LILAVATI BAI versus THE STATE OF BOMBAY

\\"hcreas, on inquiry it is found that spccifif'd below had become vacant in the October 1952 ;

p. 724

Now, therefore, in exercise of the by clause (a) of sub-section (4) of section 6 Bombay Lane! Requisition Act, 1948 (Bombay XXXIII of 1948) the Gm·ernment pkasecl to requisition the said premises for purpo c namely, for housing a Bombay ment servant.

p. 724

Premises

p. 724, margin A

flat ;\o. 3 on the 1st floor of the as Hem Prabha situated at 68, Marine By order and in the name of

pp. 724–725, margin A

Governor of Bombay."

p. 725

This Order was meant to be served on ( l) Shri Hirabhai H. Patel, admittedly the landlord of the premises, (2) Shri Narottam Dharamsey Patel aforesaid, and (3) Shri Dharamdas Chellaram, who, as already indicated, was dead at the date the Order was made.

p. 725

The petitioner challenged the validity of the Order of requisition set out above. Her petition was heard by Tendolkar J. who by his judgment dated April 21, 1954, dismissed the same. The petitioner moved this Court for an appropriate writ, direction or order under Art. 32 of the Constitution, challenging the vires of the Act, as also the legal efficacy of the Order impugned. She also filed a petition praying for special leave to appeal from the judgment aforesaid of the Bombay High Court. Both the matters have been heard together and will be governed by this judgment.

p. 725

Before dealing with the contentions raised on behalf of the petitioner, it is convenient first to set out, in so far as it is necessary, the legislative history of the law impugned and its certain salient features which are relevant for purposes of this case. This Act was passed by the Provincial Legislature of Bombay on April 948, on being em powered . by the Governor-General in exercise of powers conferred on him by s. 104 of the Government of India Act, 935. Initially it was to remain in force until March, 31, 1950. But by the amending Act, Bombay Land Requisition(Amendment) Act, 1950 (Bombay Act No. II of 1950) published on March 28, 1950, its life was extended up to the end of March 1952. By the amending Act, ss. 8-A, 8-B and 9-A were added making substantial changes which need not be set out here, as they do not enter into the controversy. The life of the Act was subsequently extended further, up to the end of December 1958. By the Bombay Land Requisition (Second Amendment) Act, 1950 (Act XXXIX of 1950), the Act was further amended so as to substitute the words "the purpose of the State or any other public purpose" for the words "any purpose" in s. 5 of the Act. This was obviously done to satisfy the requirements of Art. 3 of the SUPRE~,IE COCRT REPORTS 1q·

pp. 725–726

-1 Cor,sritution. Consequential changes \\ere also me.de in ss. 6 <'nd 7 of the Act. By s. 6 of the amending

p. 726

Act it v:"s proYiciccl that "The amendments made by "· this ,\ct shall be deemed to ha·:e been and ahrnys to been ll1'1c:e with effect from the 26th Janua;·y 1950, ..... ". Tines the 2mendrnent was gi\-en rctrospcctiYc operation. The pru\·isions of ss. 5, 6 and 3 <eftcr the amc,,dmcnts aforesaid \omitting the portions not necessary for our purpose) arc in these terms :-

p. 726

".'· ( 1) If in the opinion of the State Government it is necessary or expedient so to do, the State GoYernment may by order in writing requisition any land for puij,ose of the State or other jJUb/ic jm1j1osc :

p. 726

Provided that no building or part thereof wherein the O\\ner, the lanc:jord or the tenant, as the case may be, has actually resided for a continuous periorl of six months immediately preceding the date of the order shall be requisitioned under this section.

p. 726

( 2) Where any building or pan thereof is to be requisitioned under sub-section (r), the State GO\ernmcnt shall make such enquiry as it deems fit and make a declaration in the order or requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall lie conclusive evidnzce that the owner, landlord or tenant has not so resided.

p. 726

6. ( 1) If any premises situate in an area specified by the State Government by notification in the Official Gazette, are vacant on the elate of such notification and wherever any such premises are vacant or become yacant after such date by reason of the landlord, the tenant or the wb-tenanL as the case may be, ceasing to occupy the premises or by reason of the release of th" premise' from requisition or by reason of the premises bf'ing nc\\·ly erected or reconstructed or for any other reason the l;mdlorcl of such premises shall give intimation thereof in the prescribed form to an officer authorised in this behalf by the State Government.

