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Heman Santlal Petnr. v. State Of Bombay

Bombay High Court

Jan 19, 1951

Judgment

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Factual and Procedural Background

A petition by Heman Santlal Alreja (the petitioner) was presented before Tendolkar J. alleging that he was a sub-tenant of certain premises and that the Government, by an order dated 29-5-1950 under s. 6(4)(a) of the Bombay Land Requisition Act, 1948, had requisitioned the premises in which he was a sub-tenant. The petitioner contended that the Government's order was void because, in his view, s. 6(4)(a) contravened the Constitution.

Because the constitutional question raised was of considerable importance and similar petitions were pending, Tendolkar J. referred the matter to a Division Bench and formulated several questions for decision. The Division Bench (Chagla, C.J.) indicated it would decide only those questions that directly arose from the facts of this particular petition and cautioned against expressing hypothetical opinions beyond the case's facts.

Legal Issues Presented

Whether the provisions of the Bombay Land Requisition Act, 1948 dealing with requisition or taking possession of land or premises are void on 26-1-1950 upon the coming into force of the Constitution of India (this question was expressly reframed by the Court).
The effect and interpretation of various sub-clauses of Article 31 of the Constitution (notably ss. (2), (3), (4), (5) and (6)) on pre-existing laws that authorize acquisition or requisition of property.
Whether Rule 1 of Order 27A, Civil P.C. requires the Court to give notice to the Advocate-General (or Attorney-General) even where the State (or Union) is already a party to the proceedings.
The validity of the Amending Act XXXIX of 1950 (as to whether it required reservation for the President under Art. 31(3) and whether retrospective validation of a provision rendered void under Art. 13 is constitutionally competent) — this issue was raised but ultimately not decided by the Court because it was unnecessary in light of the primary holding.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted that sections 5 and 6 of the Requisition Act (including s. 6(4)(a)) were void after the Constitution came into force (26-1-1950) under Article 13 because they were inconsistent with the fundamental rights in Part III.
Specifically, it was contended that SS. 5 and 6 allowed the Government to requisition property for any purpose, and therefore conflicted with the constitutional limitations on state power over property.

Counsel for the Petitioner (Sir Jamshedji) — Key Contentions

Argued that Article 31(5)(a) should be read as saving only the compensation-related element of Art. 31(2), not the “public purpose” limitation; accordingly, existing laws that did not limit acquisition to public purpose should be voided on constitutional grounds.
Contended that s. 6(4)(b) — which permits the State to require the landlord to let premises to specified persons/classes — imposes restrictions on the landlord's property rights for any purpose and therefore is not a reasonable restriction under Art. 19(5).
Raised objections to the Amending Act XXXIX of 1950, arguing it was invalid because it was not reserved for the President as required by Art. 31(3), and questioned whether the Legislature could retrospectively validate a provision that had become void under Art. 13.

Advocate-General / Respondent Position (as reported)

The Advocate-General supported the view that the Court had previously taken in related jurisprudence (as referenced by the Court) concerning the distinction between Art. 31(1) and Art. 31(2) and the limitations they impose.
With respect to Order 27A, the Advocate-General argued that notice to the Advocate-General (or Attorney-General) may be necessary even when the State (or Union) is already a party, because those offices have independent roles (examples cited: representation of charities, potential conflicts between the Bar and State interests).
Pointed to Order 27A Rule 3 (costs) to suggest the draftsman contemplated situations in which both the State and the Advocate-General might appear, supporting the conclusion that notice should not be withheld simply because the State is a party.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dwarkadas Shrinivas v. Sholapur Mills, 53 Bom. L.R. 218; (A.I.R. (38) 1951 Bom. 86)	Interpretation of Articles 19(1)(f), 31(1) and 31(2) — distinction between “deprivation” (Art. 31(1)) and “acquisition/taking possession” (Art. 31(2)); Art. 31(2) imposes two limitations (public purpose and compensation).	The Court recapitulated its prior view in this case to frame how Arts. 31(1) and (2) should be read and to support its analysis that the petitioner’s case fell within Art. 31(2).
A.K. Gopalan v. The State, 1950 S.C.R. 88; (A.I.R. (37) 1950 S.C. 27)	Support for the distinction and interpretation of Articles dealing with deprivation, acquisition and fundamental rights (as used by the Court to support its reading of Arts. 31 and 19).	The Court noted that the view it took found support in A.K. Gopalan, bolstering the interpretation that Art. 31(2) contains the two limitations and that Art. 19(1)(f) does not govern matters falling under Art. 31(1) or (2).
Charanjilal Chowdhary v. Union of India, 1950 S.C.R. 869; (A.I.R. (38) 1951 S.C. 41)	Recent Supreme Court decision, cited as affording fresh support for the Court’s view on the interpretation of Arts. 31 and 19.	The Court accepted that this recent decision furnished additional support for its earlier conclusions about the scope of Art. 31(1) vs. Art. 31(2) and the applicable limitations.

