STATE OF BOMBAY Vs. HEMAN SANTLAL ALREJA

JUDGEMENT

(1.) This appeal arises out of a petition challenging an order of requisition made under Section 6 (4) (a), Bombay Land Requisition Act, 1948, requisitioning the premises of the petitioner who occupied them as a sub-tenant. When this petition first came up before Tendolkar J. he held that Act XXXIII [33] of 1948 was void. The State of Bombay came in appeal and we held (Heman Santlal Alreja v. State of Bombay, 53 com. L.R. 355), that that Act was not void and remanded the petition to the learned Judge for disposal on merits. The learned Judge considered various preliminary points that were raised with regard to the validity of legislation dealing with requisition. He came to the conclusion that Act XXXIII [33] of 1948 amended by the Bombay Land Requisition (Amendment) Act, 1950, (Act II [2] of 1950) and further amended by the Bombay Land Requisition (Second Amendment) Act, 1950, (Act XXXIX [39] of 1950) was void on various grounds and he also held that the order of requisition dated 29 5 1950, was bad inasmuch as it did not state the public purpose for which the premises had been requisitioned. He, therefore, issued a writ of mandamus against the State of Bombay restraining it from enforcing or taking any proceedings in the enforcement of that order. The State of Bombay has appealed from that decision.

(2.) In considering the validity of the Requisition Act, we have to bear in mind that although the administration of the Act may have resulted in some hardship, on the whole it is a beneficent measure intended to subserve a very pressing social need. It, therefore, calls at our hands a benevolent interpretation. The Court must always lean in favour of holding the validity of an Act rather than against it. There may be cases where a law is alleged to contravene fundamental rights. In such a case, undoubtedly, the Court must zealously scrutinize the provisions of the impugned Act in order to see that fundamental rights are not violated. But where what is challenged is only the letter of the law and substance is in the interest of a large body of citizens, then as far as possible the Court must try to uphold the substance and not permit the letter to defeat the object of the Legislature.

(3.) The first question that arises on this appeal is whether the Provincial Legislature set up under the Government of India Act, 1935, was competent to enact Act XXXIII [33] of 1918. It may be pointed out that in the former appeal before us it was not disputed by counsel 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 counsel make a concession at the bar, it means that the point is so clear and inarguable that it must be taken as well settled and any decision based on a concession must be considered as a binding decision. Therefore, we did hold in the last appeal that Act XXXIII [33] of 1948 was passed by a competent Legislature. The learned Judge below permitted the parties to re-agitate the question before him. Perhaps he thought that the question was of such importance that further arguments were necessary and the decision should not be permitted to rest on a mere concession. Be that as it may, the learned Judge has considered the question and has come to the conclusion that Act XXXIII [33] of 1948 was ultra vires of the Provincial Legislature which enacted it in 1948. (4) Section 299 (3), Government of India Act, 1935, provided (to the extent that it is material) that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land. The Act under consideration is an Act authorising the Government to requisition land for any purpose and the learned Judge has taken the view that requisition permissible under the Act is for an indefinite period and, therefore, in law such requisitioning amounts to compulsory acquisition, and as compulsory acquisition is admittedly not for public purposes, the Provincial Legislature were debarred from enacting any such law by reason of Section 299 (2), Government of India Act. Therefore the question that we have to determine is whether on a true construction of Act XXXIII [33] of 1948 it can be said that it is a law authorising the compulsory acquisition for public purposes of any land. The first question that arises is whether requisitioning, whether for a definite or indefinite duration, amounts to compulsory acquisition within the meaning of Section 299 (2), and in order to answer this question it is necessary to state the legislative history with regard to this sub-section. In Tan Bug Taim v. Collector of Bombay, 47 Bom. L. R. 1010, Bhagwati J. took the view that requisition was not acquisition because it only created in the Government the right to temporary use and possession of land and did not transfer any title. Pie therefore, took the view that the Provincial Legislature had no competence to legislate with regard to requisition of land as the subject-matter did not fall within Entry 9 of List II which dealt with compulsory acquisition of land. In view of this decision, the Government of India issued a notification on 21-10-1947, under Section 104, Government of India Act, by which the Governor. General empowered all Provincial Legislatures to enact laws with respect be the requisitioning of land, being a matter not enumerated in any of the Lists in Schedule 7 to the Act. It is, therefore, clear that the Government of India accepted Bhagwati J.'s decision as correct, realised that requisition was different from acquisition, that requisitioning was not provided for in any of the Lists, and under Section 104 expressly gave power to the Provincial Legislatures to legislate with regard to requisitioning of land. I should have thought that this legislative history makes it impossible to contend that requisitioning can ever be the same thing as acquisitioning. It is also clear that when the Provincial Legislature passed Act XXXIII [33] of 1913 it was not legislating in respect of Entry 9 in List II but it was legislating in pursuance of the power conferred upon it by the notification of 21-10-1917, and it may be noted that as far as this power is concerned it is not limited in the manner the power for compulsory acquisition is limited by Section 299(2), Government of India Act. If the Legislature legislated pursuant to the power conferred upon it under the notification, then no question can arise whether requisition was for any purpose or for public purpose.