LADY DINBAI DINSHAW PETIT Vs. DOMINION OF INDIA

JUDGEMENT

(1.) THIS is an appeal from a judgment of Tendolkar J. by which he dismissed the pltfs'. suit. The pltfs. are the trustees of a certain trust and as such trustees they were in possession of an immovable property admeasuring about 1,10,000 square yards situated at Tardeo Junction, Bombay. It would appear that on 7-3-1942, possession was given either of the whole of this plot or a very large portion of it to the Supplies Department which belonged to the Govt. of India, and this possession was given in contemplation of a lease which was proposed to be entered into between the pltfs and the Govt. of India. On 1-4-1942, a requisition order was passed by which this property was requisitioned, and on 28-10-1942 an order of acquisition was passed acquiring this property, and it is these two orders of requisition and acquisition which are being challenged by the pltfs. in this suit. The pltfs'. contention is that they are still the owners of this property free from requisition or acquisition ordered under these two orders.

(2.) IN order to understand and appreciate the contentions of the parties, it is necessary to look into the provisions of the law under which these two orders were made. Under Rule 79 (1), which is a rule made under Section 2 (2), Defence of India Act, 1938, power was given to the Central Govt. to requisition property, provided in the opinion of that Govt. ic was necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Under Sub-clause (2) of that rule where land was requisitioned by the Central Govt, the Central Govt. had the power to dispose of and use such land in such manner as it thought fit. A notfn. was issued on 26-4-1941, by which the powers which the Central Govt. had under Rule 79 (1) were also conferred upon the Provincial Govt. A further notfn. was issued on 4-10 1941, by which all the powers conferred on the Central Govt. in regard to requisition were made esercisable also by all Collectors within the limits of their respective jurisdiction. This power of delegation was exorcised by the Central Govt. under Section 3 (4), Defence of India Act. By that sub-section: "the Central Govt. may. by order direct that any power or duty which by rule under Subrule (1) is conferred or imposed upon the Central Govt. shall in such circumatances and under such conditions, if any as may be specified in the direction be exercised or discharged: (a) by any officer or authority subordinate to the Central Govt. or (b) by any Provincial Govt. or fay any officer or authority subordinate to such Govt. or (c) by any other authority. " Whereas in the case of the notfn. of 26-4-1941, the delegation was made to the Provincial Govt. under Sub-clause (b), by the notfn. of 4-10-1941, the delegation was made under Sub-clause (c) to any other authority. A further nobfn. was issued on 26-11-1941, the material portion of which provided that where land had been requisitioned by the Central Govt. or the Provincial Govb. it was given the power to acquire such land by serving on the owner thereof the necessary notice, and it further provided that where such notice of acquisibion was served the land shall vest absolutely in the Central or the Provincial Govb. making the acquisition free from all encumbrances, and the period of the requisition thereof shall end. Therefore, for the first time on 26-11-1941, power of acquisition was conferred upon the Central Govt. and the Provincial Govt. On 16-5-1942, Rule 75a was passed and the effect of that rule was to consolidate Rule 79 with bhe amendments which had been made thereto by the various notfns. and by this rule, Rule 79 was deleted. On 25-4-1942, a notification was issued by the Government of India by which the powers conferred on the Central Govt. by Rule 76a were delegated to Collectors within their respective districts, and on 29-5-1942, a notfn. was issued by the Govt. of Bombay delegating their powers under the same rule also to Collectors and Dist. Mags, within the limits of their respective jurisdiction. 3. The order of requisition of 1-4-1942, was issued by the Collector of Bombay, and the order recites that whereas it is necessary and expedient for securing the public safety and bhe efficient prosecution of war to requisition the land (the particulars of which are set out) in exercise of the powers conferred by Rule 79, Defence of India Rules read with Govt. of India notfn. dated 4-10-1941, the Collector by that order requisitioned the land from the date of the order. Therefore, it is clear that this order of requisition was issued by the Collector by virtue of the powers delegated to him by bhe Central Govt. under bhe notfn. of 4-10-1941, to which reference has been made. The order of acquisition--strictly it is a notice dated 28-10-1942 --was also issued by bhe Collector of Bombay pursuant to the nobfn. of 25-4-1942, by which the power to acquire was delegated to him by the Central Govb. These two orders were challeaged by the pltfs. on various grounds, and these grounds as appear from the plaint were : (1) That the Provincial Govt. has no authority to requisition the land under Section 79; (a) that the requisition was made at the instance of the Govt. of Bombay and in support of that it was stated that bhe possession of the land was also taken by the Govt. of Bombay; (3) bhab the Govt. of Bombay did not require bhe land for any purpose mentioned in the order; (4) that the purpose of the acquisition was a purpose which was be come into existence after the termination of the war, viz. , accommodation for the police of Bombay; and (5) that the object of the acquisition was to deprive bhe pltfs. of 15 per cent. in addition to bhe market value of the land to which they would have been entitled under Section 23 (2), Land Acquisition Act, if the land had been compulsorily acquired under thab Act. The learned Judge came to the conclusion that the challenge made by the pltfs. to these orders on these grounds was unsustainable and therefore the pltfs. were bound to fail. The pltfs. made an appln. for the amendment of the plaint by which they wanted to aver a further and a different challenge be these two orders. The learned Judge refused be granb leave be the pltfs. to amend the plaint, and substantially the appeal before ua has been argued by Mr. Desai on behalf of bhe applts. on the basis that bhe learned Judge was in error in refusing to granb this amendment. The main reason which weighed with the learned Judge in refusing leave to amend was that bhe ground now sought be be incorporated in the plaint was a ground to which no reference whatsoever had been made in the plainb as originally drafted. But what weighed with the learned Judge even more was the consideration that if leave to amend was granted, it would contravene bhe provisions of Section 80, Civil P. C. , because according to the learned Judge whab was now attempted to be pleaded was a fresh cause of action, the notice of which had not been given as required under Section 80 of the Code. The learned Judge, therefore, took the view that it was futile to granb leave to amend when the result of bhe amendment would be a contravention of bhe mandatory provisions of Section 80 of bhe Code and the pltfs. would not be entitled to maintain the suib in respecb of bhe cause of action attempted to be pleaded by the amendment.

(3.) SECTION 80 of the Code provides that no suit shall be instituted against the Crown or against a public officer in respect of any act purporting be bs done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been given, and the notice has to state the cause of acbion and other particulars which are set oub in the section. It is clear that the object of the section is to give intimation be Govt. of bhe grievance that the subject has and to give to Govt. an opportunity be redress that grievance before it is brought to Cb. The section is not intended to be an instrument of oppression againsb the subject. It is perfectly brue thab the P. C. in Bhagchand Dagadusa v. Secretary. of State, 54 I. A. 338 : (A. I. R. (14) 1927 P. C. 176) laid down that Section 80 was express, explicit and mandatory and admitted of no implications or exceptions. But even so, as pointed out by Sir John Beaumont in Chandulal v. Govt. of Bombay, 45 Bom. L. R. 197 : (A. I. R. (30) 1943 Bom. 138) the section should be construed with some regard to commongense and to the object with which it appears to have been passed.