Court's Reasoning and Analysis

The Court proceeded in a step-by-step manner restricted to the facts of the petition:

The Court identified the provisions under challenge: s. 5 (requisition power with a limited exception for buildings actually occupied continuously for six months) and s. 6 (provisions for requisition of vacant premises, including sub-s. (4) allowing the State either to requisition premises and use them (s.6(4)(a)) or require landlords to let premises to specified persons/classes (s.6(4)(b))). The Government order in question was issued under s.6(4)(a).
The petitioner’s challenge was that ss.5 and 6, after the Constitution’s commencement (26-1-1950), became void by virtue of Art. 13 insofar as they conflicted with fundamental rights, especially those concerning property (Arts. 19(1)(f), 31).
The Court examined the constitutional regime as previously explained in its cited authority (Dwarkadas Shrinivas), distinguishing Art. 31(2) (which the Court read as placing two explicit limitations on State acquisition or taking possession: (a) for a public purpose, and (b) with payment of compensation) from Art. 31(1) (which deals with deprivation/police powers and may permit extinguishing rights without state acquisition).
The Court concluded that the petitioner’s grievance—requisition of tenancy rights and deprivation of possession—fell squarely within Art. 31(2). The Court expressly stated that, on its face, the Requisition Act contravened Art. 31(2) because it allowed requisitions “for any purpose,” lacking the public-purpose limitation.
The Court then examined Art. 31(3), (4) and (6) which deal respectively with future legislation requiring presidential reservation and assent, pending Bills at commencement of the Constitution, and laws enacted not longer than eighteen months before the Constitution’s commencement. The Court found the present Act did not fall into any of those categories.
Critically, the Court focused on Art. 31(5), which provides that “nothing in clause (2) shall affect the provisions of any existing law other than a law to which the provisions of clause (6) apply.” The Court read Art. 31(5) as a deliberate constitutional choice to protect existing laws (other than those within clause (6)) from being invalidated by clause (2), notwithstanding that clause (2) contains two limitations. The Court therefore held that the Requisition Act, being an “existing law” enacted prior to the 18-month bar in clause (6), was saved by Art. 31(5).
The Court addressed Sir Jamshedji’s narrower interpretation of Art. 31(5) (that it saved only the compensation requirement) and rejected it on the basis that the Constituent Assembly, with full knowledge of Art. 31(2)’s two limitations, chose to save existing laws (other than those contemplated by clause (6)) and not merely one component of clause (2).
The Court limited its decision to the precise complaint of the petitioner (a sub-tenant complaining of requisition under s.6(4)(a) / s.5). It explicitly refrained from deciding questions relating to s.6(4)(b) (restrictions on landlords) and from expressing any broader or hypothetical views.
On the procedural point, the Court interpreted Order 27A Civil P.C.: Rule 1 requires mandatory notice to the Advocate-General (or Attorney-General) where a substantial question of law concerning the Constitution arises and concerns the State (or Union). The Court rejected the argument that notice need not be given when the State is already a party, reasoning that the Advocate-General has independent functions and there may be occasions (e.g., conflicts between interests the Advocate-General represents and the State) where the Advocate-General’s presence is necessary. The Court also relied on Rule 3 (costs) to suggest that the draftsman anticipated scenarios in which both the State and the Advocate-General might appear.
The Court reframed the primary referred question (whether the Requisition Act provisions were void on 26-1-1950) and answered it in the negative because of the saving in Art. 31(5). Several other referred questions were rendered unnecessary by that conclusion (Q2, Q3 and others). The Court noted Q5 was answered in the affirmative (the opinion does not elaborate the text of Q5).

