Skip to content


Satya Narayan Nathani Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 147 of 1954
Judge
Reported inAIR1957Cal310,61CWN420
ActsWest Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Sections 1, 1(4), 3(1) and 4(1); ;Constitution of India - Article 31, 31A, 31(2), 31(5) and 226; ;Evidence Act, 1872 - Section 115
AppellantSatya Narayan Nathani
RespondentState of West Bengal and anr.
Appellant AdvocateBinayak Nath Banerjee, ;Pravat Kumar Sen Gupta and ;Amiya Kumar Chatterjee, Advs.
Respondent AdvocateNirmal Chandra Chakravorty, Adv. for Respondents Nos. 1 and 2
DispositionAppeal dismissed
Cases Referred and State of Bombay v. R. Section Nanji
Excerpt:
- chakravartti, c.j. 1. the appellant, satya narayan nathani, complains of the requisition of a flat in the ground-floor of premises no. 102-g, russa road, which is owned by him. he says that the requisition was not for a public purpose and such requisition being forbidden by the constitution, it was unlawful and void. 2. the history of the requisition which is spread over a period exceeding four years makes strange reading. it appears that in 1945, there was a tenant in the flat whom the appellant did not wish to be there. accordingly, he filed a suit for his ejectment and obtained a decree. the tenant appealed and having failed before the district court, preferred a second appeal to this court in which he failed again. those proceedings lay between 1945 and 1948. thereafter, on the 27th.....
Judgment:

Chakravartti, C.J.

1. The appellant, Satya Narayan Nathani, complains of the requisition of a flat in the ground-floor of Premises No. 102-G, Russa Road, which is owned by him. He says that the requisition was not for a public purpose and such requisition being forbidden by the Constitution, it was unlawful and void.

2. The history of the requisition which is spread over a period exceeding four years makes strange reading. It appears that in 1945, there was a tenant in the flat whom the appellant did not wish to be there. Accordingly, he filed a suit for his ejectment and obtained a decree. The tenant appealed and having failed before the District Court, preferred a second appeal to this Court in which he failed again. Those proceedings lay between 1945 and 1948. Thereafter, on the 27th of October, 1948, an order under Section 8(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, requisitioning the premises, was served on the appellant, but it was rescinded on the 7th of November, 1949, on a representation being made to the Government that the appellant required the flat for his own use and occupation. ' Some seven months later, a prohibitory order under Section 3(3)(b) of the Act was made on the 23rd of June, 1951, whereby the appellant was asked not to dispose of the flat without the permission of the Government. Once again, the appellant made a representation and once again the order was rescinded. That rescission was on the 15th of April, 1952.

3. During all that time, the tenant had managed to remain in occupation of the flat. Ultimately, on the 12th of June, 1952, possession was obtained from him. About a month later, on the 10th of July, 1952, a fresh order of requisition was passed under Section 3(1) of the Act and the First Land Acquisition Collector, Calcutta, was directed to take such further action as was necessary. The further action taken was strong action. The First Land Acquisition Collector made an order on the 12th of July, 1952, and directed the appellant to place the flat at his disposal and control at 2-30 p.m. of the same day. In issuing that order, the First Land Acquisition Collector must have over-estimated his powers or forgotten the provisions of Section 4(1)(a) of the Act which requires ten days time to be given for vacating any requisitioned premises. Be that as it may, the appellant refused to comply with the notice and by an application made on the 14th Of July, 1952, asked for time to file an objection. Time till the 16th of the month was granted and on the next day the appellant's objection was filed. He repeated his contention that the flat was required by him for his own use and occupation and thereupon one S. B. Das Gupta, Additional Land Acquisition Collector, was directed to make an enquiry. Das Gupta made his report on the 13th of August, 1952, in which he said that the flat was not really required by the appellant, because he had another house at 177-A, Chittaranjan Avenue, to live in which was 'a magnificent building'. Onreceipt of that report, Government directed the First Land Acquisition Collector to pursue the requisition.

