K.K. Desai, J.
1. This is a petition under Article 226 of the Constitution challenging the validity of a requisition order dated March 9, 1959, made in exercise of the powers conferred on the State Government under Clause (a) of Sub-section (4) of Section 6 of the Bombay Land Requisition Act, 1948.
2. The relevant facts are as follows:-
The petitioner is the owner of a building called Sahny Villa situate at 2nd Naoroji Gamadia Road, Bombay. The petitioner had let out the ground floor flat on the western side of that building and a garage to one S. Sadananda who died in 1953. The flat continued in possession of his son P. Sadananda as a tenant thereof. The petitioner's case is that in October 1955 P. Sadananda had surrendered possession of the flat and the garage to the petitioner. That fact, however, has been categorically denied in the affidavit in reply made by N. V. Kulkarni, the Accommodation Officer. By a requisition order dated February 5, 1958, the flat in question was requisitioned but the garage was not requisitioned. By an enforcement order dated February 24, 1958, directions were given for taking possession of the flat and by a further enforcement-order dated April 3, 1958, directions were given for taking possession of the garage. The petitioner made an application under Article 226 of the Constitution being Mis. No. 173 of 1958 in this Court challenging the requisition order dated February 5, 1958. That petition was dismissed on the ground of delay. But the State of Bombay agreed not to take possession of the garage as there was no requisition order made in respect of the garage.
3. By the impugned requisition order dated March 9, 1959, the respondent stated that on enquiry it had found that the premises specified in the order had become vacant on November 14, 1957, and declared that the premises had become vacant after December 4, 1947, and made an order requisitioning the preraises for a public purpose, namely, 'for the use of a public servant,' The premises requisitioned were the garage attached to the flat on the western side ground floor of the building already mentioned above.
4. The petitioner has by this petition challenged that order of requisition on various grounds as contained in para, 10 of the petition. The contentions of the petitioner may be shortly summarised as follows:-
(1) The purpose mentioned in the order, viz. 'for the use of a public servant' is not a public purpose at all as required under Section 6 of the Act and further it is so vague and indefinite that it should not be considered as a public purpose within the meaning of the Act.
(2) By reason of Rule 5(A) enacted under the Act the premises, viz., the garage mentioned in the order was exempt from being requisitioned.
5. The petitioner's contention is that the garage is non-residential within the meaning of Rule 5(A) and, accordingly, exempt from requisition.
6. As I am in favour of the petitioner on the first contention it is unnecessary for me to decide the second contention mentioned above. It must be stated that the respondent has denied that the garage was not used for residential purpose. The respondent's case is that the garage was used for residential purpose upto the date of the requisition order. The petitioner's case on the contrary is that since some time in 1955 the garage has always been used for non-residential purpose. Though this is a disputed question of fact, if I was against the petitioner on the first contention I would have allowed evidence to be led as this question of fact does not involve large evidence.
7. In developing the first contention Mr. Sorabji for the petitioner has relied upon the decision of the Privy Council in the case of Hamabai Framji Petit v. Secretary of State (1914) 17 Bom. L.R. 100, The question before the Court in that case related to a covenant enabling the lessors to re-enter upon possession of the leasehold premises for any public purpose. The lessors had in pursuance of the covenant-attempted to re-enter upon the possession of the leasehold premises and that attempt was challenged in the suit filed in this Court on behalf of Hamabai Framji Petit, the plaintiff. Batchelor J. in the first Court in that; connection observed as follows (p. 102):-
General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase, 'public purposes' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned.
8. The purpose for which the lessors had attempted to re-enter upon possession of the leasehold premises in that case is referred to as 'providing suitable house for government servant' and the question before the Court was whether that, scheme was for a public purpose. Their Lordships of the Privy Council accepted the observations made as aforesaid by Batchelor J. as the correct view as regards the true connotation of the words 'public purpose'. It was further held that what was, therefore, necessary to be considered in that case was whether the purpose mentioned by the lessors was a purpose in which the general interest of the community was directly and vitally concerned. It was further observed that (p. 102) :-.Prima facie the Government are good Judges of that. They are not absolute Judges.