Holding and Implications

Holding:

The Court's core ruling was that the provisions of the Bombay Land Requisition Act, 1948 dealing with requisition or taking possession of land or premises are not void on 26-1-1950. Although those provisions would otherwise contravene Art. 31(2) by permitting requisition for any purpose, the Act was an “existing law” enacted earlier than the 18-month period contemplated by Art. 31(6) and is therefore saved by Art. 31(5).

On the procedural point under the Civil Procedure Code, the Court held that notice must be given to the Advocate-General (or Attorney-General) under Order 27A, Rule 1 whenever a substantial constitutional question concerning the State (or Union) arises, even if the State (or Union) is already a party to the proceedings.

Implications / Consequences

The immediate legal effect is that the Requisition Act, insofar as it authorises requisition or taking possession of premises, remains a valid law despite the Constitution's commencement because it was saved by Art. 31(5).
The petition was remitted to Tendolkar J. to be disposed of in the light of this judgment; the Court did not itself dispose of the petition on the merits beyond answering the constitutional question referred.
The Court declined to decide issues not necessary to the resolution of the petition (for example, the validity of Amending Act XXXIX of 1950 and questions concerning s.6(4)(b) and landlord rights), reserving those for cases where they directly arise on the facts.
The Court requested that the trial Judge (Tendolkar J.) determine the costs associated with the constitutional issue decided by the Division Bench when disposing of the petition on remand.

D.R.R

Reference answered.

Show all summary ...

Chagla, C.J:— A petn. was presented before Tendolkar J. by one Heman Santlal Alreja alleging that he was a sub-tenant of certain premises & that Govt. on 29-5-1950, had issued an order under s. 6(4)(a), Bombay Land Requisition Act, 1948, requisitioning the premises of which he was a sub-tenant, & that the order passed by Govt. was void because according to him S. 6(4)(a) of the Act was void as contravening the provisions of the Constitution. As the question raised was of considerable importance & as several other petns. were pending before Tendolkar J. which raised the same question, Tendolkar J. refd. the matter to a D.B & 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 particlar case & 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 & which always raises questions of great difficulty & 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, & the object of the Act was to provide for the requisition of land, for the continuance of requisition of land, & for certain other purposes. S. 5 gave power to the Govt. to requisition any land for any purpose & 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. S. 6 provided for requisition of vacant premises & it cast certain obligations upon the landlord to give intimation with regard to a vacancy. Sub-s. (4) of S. 6 provided:

“Whether or not an intimation under sub-s. (1) is given & notwithstanding anything contained in S. 5, the State Govt. may, by order in writing—

(a) requisition the premises & may use or deal with the premises in such manner as may appear to it to be expedient; or

(b) require the landlord to let the premises to specified persons or class of persons or in specified circumstances.”