4. Thereafter, on the 23rd of October, 1952, a fresh notice under Section 4(1)(a) of the Act was issued and this time the provisions of the section were not overlooked. The notice, however, could not be served on the appellant, as he could not be found and intimately it was sent by registered post to 177-A, Chittaranjan Avenue. By the notice the appellant was directed to make over possession of the flat on the 17th of November, 1952. Even on that date, possession could not be obtained, inasmuch as, in the meantime, the appellant had lent out the flat to one S. P. Lahiri for the purpose of his celebrating a marriage there. The next date fixed for delivery of possession was the 5th of December, 1952, but even on that day possession could not be taken, as Lahiri was still in occupation and said that he would not be able to vacate the flat before the 8th of December next. The 8th of December was then fixed as the date for delivery of possession, but once again possession could not be taken, as the appellant refused to make over the property. Direction was then sought from the Government as to whether the Land Acquisition Collector should proceed under Section 9 of the Act and such direction being given, possession was at last obtained on the 19th of January, 1953, with police help. About seven months later, on the 1st of June, 1953, the appellant moved this Court under Article 226 of the Constitution and obtained a Rule. On the 2nd of March, 1954, the Rule was discharged. Thereupon, the present appeal was filed.

5. The facts I have briefly narrated indicate very clearly that the appellant was clinging to the property with a great deal of tenacity, but it is not equally clear why the Government, if they were minded to requisition this particular flat, should have withdrawn the order of requisition twice merely on representations made by the appellant and then returned to the attack.

6. Before Sinha, J., it was contended that the notice of requisition was bad, inasmuch as the public purpose for which the flat was being requisitioned had not been specified in it. The only other contention was that the facts on which the respondents were relying had not been properly brought on the record, because they had been spoken to only by the First Land Acquisition Collector who could not have known why the Government had taken action in the matter or selected the particular flat for requisition. The learned Judge repelled both the contentions. In regard to the first, he held that by reason of the decision of the Appeal Court in Srinivas Khedwal v. State of West Bengal, 0065/1954 : AIR1954Cal171 , he was bound to hold that the factual existence of a public purpose in respect of a requisition under Section 3(1) of the Act depended entirely on the subjective satisfaction of the State Government and that it was not necessary for the State to specify in the order of requisition the public purpose for which it was made. The second contention was disposed of summarily. The learned Judge held that he could see no reason why the First Land Acquisition Collector, who had affirmed the affidavit-in-opposition, could not swear to the factsstated by him, if he had referred to the official records which he said he had done.

7. In the present appeal three points were urged. It was contended, in the first place, that the notice of requisition was bad, inasmuch as the public purpose for which the flat was being requisitioned had not been specified in it. It was contended in the second place that the order made on the 12th of July, 1952, which was the basic requisition order, was also bad, because the time required to be given by Section 4(1)(a) had not been given. It was contended, in the third place, that the purpose for which the requisition had been made was not a public purpose at all.

8. The first and the second points taken on behalf of the appellant can be shortly disposed of. It is true that the order of requisition did not specify the public purpose for which the flat was being requisitioned, because all that it said was that the premises were ''needed for a public purpose'. It has, however, now been finally decided by the Supreme Court in the case of State of Bombay v. Bhanji Munji, : [1955]1SCR777 ) (B), and in the earlier case of Biswabhusan Naik v. State of Orissa, : 1954CriLJ1002 , that in order to make an order of requisition valid, it is not necessary to set out the purpose of the requisition in the order itself. A purpose and a public purpose must undoubtedly be made out to the satisfaction of the Court, if the order is to be upheld as valid, but if such a purpose is proved by the facts established in the case, which may properly be done, the order cannot be impugned as invalid for the mere reason that the purpose was not specified in it. In the present case, it was disclosed in the affidavit-in-opposition that the appellant's flat had been requisitioned for the purpose of providing accommodation to one S. R. Mukherjee, Labour Officer (Statistics), who was said to be sorely in need of accommodation. Whether that purpose could be said to be a public purpose is a different and a separate question. But a purpose claimed to be a public purpose, having been disclosed by the facts as the purpose of the requisition made thereby cannot be challenged on the technical ground that the purpose was not specifically mentioned in the order, but was only referred to in general terms as a public purpose. The appellant's attempt to prove that the purpose alleged was not the real purpose of the acquisition did not succeed.

