JAGWANT KAUR KESARSING DANG Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an application for a writ under Article 226 of the Constitution. By this application an order made by the Collector of Poona under Section 5, Bombay Land Requisition Act is being challenged. The order was made on 16th April 1951, and the order states :

(2.) THREE points have been urged by Mr. Kotwal for challenging the validity of this order. The first is that the order is made by the Collector to whom the power has been delegated by the State of Bombay under Section 15, Land Requisition Act, and Mr. Kotwal's contention is that all that can be delegated under Section 15 is a power conferred or a duty imposed on the State Government by the Act. Mr. Kotwal's contention is that to the extent that the Collector has requisitioned the land, he has exercised a power properly delegated to him, but as far as the formation of the opinion is concerned, viz. , that the requisition is necessary or expedient, that is neither a duty nor a power and the formation of the opinion cannot be delegated under Section 15 to the Collector. Therefore, Mr. Kotwal's contention comes to this that although a land may be requisitioned by a delegated authority, the opinion in the first instance under Section 5 must be formed, by the State Government. In our opinion that is not a tenable contention because before the power can be exorcised under Section 5 the condition precedent to the exercise of that power must be satisfied, and the condition precedent is that in the opinion of the State Government it is necessary or expedient to requisition the property. Therefore, a duty is cast upon the State to satisfy the condition precedent before it exercises the power conferred upon it, and not only the power can be delegated but also the duty which is attached to the exercise of the power, and therefore when the Collector forms an opinion under Section 5, he is discharging a duty and is carrying out the condition precedent laid down in Section 5. Therefore there is no substance in this point, and the Collector has rightly formed the opinion necessary under Section 5 before he could exercise the power to requisition the property.

(3.) THE more substantial objection, however, to the validity of the order is that it contravenes the provisions of the Constitution. It is pointed out that the land is being requisitioned for the purpose of building a colony only for - Harijans and in doing so the State is discriminating in favour of the Harijans and against other members of the public who are not Harijans and thereby violating the provisions of Article 15 (1) of the Constitution. Now, we have had occasion to construe that article id various cases and it has been pointed out that Articles 14 and 15 must be read together and the effect of these two articles is not that the State cannot discriminate or cannot pass unequal laws, but if they do discriminate or they do pass unequal laws, the discrimination or the inequality must be based on some reasonable ground, and Article 15 (l) expressly states that discrimination merely on the ground of religion, race, caste, sex or place of birth is not and cannot be a reasonable ground. Therefore, if the State takes any action which is of a discriminatory nature and the discrimination is based merely on the ground of the religion, race or caste of a person or of a section of the public, then the action can be successfully challenged under Article 15. As the order stands, there can be no doubt that the colony which is intended to be constructed is intended for the benefit only of Harijans. Mr. Joshi has drawn our attention to the condition in which even today Harijans find themselves in this country, and Mr. Joshi says that the object of erecting this colony is to help people who are in a bad economic condition, who may not find houses to live in, and who deserve the support and sympathy of the State. Undoubtedly this is a very laudable object, but is there any reason why that laudable object should be confined only to Harijans as Harijans? There are members of the public belonging to other communities who are in an equally sad plight, and if the colony was being erected to meet the needs of people in a particular position or belonging to a particular stratum of society then undoubtedly it would be a public purpose which would not in any way be discriminatory under Article 15 (1 ). But when the State picks out members of a particular caste and wishes to give those members particular facilities, although other members of the public may equally be in need of those facilities, then undoubtedly the action is discriminatory and the only reason why this discriminatory action is taken is because the State wants to help members of a particular caste or community.