3. Now as pointed out before, the order issued by Govt. is under S. 6(4)(a) & the order purports to requisition the premises in possession of the petnr. The challenge made by the petnr. both to S. 5 & S. 6 is that after the Constitution was enacted, viz. 26-1-1950, these sections became void under Art. 13 of the Constitution inasmuch as they contained provisions which are inconsistent with the provisions of Part III 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 & the Act continued to be a valid Act & all its provisions were valid until 26-1-1950, when by reason of the passing of the Constitution & by reason of Art. 13 of the Constitution certain provisions of the Act became void. What is contended on behalf of the petnr. is that SS. 5 & 6 give power to the Govt. to requisition property for any purpose, & 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 Art. 19(1)(f) & Arts. 31 & 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) & it is necessary perhaps briefly to recapitulate what we then held & the view we took of these articles. Our view was that Art. 31(2) dealt with cases where ownership of property or possession of property passed to the State under an order issued by the State & Art. 31(2) placed two limitations upon the power of the State either to acquire ownership or possession of any property & these two limitations were that the State could only acquire or take possession of property for a public purpose & the second limitation was that it could only do so provided it gave compensation. We also took the view that Art. 31(1) dealt with a different topic from the topic dealt with under Art. 31(2) & that the expression “deprivation” used in Art. 31(1) was wider & had different connotations than “acquisition” or “taking possession”. Our view was that Art. 31(1) really dealt with the powers of the State which under the American Constitution are known as Police powers, & Art. 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, & one of the instances we pointed out was that there may be cases 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 Art. 31(1). We also took the view that Art. 19(1)(f) did not control Art. 31(1) or 31(2) & that Art. 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 & dispose of property, & under sub-cl. (5) the State's power to impose restrictions upon such right were limited. Those restrictions could only be reasonable & it was for the Ct. to determine whether those restrictions were reasonable or not. But if a citizen was deprived of his property under Art. 81(1) or his ownership or possession was taken away under Art. 31(2), then no question of any right could arise under Art. 19(1)(f). Article 19(1)(f) applied only to such citizen who still held property & whose property was not taken away under Art. 31(1) or 31(2). If his property was taken away, then he could challenge such deprivation under Art. 31 but not under Art. 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) 1950 S.C 27) & 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.

4. Now, the case of the petnr. clearly falls under Art. 31(2) because his grievance, & his substantial grievance, is that the Requisition Act entitles the executive to requisition property not merely for a public purpose but for any purpose, & therefore an important limitation laid down by the Constitution under Art. 31(2) is not present in the Requisition Act. We have no doubt that the Requisition Act contravenes the provisions of Art. 31(2). The question is whether the Act having been passed in April 1948, there is any other provision in the Constitution which saves a law which contravenes Art. 31(2). Let us look at the scheme of the other sub-clauses of Art. 31. Sub-cl. (3) provides obviously for prospective legislation, legislation which may be passed subsequent to the enactment of the Constitutions, & it provides that no law as is refed. to in cl. (2) shall have effect unless it is reserved for the consideration of the President & has received his assent. Sub-cl. (4) deals with Bills which were pending at the commencement of the Constitution in the different Legislatures & it provides that when these Bills have been passed, they should be reserved for the consideration of the President & should receive his consent, & if they do receive his consent, such laws shall not be called in question in any Ct. of law although they may contravene the provisions of sub-cl. (2). And sub-cl. (6) deals with laws which were already enacted not longer than 18 months before the commencement of the Constitution, & with regard to these laws the provision in sub-cl. (6) is that within three months from the commencement of the Constitution they should be submitted to the President for his certification & if the President certifies these laws, they shall not be called in question on the ground that they contravene the provisions of sub-cl. (2). Therefore the scheme of Art. 31(3)(4) & (6) is clear. It deals with future legislation, it deals with legislation which was pending in the form of Bills when the Constitution came into force, & it deals with legislation which was on the statute book for a period not longer than 18 months before the commencement of the Constitution. It is clear that the Act we have to consider does not fall into any one of these three categories. It certainly does not fall under cl. (3), it was not in the form of a Bill at the commencement of the Constitution & so it does not fall under cl. (4), & it was passed longer than 18 months before the commencement of the Constitution & so it does not fall under cl. (6). We then turn to Art. 31(5) & that provides that nothing in cl. (2) shall affect the provisions of any existing law other than a law to which the provisions of cl. (6) apply. Therefore the Constitution, in the very article which deals with the subject matter covered by Art. 31(2), provides that article will in no way affect any existing law, the qualification being an existing law which falls under cl. (6), viz. a law which came into force only 18 months before the coming into force of the Constitution. But with regard to all the other existing laws, laws which existed prior to the 18 months mentioned in cl. (6), those laws were not to be affected by the provisions of Art. 31(2). Therefore the test of validity which the Constitution laid down under Art. 31(2) was not to be applied to all existing laws other than the laws which fall under Art. 31(6). If the law was valid, then it would not become void under Art. 13 because it contravened any of the provisions of Art. 31(2).