p. 726

(4) \Vhether or not an intimation ( 1) is given and notwithsta11ding anything in section 5, the State Government writing --

p. 727

(a) i·cquisitiun tlie premises for State or any other public purpose and with the premises for any such purpose in such as rnJy appear to it to be expedient,

p. 727

Provided that where an rm\cr is clause (a) ffquisitioninu; the premises which no intimation is gin'.ll by the landlord, GoYCrnment shall make such inquiry and make a declaration in the order were vacant or had become vacant, date referred to in sub-section ( 1) and shall be conclusive evidence that the premises were had so become vacant :

p. 727

Explanation-For the purposes of

p. 727

( a) premises which art". in the landlord, the tenant or the sub-tenant, be, shall be decm1'.d to be or become landlord ceases to be in occupation tenant or sub-tenant ceases to be in termination of his tenancy, eviction, assignment transfer in anv other manner of hi~ premises or otherwise, not withstanding or occupation by any other person prior when wch landlord, tenant or sub-tenant be in occupation;

p. 727

1 3. ( 1) Every order made under 8-B or sub-section ( 7) of section g or section

p. 727

( a) if it is an order of a general nature a cb:,s of persons, be published in pm:cribecl by rules made in this behalf

p. 727

(b) if it is an order affecting an individual, ration, or firm, be served in the manner the service of a summons in Ruic of Rule 3 of Order XXX, as the case may Schedule of the Code of Civil Procedure,

p. 727

(c) ifit is an order affecting an individual person other than a corporation or firm, be served on the person·-

p. 728

(i) personally, by cleliverillg or tendering to him the order, or \;i) by post, or

p. 728

(iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous ;Jart of the premises in which he is k:iown to ha\'e last resided or carried on business or worked fo~ g-ain.

p. 728

(2) \\'here a question arises whether a person \\'aS duly informed of an order made in pursuance of sections : 6, 7, 8-A or 8-B or, sub-section (7) of section 9 or section compliance with the requirements of subsection 1) shall be conclusi11e proof that he was so informed ; but failure to con·1ply with the said requirements shal! not preclude proof by other means that he was so informed, or affect th~ validity of the order.

p. 728

............................ ". (Gnderlining ours).

p. 728

At the outset it is neccss;,ry to state that the ma:n grouncls of attar,k against the constitutionality of the Act based on such fundamental rights ;ls are recognised by Ans. 19!1)([) and 31 (2) of the Constitution must be o\·erruled in view of the decision of the C01•stitution Bench r,f this Court in State of Bombay v. Bhanji Munji ('). In that case this Court upheld the validity of the Act with reference to the provisions of the a;·ticles aforesaid of the Constitution. But the learned counsel for the netitioner comended that he attacked the 1'ircs of the Act on grounds other than those which had hccn speciiically dealt with by this Court in the clec;sion jus.t referred to. \Ve now proceed to deal with those fresh grounds on their merits. It was contended that the Act became invalid on January 26, 1950 inasmuch as it was in conflict with Art. 3r(2) of the Constitution. The Act was, therefore, as good as dead by the time Act II of 950 extending the life of the Act was enacted as aforesaid. The Act being void, its extension by Act II of 1950 was equally void. Similarly, it was further argued that the amendments effected by the amending Act II of 1950 and Act XXXIX of 1950 required the assent of the President and that as admittedly no such assent had been given, they had no effect as provided in Art. 3 3) of the Constitution. This chain of submissions is founded on the admitted non-compliance with the requirements of Art. 3 (3). It has not been contended that the Act when passed on April l, r 948, was not good law. It is also clear that the Act is not covered by the provisions of cl. (6) of Art. 3 The Acr is thus covered by the saving clause, cl. 5(a), being an existing law other than a law to which the provisiom of cl. (6) apply. The Act, therefore, would be valid evefl if the provisions of cl. ( 2) of Art. 3 l are not in terms fully satisfied, in so far as the Act did not before its amendment bv Act XXXIX of r950 contain the expression "for a public purpose". As already pointed out, this Court in the case cf T!te State of Bombay v. Blzanji Munji ( has laid it down that the Act was 11ot invalid even after the commencement of the Constitution simply because it is not provided in express terms that the acquisition or requisition had to be for a public purpose, provided that from the whole tenor and intendment of the Act it could be gathered that the requisition was for a public purpo·,e, and for the benefit of the community at large. The amending Act only made explicit what had been left to be gathered from the whole tenor of the Act, as pointed out by this Court in the case cited above. The argument that the amending Acts, II of 1950 and XXXIX of 1950, required the assent of the President under cl. (3) of Art. 3 has, therefore, no force. Act II of 1950, in so far :rs it affects the present controversy, only extended the life of the Act by two years and Act XXXIX of 1950 only made explicit what was not so in the Act as originally passed, and are not such laws as come within the purview of cl. (3) of Art. 31 inasmuch as those Act3 are merely an extension or explanatory of the substantive Act which is an existing law within the meaning of the Constitution. Clause (3} of Art. 3 r in terms applies to a law made by the legislature of a State, after the commencement of the Constitution ; whereas the Act had been passed in its substantive form in April 948. Hence, there is no difficulty in holding that the Act which was good law before the commencement of the Constitution did not become void under Art. 3 of the Constitution, because there was nothing in the Act which was inconsistent with the provisions of Part III of the Constitution. If the Act ~rns good law afte'!" the commencement of the Constitution, it follows that the amendments aforesaid made in 1950, were eqnally good law, even though the assent of the President had not been obtained.