9. With regard to the second point of the appellant, it will be enough to say that however contrary to law the order of the 12th of July, 1952, made by the First Land Acquisition Collector On the basis of the requisition order of the 10th of July, may have been, the appellant cannot claim any relief on the ground of the irregularity of that order, because, in fact, he did not make over possession in accordance with its terms. Instead of ten days under Section 4(1)(a) or fifteen days under Section 4(1)(aa) which was the maximum that he could claim, he contrived to have more than six months. Not having given up possession in accordance with the order of the 12th of July, 1952, and, in fact, a second order of requisition having been issued on the 23rd of October following, which also was not complied with by the appellant, he cannot now turn roundand select an old order made on a past date for the purpose of challenging the requisition.

10. The third point urged by the appellant, however, requires close consideration. The decision of this Court in the case of 0065/1954 : AIR1954Cal171 was on this very Act and on this very point. G. N. Das, J., who delivered the judgment proceeded on the language of Section 3(1) of the Act which says that 'whenever it appears to the State Government that any premises in any locality are needed or are likely to be needed for any public purpose', it may requisition such premises. That language, the learned Judge held, made it perfectly clear that whether or not the premises concerned were required for a public purpose depended entirely on the satisfaction of the State Government and the question was not justiciable in Court of law. The same section, it was pointed out, had been construed in the same sense in the earlier case of A. C. Mohammad v. Sailendra Nath Mitra, : AIR1951Cal294 , and that in construing similar language of a Bombay Ordinance, the Supreme Court had held in Province of Bombay v. Khusaldas S. Advani, : [1950]1SCR621 , that, under the language of the Ordinance, the condition precedent for the exercise of the power conferred by it was not the actual existence of the matter, but the subjective opinion or satisfaction of the executive authority that it existed. As against such construction of the section, it was argued before the learned Judges that since the enactment of Article 31(2) of the Constitution, it was no longer feasible, because where an Act provided for the acquisition or taking possession of any property which could not only be done for public purposes, the purpose in the contemplation of the Act and the purpose of orders made under the Act were now both justiciable in Courts of law. G. N. Das, J., held that Article 31(2) would not apply to the Act before him at all, because it had been passed more than eighteen months before the date of the Constitution and, therefore, it was an existing law within the meaning of Article 31(5) which was not affected in any way by the provisions, of Article 31(2). The learned Judge did point out that with regard to the justiciability of a public purpose, there were really two questions -- one bearing upon the constitutionality of the Act concerned and another bearing upon the validity of orders passed under it. He appears to have held that if the factual existence of the public purpose could not be enquired into in the case of Acts to which Article 31(2) did not apply, it was immaterial to the validity of an order passed under the Act whether the public purpose of the order itself was specified in it or not.

11. With great respect, it appears to me that G. N. Das, J., was not right in holding that Article 31(2) did not apply to the West Bengal Premises Requisition and Control (Temporary Provisions') Act, 1947. It is true that the original Act came into force on the 1st of January, 1948. It was to remain in force up to the 31st of March, 1950, but Section 1(4) of the Act provided that the Provincial Government might by Notification in the Official Gazette direct that it-would remain in force for a further period or periods not exceeding in the aggregate three years. Even before the 31st of March, 1950, the Act was amended by Act IV of 1949 which came into force on the 3rd of March, 1949, and by that Act severalsections, including Sections 3 and 4, were amended. When the life of the Act, as it stood originally, was drawing to a close, it was not extended by the State Government as it might have been, but the Legislature itself passed an Act, being Act XV of 1950, which came into force on the 30th of March, 1950, and provided thereby that the principal Act would remain in force up to the 31st of March, 1953. The extension of the Act's life was effected by substituting for the old Section 1(4) a new section fixing a definite date, on the expiry of which the Act would cease to be in force. It will be noticed that the period of the extension was the same as the maximum which the State Government might confer on the Act by a Notification. The Act, however, was not allowed to expire On the 31st of March, 1953. By two other Acts its life was further extended. Act X of 1953 which came into force on the 28th of March, 1953, extended the life of the Act up to the 31st March, 1954 and Act VII of 1954 which came into force on the 29th of March, 1954, extended its life up to the 31st of March, 1957. The order of requisition in the case before G. N. Das, J., had been made on the 31st of October, 1950. It was thus made not within the period of the original life of the Act, but! within the period of the first extension, effected by Act XV of 1950. G. N. Das, J., did take notice of Act IV of 1949 by which some of the sections of the original Act were amended, but his attention does not appear to have been drawn to Act XV of 1950, nor to the question whether it was the Act, as passed in 1948, which was then in force or a new Act passed after the Constitution had come into force. The learned Judge did not consider the question.