5. Therefore the position is that although the Act in question is an Act dealing with requisition of property, as it was enacted by a competent Legislature prior to the 18 months' limitation laid down in Art. 31(6), it is a valid law although it provides for requisition for a purpose other than a public purpose. Sir Jamshedji has argued that Art. 31(5)(a) merely refers to the provision with regard to compensation contained in Art. 31(2). In other words, Sir Jamshedji's argument is that if there is a law which does not provide for compensation, then if it was passed prior to the 18 months' period laid down in Art. 31(6) it shall not be challenged under Art. 13. But according to Sir Jamshedji, Art. 31(5) does not deal with the question of acquisition being for a public purpose. According to Sir Jamshedji every Act dealing with requisition must provide that the requisition is for a public purpose, & if it does not so provide, on the Constitution coming into force such an Act is void under Art. 13. The difficulty of Sir Jamshedji is that he cannot lay his finger on any provision of the Constitution which prohibits the Legislature from acquiring or taking possession of any property otherwise than for a public purpose. That topic is only dealt with in Art. 31(2) & we have held in the appeal to which I have refd. that the limitation upon the Legislature that it can only acquire or take possession of property for a public purpose is implicit in Art. 31(2). Therefore, if those are the two limitations upon the power of the Legislature under Art. 31(2), it is inarguable that when Art. 31(5) refers to cl. (2) as not affecting the provisions of any existing law we should hold that what the Constituent Assembly was thinking of was only one limitation in Art. 31(2) & not the other limitation. With the full knowledge that Art. 31(2) contained two limitations the Constituent Assembly chose to save all existing laws other than those which fell under Art. 31(6) although those laws may not embody one or both the limitations contained in Art. 31(2). Therefore, in our opinion, it is clear that the present Act, although it may contravene the provisions of Art. 31(2), is saved by Art. 31(5)(a).

6. We wish to make it clear that we are only dealing with the provisions of the Act to the extent that they refer to requisition of land or premises. Sir Jamshedji has drawn our attention to the other provisions of the Act where limitations are put upon the landlord's right to use his property in such manner as he thinks proper, & the argument has been advanced before us that whatever may be the position with regard to orders under s. 6(4)(a), as far as orders under s. 6(4)(b) are concerned, which require the landlord to let the premises to specified persons or class of persons or in specified circumstances, that is a restriction upon the right of property of the landlord, & according to Sir Jamshedji as such restriction can be placed for any purpose & not necessarily for a public purpose, such restriction is not reasonable & therefore should not be upheld under Art. 19(5). As we said before, we are proposing in this matter only to deal with the facts of the case. We have not before us a landlord who is complaining of the violation of his fundamental right to use his property in such manner as he likes. We have before us a sub-tenant whose grievance is that his tenancy right has been requisitioned by the Govt. & he has been deprived of the possession of the premises of which he is a sub-tenant. The case of the sub-tenant clearly & obviously falls under s. 6 (4)(a) or s. 5 & we have only dealt with the narrow question whether the provisions with regard to requisitioning or taking possession of property contained in the Requisition Act are valid in view of the fact that the Constitution came into force on 26-1-1950, & the orders of Govt. challenged in this petn. were issued subsequent to that date. The Advocate-General also feels that we should not be asked to express an opinion on any other set of facts which may require consideration at the proper time.