pp. 728–730

Secondly, the decision of this Court in The State of Bombay v. Bhanji Mv11ji (') (snpra) itself has ruled to the contrary with reference to the provisions of Art. 31 (2) . V\'e cannot, therefore, go back upon our decision in the case aforesaid. On these considerations the pc•ition under Art. 32 of the Constitution must fail on the ground that no fundamental rights of the petitioner as would entitle her to seek redress from this Court, h~.,·c been contravened.

p. 730

It remains to consider the other arguments advance! on behalf of the petitioner which have a bearing on the petition for special leave to appeal from the judgement of the Bombay High Court. It has been contended that s;. 5 and 6 of the Act quoted above and underlined by us have made certain matters conclusive, so that the High Court or even this Court could not go behind the order of the State Government holding that the tenant had not resided in the premises for a continuous period of six months immediately precerling the date of the order (s. 5), or that the premises had become vacant in the month of October 19.')2, as stated in the Order impugned in thie case. It is contended that the legislature had, by making those provisions rendering those matters conclusively proved, impaired the powers of the High Court under Art. 226 and of this Court under Art. 32 of the Constitution. Anotl,~r branch of the argument is that the declaration of vacancy is dependent upon a collateral facl ,-.hich has

p. 730

73 to be found by the Government on such enquiry as it may deem fit and proper and its conclusion ori such a collateral fact could not be placed by the Act beyond scrutiny by the High Court or by this Court. In this connection it was also argued that on the question of vacancy the finding of the State Government may be conclusive on the "factual aspect" but not on the "legal aspect" of the matter. In other words, it was contended that it was still open to the courts to find whether the facts found constituted in law "vacancy" as defined in the Act. In this connection strong reliance was placed on the following observations of the Judicial Committee of the Privy Council in the case of Hubli Eiectricity Co Ltd. v. Province ef Bombay ( at pages 65 and 66 :--

p. 731

"The question what obligations are imposed on licensees by or under the Act is a question of law. Their Lordships do not read the section as making the government the arbiter on the construction of the Act or as to the obligations it imposes. Doubtless the government must, in expressing an opinion for the purpose of the section, also entertain a view as to the question of law. But its view on law is not decisive. If in arriving at a conclusion it appeared that the government had given effect to a wrong apprehension of the obligations imposed on the licensee by or under the Act the result would be that the Government had not expressed such an opinion as is referred to in the section."