12. In a case decided by the Bombay High Court to which G. N. Das, J., referred, namely, State of Bombay v. Heman Santlal Alreja, : AIR1952Bom16 , a question arose as to whether an Act, which had been passed more than eighteen months before the date of the Constitution, but the life of which had been extended by another Act passed after the Constitution had come into force, would come within the ambit of Article 31(2) of the Constitution. The Act concerned was the Bombay Land Acquisition Act (Bombay Act XXXIII of 1948) and it was due to expire on the 31st of March, 1950. Like the Act before us, however, it contained a provision that the Provincial Government might by a Notification in the Official Gazette direct that the Act would remain in force for a further period of two years. As in the case of the Act before us, so in the case of the Bombay Act also, the life of the Act was not in fact extended by a Notification of the Government, but it was extended by another Act of the Legislature. That Act was Act II of 1950 which came into force on the 28th of March, 1950, and extended the life of the principal Act up to the 31st of March, 1952. Then followed another Amendment Act, Act XXXIX of 1950. On those facts, the Bombay High Court held that although the Legislature had delegated the power of extending the life of the Act to the Provincial Government, it could nevertheless exercise the power itself, if it desired to do so. The Court held further that inasmuch as the original Act itself contained a provision for its extension, what was an existing law for the purposes of Article 31(5) was not merely the Act of 1948, limited as to its duration up to the 31st of March, 1950,but also as that Act containing, as it did. an inherent potentiality for further extension. The extension of the life of the Act by Act II of 1950, it was accordingly held, did not make the Act a new Act passed after the commencement of the Constitution. but, on the other hand, the original Act, as extended up to the 31st of March, 1952, by reason of the provision for extension contained in it, was and remained an existing law. If, even as current during the period of extension, the Act was an existing law, Article 31(2) was obviously excluded.

13. The above view of the Bombay High Court does not seem to have been accepted by the Supreme Court in the case of : [1955]1SCR777 . The Supreme Court had to deal with the same Act and the effect of its amendments as regards the applicability of Article 31(2). It was contended before the Court that as the later Acts had been enacted after the commencement of the Constitution and as the life of the main Act had been extended after the Constitution had come into force, Article 31(2) of the Constitution was attracted and the Act was bad, because it did not require that for requisitions made under it, there should be a public purpose. The Supreme Court did not repel that contention and did not hold that the principal Act having been passed more than eighteen months before the date of the Constitution and the extension of its life having been made under the authority of a provision contained in the principal Act itself, the Act, as extended, was also an existing law. On the other hand, the Court proceeded to examine first whether the Act offended against Article 31(2) by not requiring a public purpose for requisitions or . acquisitions to be made under it and, secondly, whether the orders of requisition in the case then before the Court were bad for the reason that there was no supporting public purpose. In view of that decision of the Supreme Court, it must, it seems to me, be held that the Act before us, as extended from the 31st of March, 1950, to the 31st of March, 1953, was not an existing law within the meaning of Article 31(5), but an Act to which the provisions of Article 31(2) applied. The order of requisition in the present case was made on the 10th of July, 1952. We, therefore, do not require to consider the Act, as further extended up to the 31st of March, 1954, and the 31st of March, 195Y. respectively. The contrary view was held by G. N. Das, J., sitting with Debabrata Mookerjee, J., because the enactment of Act XV of 1950 and the effect of the extension of the life of the principal Act brought about by it after the date of the Constitution were not present to their minds.