7. A minor question has also been refd. to us & that is the proper interpretation of O. 27A, Civil P.C That is a new provision & it was recently embodied in the Code. In this petn. the State of Bombay was a party & the procedural question that we have to decide is whether, although the State of Bombay was a party to this petn. it was incumbent upon the Ct. to give notice to the Advocate-General. There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the constitution & rule 1, order 27a makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State & to the Attorney General if it concerns the Union Govt. As the rule stands, it is clear & explicit & as I said before mandatory & it makes it incumbent upon the Ct. in every suit where such a question arises to give notice to the Advocate-General or the Attorney General as the case may be. What is urged before us is that R. 2 makes it clear that the object of the Legislature in providing R. 1 was that the Advocate-General or the Attorney General should have notice only in cases where the State was not a party, the contention being that it is the State that should have notice & not the Advocate-General or the Attorney General as such, & that the reason for giving the notice to the Advocate-General or the Attorney General was that they represented respectively the State & the Union Govt. & therefore, it is contended that it would be futile & useless to give notice to the Attorney General or the Advocate-General when the Union Govt. or the State were already parties to the suit or proceedings. For this purpose our attention is drawn to R. 2 which provides that the Ct. may at any stage add the State or the Union as a party where upon receipt of notice under R. 1 or otherwise the Advocate-General or the Attorney General applies for the addition of the State or the Union as a party, & what is argued is that R. 2 suggests that the object of giving notice under R. 1 is to make the State or the Union a party to the suit or proceeding, & if the State or the Union is already a party then no object can be served by giving notice to the Advocate-General or the Attorney General. In our opinion, as the Advocate-General has rightly pointed out, there may be cases where the Advocate-General may be required although the State is a party to the suit. He has given an instance which may perhaps be no longer appropriate that the Advocate-General represents charity apart from his being the legal adviser of the State & a conflict may arise between the State & the charity & it would be for the Advocate-General to decide whether he should take up cudgles for the charity or represent the State in that particular matter. It is also known that the Advocate-General is the leader of the Bar. He not only represents the State, but he also represents the bar. A question may arise where there may be a conflict between the rights & privileges of the members of the Bar & the rights of the State & in such cases it would be very desirable not only to have the State before the Ct. but also the Advocate-General in his capacity as Advocate General, & therefore we do not see any reason why we should read in R. 1 that the Advocate-General or the Attorney-General has to be given notice merely as the mouth-piece of the respective Govts. They have independent rights & independent functions to discharge & as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation. The Advocate-General has also drawn our attention to R. 3 which deals with costs & which provides that where under R. 2 Govt. is added as a deft. in the suit, the Advocate-General or the Govt. shall not be entitled to or liable for costs. This seems to suggest that the draftsman of the rule contemplated that even where the State or the Union was added as a party to the suit the Advocate-General may still appear & therefore the question of costs had to be dealt with both with regard to the State & the Advocate-General. It may be that in majority of cases the matter may be academic & not of much importance, but we accede to the argument of the Advocate-General that we should not pub any limitation upon R. 1 when the Legislature did not choose to do so. We, therefore, hold that in every case which involves a question refd. to in R. 1 notice must be given by the Ct. to the Advocate-General or the Attorney-General as the case may be.

8. Now turning to the questions refd. to us by Tendolkar J. We will reframe question 1 & the question so reframed is:

“Whether the provisions of the Bombay Land Requisition Act 1948, dealing with requisition or taking possession of land or premises are void on 26-1-1950, upon the coming into force of the Const. of Ind.”?

9. & our answer is in the negative. Question 2 does not arise following upon the judgment. Question 3 also does not arise. Sir Jamshedji wanted to argue that the Amending Act XXXIX[39] of 1950 was bad inasmuch as it was not reserved for the consideration of the President & his assent was not received as required by Art. 31(3). Sir Jamshedji also wanted to argue that it was not competent to the Legislature to validate retrospectively a provision of the law which had became void under Art. 13 of the Constitution. But it is unnecessary for us to decide either of these two questions because we have held that the unamended Act did not contravene the provisions of the Constitution & because the order of requisition which is challenged was issued under the old Act & not under the Amended Act. Question 4, it is unnecessary to consider. Question 5, we answer in the affirmative.

10. The petn. will go back to Tendolkar J. to dispose of it in the light of this judgment.

11. We have heard counsel with regard to costs & we think the fairest order to make would be to request the learned Judge who will be disposing of the petn. to deal with the costs of this issue which we have derided. We feel that as he will be seized of the merits of the case & the ultimate decision will be given by him, it will be better that he should deal with the costs of this issue.