p. 731

There are several answers to this contention. In the first place, it is well settled that observations made with reference to the construction of one statute cannot be appHed with reference to the provisions of another stamte which is not in pari materia with the statute which forms the subject matter of the previous decision. The .Judicial Committee was dealing with the provisions of s. 4 (I) of the Indian Electricity Act, I 910, which did not contain the words "conclusive evidence" or any words to that effect. That decision of the Judicial Committee, if it can at all be applied to the Act now before us, is against the petitioner in so far as it has construed the words "opinion of the Provincial Government". Those words or words of similar import

pp. 731–732

appear in the beginning of s. 5. In the words of the T~ Stat~ Judicial Committee, those words signify the subjective opinion of tht; Government and not an opinion subject to objective tests. The observations quoted above only show that on a proper construction of the provisions of the statute then before the Judicial Committee, the opinion of the Government, if it was made non-justiciable, was confined to the question of whether there Lad been a wilful and unreasonably prolonged default, but did not cover the question of the opinion of Government relating to the obligations imposed by the statute on the licensee, by or under the Act. Hence those observations are absolutely of no assistance to the petitioner on. the question of the full implication of the rule making certain matters "conclusive evidence" under the provisions of ss. 5 and 6 of the Act. This question appears to ha\·e been canvassed in a number of cases in the High Court of Bombay. In the case of ]agatchandra v. Bomba)' Province (1) TGndolkar J. had ruled that the declaration made by the Government shall be "conclusive evidence with regard to all facts involved in the determination of v.1cancy but that it was not conclusive with regard to the iafcrences to be drawn from or the lcg't! conseque:1ces of such focts. The correctness of that proposition was questioned in anothc:r case before another learned J u<lge of that Court, Shah J., who referred it to be determined b,· a larger Bench. Chagla C. J. and Gajcndragadkar J. (now one of us) examined that question in some detail and O\·erruled the decision of Tendolkar J. (Vide 1Hohsinali Mohomed Ali v. The State of Bomba_y(')). The Bombay High Court in the last r1entioned case held that on a declaration being made by the State Government that there "·as a vacancy, it was conclusive both as t0 the facts and the constituent elements of "vacancv". understood under the Act. The High Court reiie,'l in this connection on the observations of the Judicial ~.J.; Committee of the Privy Council in Moosa Goo/am Arif! v. Ebrahim· Goolam Ariff(1) and of Lord Cairns in Peel's case( and of Lord Parker of. Waddington in Bowan v. Secular Society Ltd. (3).

pp. 732–733

In this connection the learned counsel for the petitioner also pressed in aid of his agrument the well known distinction between the jurisdiction of a court or authority to decide a certain fact as one of the issues in the controversy and certain collateral facts on which the jurisdiction to determine the controversy could arise. It was argued that the finding on the question of vacancy by the State Government was a "jurisdictional fact" in the sense that unless it was found that there was a vacancy, the jurisdiction of the State Government to make the declaration and to requisition the premises could not arise. This aspect of the matter has been considered by this Court in the case of Rai Brij Raj Krishna v. S. K. Shaw & Brutlzers ( That case concerned the construction of the p!'ovi-sions sion of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Bihar Act III) of 190· This Court held that the Controller had been vested with the jurisdiction to determine all questions including the question whether or not there was non-payment of rent and on finding that there was default in the payment of rent, with the jurisdiction to order eviction of the tenant. The finding of the question of default was not a jurisdictional finding ~n the sense in which learned counsel for the petitioner asks us to hold with reference to the finding of the State Government in this case that there has been vacancy. In the reported case this Court held further that even if the Controller had wrongly decided the question of defatilt in the payment of rent, his effective order on the question of eviction could not be challenged in a court of law. Mr. Justice Fazl Ali delivering the judgment of the court made reference to the well known observations of Lord Esher, M.R. in the case of Queen v. Commissioners for Special Purposes of the Income tax(5) and to