14. The Act under which the requisition order in the present case was made must, therefore, be held to be governed by Article 31(2) of the Constitution. If it is so governed, the question whether the Act at all purports to authorise acquisition or requisition for a public purpose or whether the purpose it mentions or contemplates is a purpose of a public character and the question whether a particular order made under it is actually supported by a public purpose as contemplated by the Act, are both justiciable. Obviously, an Act to which Article 31(2) applies cannot, by enacting that Government may acquire or requisition any property which may appear to it to be needed for a public purpose, create awall of immunity around orders made under the Act land exclude judicial scrutiny as to the existence or the character of the purpose. If such a provision does occur in such an Act, it may, as a matter of language, mean that Government will be the sole judge of whether a public purpose exists and also of whether the property is needed for such a purpose, but it would be wholly unconstitutional and wholly ineffective as to taking away the power of the Court to look into the matter for itself and uphold or quash an order according to its own conclusion. To allow such a provision to take the effect which its language contemplates will be to make the question unjusticiable and, therefore, to thwart the Constitution. That, to my mind, is wholly impossible. Where Article 31(2) applies to an Act, a provision contained in it, which makes the subjective satisfaction of the Government the sole condition precedent to the exercise of the power of acquisition or requisition, will be of no avail against Courts and in spite of such a provision, the Courts will have jurisdiction to judge both the existence or otherwise of a purpose and its character.

15. That appears to be the view taken by the Supreme Court in several cases, among which it will be sufficient to refer to the case of State of West Bengal v. Mrs. Bela Banerjee, : [1954]1SCR558 . The West Bengal Land Development and Planning Act, 1948, with which that case was concerned, authorised the Government to acquire such land as it thought was needed for a public purpose. To that end, the Act, by Section 4, authorised Government to declare by a Notification an area to be a notified area, if it was satisfied that any land within it was needed or likely to be needed for a public purpose and then, by Section 6, it authorised Government to declare after some investigation what land within that area was actually needed. Section 8 provided that a declaration under Section 6 would be conclusive evidence that the area, in respect of which the declaration was made, was needed for a public purpose. There was thus not only a section, making the subjective satisfaction of the Government the sole condition precedent to the making of a declaration, but also a section expressly enacting that such declaration would be irrebuttable evidence of the existence of a public purpose. Article 31(2) applies to the Act. Dealing with the provision to which I have just referred, the Supreme Court observed as follows:

'The Attorney-General appearing for the appellant, rightly conceded that inasmuch as Article 31(2) made the existence of a public purpose a necessary condition of acquisition, the existence of such a purpose as a fact must be established objectively, and the provision in Section 8 relating to the conclusiveness of the declaration of Government as to the nature of the purpose of the acquisition must be held unconstitutional.'

It will thus appear that no provision contained in an Act to which Article 31(2) applies can avail the Government against the Constitution, even if it provides in the strongest language that the Government will be the sole judge of whether a public purpose warranting the acquisition or requisition exists. The decision of the Supreme Court in : [1950]1SCR621 , was concerned with a pre-Constitution Ordinance to which Article 31(2) didnot apply. I may add that the West Bengal Laud Development and Planning Act has since been included in the Ninth Schedule to the Constitution, but whether by reason of that, judicial examination of the public purpose is now barred, is a question, not free from difficulty.

16. In the 'case of the Act before us, it is thus immaterial that the only condition precedent to a requisition order under Section 3(1) is that it should appear to the State Government that any premises in any locality are needed or likely to be needed for any public purpose. In spite of that provision, the jurisdiction of the Court to enquire whether an order of requisition is supported by a public purpose remains. The earlier decision in : AIR1951Cal294 , to which the learned Judges who decided the case in : AIR1954Cal171 , relied, was concerned with an order made in 1949 under the Act as originally enacted and before the Constitution had come into force. Naturally, it proceeded merely on the language of Section 3 and the effect of Article 31(2) did not fall to be considered. The order of requisition in, that case was made on the 25th of February, 1949. Exactly similar was the position in Sudhindra Nath Datta v. Sailendra Nath Mitra, 87 Cal LJ 140: (AIR 1952 Cal 65) (H), cited before us, where the requisition order was made on the 22nd of May, 1949.