The Privy Council accepted as correct the finding of the lower Court that the purpose for which the lessors entered upon possession was one which would redound to public benefit by helping the Government to maintain the efficiency of its servants.
9. Mr. Sorabji has accordingly contended that the question in this case was whether this was an order which must be considered prima facie an order which would redound to public benefit and/or in other words the purpose of this order must be considered as a purpose in which the general interest of the community was concerned as opposed to the particular interest of individuals, and, secondly whether the general interest of the community was directly and vitally concerned. Admittedly the test as mentioned in the observations of Batchelor J. and accepted by the Privy Council as true test is the only test to be applied where an order is challenged on the ground that it is not made for a public purpose.
10. I have in this connection anxiously read the purpose mentioned in the impugned order to find whether in respect of that purpose it can be stated that the purpose mentioned in the order and/or its object (a) is such that it must be held to be in the general interest of the community and (b) further that the general interest of the community is directly and vitally concerned therein.
11. It is admitted that the phrase 'public servant' is not defined in any statute except as appearing in Section 21 of the Indian Penal Code. Having regard to the purpose of that Code the definition of 'public servant' as mentioned in the Code includes juryman, assessor as also an arbitrator appointed by Court in a judicial proceeding. The phrase 'public servant' in my view is an extremely vague and indefinite and difficult of precise definition, In that connection Mr. Kantawala for the respondent has submitted that a public servant means 'a person who renders public service, that is, any service which would supply want felt by the public or any service which public may be desirous of having on its own behalf.' Accepting what Mr. Kantawala has stated as definition to be true, in my view, the matter has remained as indefinite and vague as possibly one could imagine. It is not as if it can be suggested that all persons included in the phrase 'public servant' render such service as can be held to be service in the general interest of the community or service in which the community is directly and vitally concerned. It is true that government servants would be public servants, but it is further true that the service rendered by the government is such in which the general interest of the community is concerned and that too directly and vitally. A poet, or a scientist or an industrialist may be referred to as a public servant because he is rendering service towards literary, or scientific or industrial progress of the nation. But to say that requisition can be made for the use of such a public servant under Section 6 of the Act would appear to be contrary to the true purpose of the phrase 'public purpose' as mentioned in Section 6. In my view the phrase 'public servant' is so vague as is capable of including so many persons belonging to such different categories that it is impossible to say that requisition 'for the use of a public servant' must be held requisition for a public purpose. It may be that in some cases such a requisition would turn out to be for the benefit of servants like government servants and accordingly for a public purpose as mentioned in Section 6. But the phrase being extremely vague and indefinite it is impossible to say that in all cases requisition 'for the use of a public servant' will be for a public purpose or for a purpose in which interest of the general community is involved or in which interest of the general community is directly and vitally concerned. Having regard to that indefinite position, I accept Mr. Sorabji's contention that the impugned order is not made for a public purpose as mentioned in Section 6 of the Act.
12. In this connection Mr. Sorabji has also referred to the decision of the Supreme Court in the case of State of Bombay v. R.S. Nanji : 1SCR18 . The Supreme Court has in that case referred to the observations of Batchelor J. quoted above and accepted those observations as the true test to be applied when a question relating to the validity of orders stated to be made for public purpose arises. It is unnecessary to refer in detail to the observations of the Supreme Court as contained in that case.
13. Mr. Kantawala for the respondent has contended that when a property is requisitioned for a public servant the direct aim or object of the Government is to advance the general interest of the community at large and that the Government's view should not be rejected unless the Court finds that no reasonable person could have taken that view of the matter.
14. Now, as I have observed, it is not possible to find that in all cases where premises are requisitioned 'for use of a public servant' that the requisition must be to house a person who is rendering service which is in the general interest of the community and for interest in which the community is directly and. vitally concerned. I am not aware as to the person and the true purpose for which this requisition order is made. But Mr. Kantawala himself has rightly stated that the question must be determined not in reference to facts of a particular case and must be decided in the abstract. For the reasons which. I have already mentioned it is impossible to make a finding that this order must be held to be made for a public purpose as mentioned in Section 6.
15. In the result the impugned requisition order dated March 9, 1959, was made without jurisdiction and is quashed and set aside. Rule is made absolute. Respondent to pay costs to the petitioner.