p. 733

95 7 J the observations of the Privy Council in the case of the Colonial Bank of Australasia v. Willan('). After referring to those observations and to the provisions of the statute then before the Court, this Court held that the Act empowered the Controller alone to decide whether or not there was non-payment of rent and that decision was essential to his order for eviction of the tenant under s. r r. That decision of the Controller, the Court further held, could not be challenged in a court of law. The decision of this Court just referred to is an apt illustration of the rule which applies with equal force to the provisions of the Act now before us. The Act has made a specific provision to the effect that the determination on the questions referred to in ss. 5 and 6 of the Act by the State Government shall be conclusive evidence of the declaration so made. But that does not mean that the jurisdiction of the High Court under Art. or of this Court under Art. or on appeal has been impaired. In a proper case the High Court or this Court in the exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with. But the special powers aforesaid of this Court or of the High Court cannot extend to reopening a finding by the State Government under s. 5 of the Act that the tenant has not actually resided in the premises for a continuous period of six months immediately preceding the elate of the order or under s. 6 that the premises had become vacant at about the time indicated in the order impugned. Those are not collateral matters which could on proper evidence be reopened by the courts of law. The legislature in its wisdom has maclc those declarations conclusive and it is not for this Court to question that wisdom.

p. 734

As an offshoot of the agrument that we have just been examining it was contended on behalf of the petitioner that Explanation :a) to s. 6 quoted above contemplates a vacancy when a tenant (omitting other words not necessary) "Ceases to be in occupation upon termination of his tenancy, eviction, or assignment or transfer in any other manner of his interest in the premises or otherwise". The argument proceeds further to the effect that in the instant case admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them ; and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. In the fir$t place, as already indicated, we cannot go behind the declaration made by the Government that there v1·as a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise". Those words arc not words of limitation but of extension so as to cover all pos~ible ways in which a vacancy may occur. Generally speaking, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tellant's interest. But the legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meanint, of the preceding clauses, for example, a case where the tenant's occupation has ceased as a result of trespass by a third party. The frgislature, in our opinion, intended to cover all lJo;;sible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our notice.

pp. 734–735

On the other hand, by way of illustration of decisions to the contrary may be cited the case of Skinner & Co. v. Shew & Co. ('). In that case the Court of Appeal

p. 735

.. s. c.

p. 735

had to consider the words of s. 32 of the Patents, Designs & Trade Marks Act, 1883 (46 & 47 Viet. c.57), to the following effect :-

p. 736

"\\There any person claiming to be the patentee of any invention, by circulars, advertisements or otherwise threatens any other person with any legal

p. 736

. ,, procee mgs d ............... . Their Lordships repelled the contention that the words "or otherwise" occurring in that section had to be read ejusdem generis with "circulars", and "advertisements". They observed that by so doing they will be cutting down the intendment of the provisions of the statute when clearly the words "or otherwise" had been used with a contrary intention. The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. In our opinion, in the context of the object and mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words "or otherwise".

p. 736

The only other contention which remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioner's husband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either. An order like the one passed under s. 6(4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity. But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premise~ to the so called "lodger" or "paying guest". Admittedly the petitioner's husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation. The fact that the petitioner's husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under s. 3 of the Act should be erased from the order. But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the ca5e of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a' copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioner's husband had died before the date of the order impugned, it could affect only the so called "lodger" who had been, on the findings, left in occupation of the premises after October 952. He has not made any complaint about non-service. The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in questiou at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid

pp. 736–738

dmrn in sub-s.(2) of s. 13. In any event, as the Tk ef concluding words of the section have provided, any

p. 738

irregularity or failure to comply with the requirements J~ of the section cannot "affect the validity of the order".

p. 738

As all the g,rounds urged in support of the petitions fail, they are dismissed with costs, one set.

p. 738

Petitions dismissed. SOHANLAL

p. 738

v. THE UNION OF INDIA

p. 738

and J. L. JJ.) ~f mandamus-Disputed of !aw-

p. 738

U!~Y of iu_dividual-~S'tate

p. 738

bona qf illegal ivrit against

p. 738

~f

p. 738

.J, ment of~. and Accomn1od~tion into on but letter of

p. 738

Later, in of the Union of India J

p. 738

that not him. out s of the

p. 738

(XXVII of ~fhe then and on J

p. 738

under of the High The High Court Union of India and

p. 738

of J.

p. 738

that High Court erred in of There of the

p. 738

and 'vhether J had any property in of not in the of the

p. 738

party's and of The proper The rem~dy of

p. 738