17. In the view I am taking of the effect of Section 3(1), it is unnecessary to consider what its true meaning, as a matter of language, is. I may, however, be permitted to say, with respect, that I entertain some doubt as to whether it does really carry the meaning which has been ascribed to it in the cases. The words 'whenever it appears to the State Government that any premises in any locality are needed or are likely to be needed for any public purpose' seem to me to suggest that what is left to the opinion of the Government is not the existence of the public purpose, but the need for the land. The learned Judges who decided the case in : AIR1954Cal171 , relied on the decision in : AIR1951Cal294 , and that decision in its turn relied on the decision of the Judicial Committee in Wijeyesekera v. Festing, 1919 AC 646 (I). The words of the Ceylon Ordinance which the Judicial Committee had to construe were these:

'Whenever it shall appear to the Governor that land in any locality is likely to be needed for any public purpose, it shall be lawful for the Governor to. direct the Surveyor-General or other Officer generally or specially authorised by the Governor in this behalf, to examine such land and report whether the same is fitted for such purpose.' In the case before the Judicial Committee, the Governor had ordered the acquisition of some land 'for a public purpose --namely, the making of a road.' It appears to me that the question raised before the Judicial Committee was not whether the order was conclusive as to the purpose of the acquisition being a public purpose, but whether it was conclusive as to the necessity of acquiring the land in the interest of that purpose. The purpose was the making of a road and no one appears to have disputed that such a purpose was a public purpose. The Judicial Committee undoubtedly said that in view of the language of the Ordinance, the decision of the Governor would be binding, but what they considered to be binding appears from an extract quoted by them with approval from the head-note to the report of a judgment of the Supreme Court of Ceylon. The extract reads thus:

'In the acquisition of a private land for a public purpose, the Governor is not bound to take the report of the Surveyor-General as to its fitness for such a purpose. His decision on the question whether a land is needed or not for a public purpose is final.' It would, therefore, seem that there was no question before the Judicial Committee as to whether making of a road was or was not a public purpose. What they decided was that the Governor's decision to the effect that the appellant's land was needed for that purpose was final. As Harries, C. J., pointed out in the case of 87 Gal LJ 140 at p. 142: (AIR 1952 Cal 65 at p. 65) (H), the language which the Judicial Committee were called upon to construe was precisely the same as the language of Section 3(1) of the Act before us. On the construction put by the Judicial Committee on that language, it would seem that even if the effect of an order under Section 3(1) fell to be determined on its language alone, the decision of the Government as to the existence of a public purpose would not be final, but only its decision that for a furthering the purpose mentioned, the premises concerned were needed. This question, however, need not be pursued further in the present' case, because for the reasons I have already given, nothing turns on the language of Section 3(1).

18. It was not contended before us that the Act itself was ultra vires the Constitution, either for the reason that it did not require requisitions or acquisitions to be made for a public purpose or for the reason that no such purpose was specified in it. If that question was raised, we would be bound to hold against the appellant by reason of the decision of the Supreme Court in the case of State of Bihar v. Kameshwar Singh, , and : [1955]1SCR777 (13). The Act before us does speak of a public purpose in Section 3(1) and by the amendment made by Act VII of 1954, 'public purpose' was defined as not including a purpose of the Union. What was argued before us, however, was that the purpose for which the requisition order in the present case was made was not a public purpose.

