SARDARNI GURDIAL KAUR Vs. STATE

JUDGEMENT

(1.) On 17-7-1951 a Bench of this Court, of which I was a member, declared the Punjab Requistioning of Immovable Property Act, 1947 and 1948, 'ultra vires' of the Government of India Act, 1935, on the ground that by those Acts permissible requisitioning of property was not required to be for a public purpose. To meet this decision the Punjab Requisitioning of Immovable Property (Amendment and Validation) Ordinance, 1951, has been promulgated on 3-8- 1951 by the President exercising under Article 356 of the Constitution the powers of the Governor. This Ordinance made under Clause (1) of Article 213 of the Constitution amends Ss. 2 and 3 of the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948 in the following manner. In Sub-section (1) of Section 2 of the Act, after the words "requisition any immovable property" the words "for a public purpose" are, and are deemed always to have been, inserted. In Sub-section (1) of Section 3 of the Act, after the words "acquire such property" the words "for a public purpose" are and are deemed always to have been inserted. By Clause 4 of the Ordinance provision is made for validation of requisitions and acquisitions made before the commencement of the Ordinance. It is provided that a presumption 'shall exist that every such requisition or acquisition was made for a public purpose, and this presumption is to exist notwithstanding any judgment, decree or order of any Court. By Clause 5 of the Ordinance provision is made for restoration of proceedings in which any requisition or acquisition has been found to be invalid on the ground that the Act under which the requisition or acquisition was made did not contain a specific provision that the requisition or acquisition should be for a public purpose. I understand that this Ordinance has since been replaced by an Act in similar terms made by the President under powers conferred by Section 3 of the Punjab State Legislature (Delegation of Power Act, 1951 (XLVI of 1951).

(2.) The application before us in Civil Writ No. 40 of 1951 is under Article 226 of the Constitution and is directed against action taken or about to be taken by Government to requisition or acquire land held by the petitioner in village Dhirpur of the Kharar Tehsil of the Ambala District for the purpose of rehabilitating persons whose land has been acquired in the Chandigarh area for the purpose of construction of the new capital of the Punjab. The same points are taken in this application as were taken in those applications in which the validity of the Requisitioning Acts of 1947 and 1948 was considered. The present application has now come up for hearing with certain companion applications -- Civil Writs Nos. 96, 106, 115 and 145 of 1951. The contentions now taken by the learned Advocates who appear for the petitioners in these matters are firstly that Ordinance No. IV of 1951 is 'ultra vires' of the powers of the President. This is claimed to be so on two grounds: (1) that as the Requisitioning of Immovable Property Act, 1948, has been declared invalid no amendment of that Act could be, made; and (2) that as Ordinance No. IV of 1951, although published in Delhi on 3-8-1951, was not published in the Punjab Gazette until 7-8-195.1, the promulgation of the Act was on this latter date, and as Parliament was in session on 7-8-1951, therefore the President had no power to promulgate an Ordinance under Article 213 (1) of the Constitution. Secondly, it is claimed that assuming the Ordinance to be valid it is for the Courts to determine whether the requisitioning was or was not for a public purpose, and it is claimed that in the particular cases no public purpose could be served by the requisitioning which is to be made or which has been made.

(3.) For the argument that no amendment can be made of an Act which has been declared invalid reliance has been placed mainly upon observations made by the Supreme Court of America in 'Norton v. Snelby County', 30 J S SC L Ed 178, where it was said (at p. 186):