowledge of the order on January 29, 1954. Therefore, in view of that decision there is no substance in this contention.

3. It is then urged that although it may be true that in a, case where an order is made against a person he may either be served under Section 13(7)(c) or information may be brought home to him, under Section 13 [2) that position does not obtain where the order is not made against a particular person, and it is said that in this case the order was only directed against one Hirabhai Patel, Narottam Dharamsi Patel, and D. Chellaram, and not against the petitioner, and therefore a different view of the law should be taken in the case of the petitioner. Now, the very simple answer to this contention is that Section 13(1)(c) does not speak of an order made against a particular person, but it speaks of an order affecting an individual, and there is not the slightest doubt-indeed it is the very basis of the petition-that the petitioner has been affected by this order, and it is precisely because she has been affected by this order that she is entitled to claim that before the order can be enforced the State must prove service against her or must prove that she had otherwise knowledge of the order. Therefore, the decision that we gave in Varma's case applies to the facts of this case as well.

4. The third contention urged by Mr. Jethmalani is that the order is directed against D. Chellaram who admittedly was dead at the date when the order was made, and it is urged that the order being passed against a dead person is a nullity. Now, when we look at the scheme of the Land Requisition Act, it is clear that the orders of requisition are made quae premises and not against any particular person. This order is made under Section 6(4)(a) and all that the requisition order requires is that it must be with regard to premises which fall within the ambit of the Act and it must state a public purpose. There is no suggestion in Section 9(4)(a) whatsoever that in order that a valid order should be made the order should state that it is directed against a particular person. Indeed, if no names had been mentioned at the foot of the order at all, the order would still be good provided it sought to requisition premises as defined in the Act and the order was made for a public purpose. Mr. Jethmalani says that we must read Section 6(4)(a) in conjunction with Section 13, and he says that if we do so, it would be clear that a valid order must state against whom it is directed. In our opinion, far from Section 13 helping the contention of Mr. Jethmalani it is wholly opposed to that contention. The very fact that in Section 13(1)(e) the language used by the Legislature is not 'an order made against an individual or directed against an individual', but the language used is 'an order affecting an individual', clearly shows that once an order is made with regard to certain premises, then in order to enforce that order against a particular individual whom the order affects, service has got to be effected. Therefore, nowhere in the Act is there any provision which makes it obligatory upon the State Government to state in the order against whom the order is made or directed. At the most all that can be said is that the order to the extent that it is directed against D. Chellram is bad and the order cannot be enforced against a dead person. But to the extent that the order affects the petitioner, if the order is properly made, it can be enforced against her. It is fallacious to draw an analogy between a requisition order and a suit. A suit must be filed against a definite party, and if a suit is filed against a dead person, the suit would be a nullity. But if a valid requisition order does not require a person, to be a party to the order, then the fact that the person mentioned at the foot of the order is dead cannot affect the validity of the order.

5. The final argument advanced by Mr. Jethmalani is that there is no substantial compliance with the provisions of Section 6(4) which requires the Government to make a declaration. What is seriously urged is that the section requires that the Government must state that the premises were vacant or had become vacant on or after the date referred to in Sub-section (i), and the date under Sub-section (1) being April 1948, what is contended is that the declaration should have stated that the premises became vacant after April 1948. What the declaration states is: 'Whereas on inquiry it is found that the premises specified below had become vacant in the month of October 1952.' Mr. Jothmalani says that the Requisition Act is an extraordinary legislation and an extraordinary legislation requires strict compliance with its provisions. Now, even in construing an extraordinary legislation we do not think it is necessary that the Courts should dispense with commonsense. Commonsense is not out of place even in interpreting an emergency or an extraordinary legislation, and to seriously suggest that when the State makes a declaration that the premises had become vacant in the month of October 1952 it is not a compliance with the provision that the declaration must be that the premises became vacant after April 1948, is to put forward a contention which even a Court of law most anxious to protect the rights of citizens cannot accept.

6. The result is that the appeal fails and must be dismissed with costs.

7. The Advocate General agrees that he will not enforce the order for a fortnight.

8. Liberty to respondent's attorneys to withdraw the sum of Rs. 500 deposited in Court towards costs.


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