19. For reasons I am going presently to state, it is not necessary for us to decide that question, but, speaking for myself, I find it difficult to hold that, without more, the purpose disclosed in the affidavit-in-opposition can properly be held to be a public purpose. It was a purpose of providing accommodation to an officer of the State Government who, it was said, was sorely in need of accommodation. It was not said that he had made every possible effort on his own account to secure accommodation and such efforts had failed, nor that in order to the efficient discharge of the duties of his office, it was essential that he should find accommodation in Calcutta and could not come from the suburbs or from any of the neighbouring localities. An exposition of 'public purpose' which has received the approval of the Judicial Committee is that whatever else public purpose may mean, it must include a purpose that has an object and an aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. A Government servant is undoubtedly a public servant in the broad sense of the term, though very remotely a servant of the public, and it may also be said that the public are interested in the proper discharge by a Government servant of the duties of his office. But where the conditions of a Government servant's service do not require that accommodation is to be provided for him or there is nothing to show that there is some special reason for which it is essential to provide him with residential facilities or to find accommodation for him in a particular locality in order that he may be enabled to perform efficiently the duties of his office, I find it difficult to hold that the purpose of providing accommodation to a person merely because he is in. need of accommodation, is a purpose in which the public, who pay him by a salary for such services as he renders, are further interested, not to speak of being interested directly or vitally. I can, however, think of social cases. If, for example, it was considered expedient to provide accommodation to the members of a fire-brigade in the neighbourhood of the fire-station on the ground that they should be easily available and land situated near the fire-station was for that purpose acquired, I would be prepared to hold that the purpose would be a public purpose. Whether there were any special circumstances present in the case before us, does not appear.

20. Certain decisions on the question were cited before us to which I shall refer in the briefest terms. The decision of the Judicial Committee in Hamabai Framjee Petit v. Secretary of State for India, LR 42 Ind App, 44: (AIR 1914 PC 20) (K), appears to furnish an apt illustration of when provision of accommodation to Government servants can be a public purpose. The facts in that case were that owing to the dearth of suitable houses in Bombay and the high rents demanded, officials were reluctant to accept appointments there and as that circumstance was prejudicial to the efficiency of the various public services, certain lands held by a person under a lease, dating from the time of the East India Company, were resumed, in order that quarters for Government servants might be built thereon.

21. Other decisions cited before us were all decisions of the Supreme Court, namely, : [1955]1SCR777 . State of Bombay v. Ali Gulshan, : [1955]2SCR867 and State of Bombay v. R. Section Nanji, : [1956]1SCR18 (M). In the decision last cited, there is a full analysis of all the previous decisions. None of them covers exactly the case before us and they certainly do not make the decision of the question, whether the purpose in the present case was a public purpose, easier.

22. I need not, however, proceed further to decide the question finally, because, in my opinion, the appellant in the present case is not entitled to any relief by way of a writ of mandamus as prayed for by him. His case is that the house at 177-A, Chittaranjan Avenue, was allotted to other co-sharers on partition and that although he was living there, he was doing so on sufferance. The officer who held an investigation in the case does not appear to have believed that the appellant had no right of residence at 177-A, Chittaranjan Avenue,but with that question of fact we are not concerned.On his own showing, the appellant owns, besides premises No. 102-G, Russa Road, premises Nos. 102-A, 102-B, 102-C, 102-D, 102-H and 102-J, RussaRoad. Whether or not they or any of them is available to him is again a question of fact into which we are not required to enter. He may be judged by the case with which be came to the Court and his own conduct in relation to that case. If he was desperately in need of the flat in question for the purpose of his own residence, it is surprising that although a whole month eiapsed between the eviction of the tenant and the present order of requisition, he took no steps whatever to move into the occupation of the flat. He may have taken symbolical possession, but was obviously not residing there, because if he was, he could not have lent the use of the flat to S. P. Lahiri for the purpose of holding a marriage ceremony there. If, again, he felt aggrieved by the present order of requisition, it is not explicable why he did not move this Court after the notice to surrender the flat was issued on the 23rd of October, 1952. Even after possession had at last been wrested from him with police help, he did not move for about six months and approached this Court only on the 1st of June, 1953. By way of an explanation of this delay, his learned Advocate referred to a statement in para. 9 of the petition that after possession had been taken, the appellant had called upon the respondents to withdraw the requisition order and restore possession of the flat to him. No dates are given and it is not explained why as much as six months should have been required for demanding justice and obtaining a refusal. A writ of mandamus is not a writ of right. A person invoking the special jurisdiction of the Court for the extraordinary remedy by way of a writ is required to he diligent. If he was not, and if his conduct shows that his supposed need for the premises was probably a pretence and if he allowed possession under the order of requisition to mature for six months, the Court will not be inclined to come to his assistance by way of a writ, whatever other remedies he may or may not have.

23. The appeal, accordingly, fails and is dismissed, but there will be no order for costs.

Lahiri, J.

24. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //