HEMAN SANTLAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) A petn. was presented before Tendolkar J. by one Heman Santlal Alreja alleging that he was a sub-tenant of certain premises and that Govt. on 29-5-1950, had issued an order under Section 6 (4) (a), Bombay Land Requisition Act, 1948, requisitioning the premises of which he was a sub-tenant, and that the order passed by Govt. was void because according to him Section 6 (4) (a) of the Act was void as contravening the provisions of the Constitution. As the question raised was of considerable importance and as several other petns. were pending before Tondolkar J. which raised the same question, Tendolker J. refd. the matter to a D. B. and in doing so the learned Judge raised several questions for our decision. As we shall presently point out, we propose to decide only those questions which directly arise from the facts of this particular petn. It is always inadvisable to travel outside the facts of a particular case and express hypothetical opinions which may only embarrass Judges who may have to consider cases in future which arise on different facts. This is particularly so when we are dealing with our Constitution which is a new enactment and which always raises questions of great difficulty and complexity.

(2.) IT would first be necessary to consider the impugned provisions of the Act in question. The Act was passed on 11-4-1948, and the object of the Act was to provide for the requisition of land, for the continuance of requisition of land, and for certain other purposes. Section 5 gave power to the Govt. to requisition any land for any purpose and the limitation on that power was that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section, Section 6 provided for requisition of vacant premises and it cast certain obligations upon the landlord to give intimation with regard to a vacancy. Sub-section (4) of Section 6 provided :

(3.) NOW as pointed out before, the order issued by Govt. is under Section 6 (4) (a) and the order purports to requisition the premises in possession of the peter. The challenge made by the petnr. both to Section 6 and Section 6 is that after the Constitution was enacted, viz. 26-1-1950, these sections became void under Article 13 of the Constitution inasmuch as they contained provisions which are inconsistent with the provisions of Part in which deal with fundamental rights. It is not disputed that when the Act was passed in April, 1948, the Legislature that passed it had legislative competence and the Act continued to be a valid Act and all its provisions were valid until 26 1-1950, when by reason of' the passing of the Constitution and by reason of Article 13 of the Constitution certain provisions of the Act became void. What is contended on behalf of the petnr. is that Sections 5 and 6 give power to the Govt. to requisition property for any purpose, and any provision of law which gives such power to the State is contrary to the fundamental rights embodied in the Constitution. The right to property under the constitution is dealt with under Article 19 (1) (f) and Articles 31 and 32. We had occasion to consider the scheme of these Articles in a recent judgment in Dwarkadas Shrinivas v. Sholapur Mills, 53 Bom. L. R. 218 : (A. I. R. (38) 1951 Bom. 86) and it is necessary perhaps briefly to recapitulate what we then held and the view we took of these articles. Our view was that Article 31 (2) dealt with cases where ownership of property or possession of property passed to the State under an order issued by the State and Article 31 (2) placed two limitations upon the power of the State either to acquire ownership or possession of any property and these two limitations were that the State could only acquire or take possession of property for a public purpose and the second limitation was that it could only do so provided it gave compensation. We also took the view that Article 31 (1) dealt with a different topic from the topic dealt with under Article 31 (2) and that the expression "deprivation" used in Article 81 (1) was wider and had different connotations than "acquisition" or "taking possession". Our view was that Article 31 (1) really dealt with the powers of the State which under the American Constitution are known as Police powers, and Article 31 (1) gave the power to the State to deprive a subject of his property without paying compensation. But our view was that the deprivation must be something different from acquisition or taking possession, and one of the instances we pointed out was that there may be oases where the State may be compelled to extinguish the right of a subject in a property without the State itself becoming the owner or taking possession of the property. Such cases were dealt with under Article 31 (1 ). We also took the view that Article 19 (1) (f) did not control Article 31 (1) or 31 (2) and that Article 19 (1) (f) only dealt with cases where the subject was the owner or in possession of property. In those cases the Constitution gave him the right to hold and dispose of property, and under Sub-clause (5) the State's power to impose restrictions upon such right were limited. Those restrictions could only be reasonable and it was for the Ct. to determine whether those restrictions were reasonable or not. But if a citizen was deprived of his property under Article 51 (1) or his ownership or possession was taken away under Article 31 (2), then no question of any right could arise under Article 19 (1) (f ). Article 19 (1) (f) applied only t o Such citizen who still held property and whose property was not taken away under Article 31 (1) or 31 (2 ). If his property was taken away, then he could challenge such deprivation under Article 31, but not under Article 19 (1) (f ). We find support in the view we took in A. K. Gopalan v. The State 1950 S. C. R. 88 : (A. I. R. (37) 1960 3. 0. 27) and now the Advocate General has drawn our attention to a recent judgment of the S. C. in Charanjilal Chowdhary v. The Union of India, 1950 S. C. R. 869 ; (A. I. R. (38) 1951 S. C. 41) which seems to afford fresh support to the view we took of these two articles.