Bookmark
PDF
Share
CaseIQ

The State Of Bombay v. Mohanlal Kapur .

Bombay High Court

Apr 18, 1951

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Summary of Opinion: Chagla, C.J.

Factual and Procedural Background

An order of requisition dated 12 December 1950 was challenged by the petitioner. The learned Judge below, Mr. Justice Shah, held that the order was invalid because it did not recite that the requisition was for the purpose of the State or for any other public purpose. The text of the order recited that the premises had become vacant on or after April 1950 and then stated that, "in exercise of the powers conferred by clause (a) of sub-s. (4) of s. 6 of the Bombay Land Requisition Act, 1948, the Government of Bombay is pleased to requisition the said premises," followed by a description of the premises.

The matter came before the court (Chagla, C.J.) on appeal from Mr. Justice Shah's decision. Counsel for the appellant (Mr. Seervai) advanced arguments challenging the conclusion that the order was invalid for lacking an express statement of the specific public purpose. The court considered the language and construction of s. 6(4)(a) of the Bombay Land Requisition Act, 1948 and delivered judgment dismissing the appeal with costs.

Legal Issues Presented

Whether the "order in writing" contemplated by s. 6(4) of the Bombay Land Requisition Act must state the purpose ("for the purpose of the State or any other public purpose") for which premises are requisitioned, or whether it is sufficient merely to state that the premises are requisitioned and to refer to the statutory provision (cl. (a) of sub-s. (4) of s. 6).
If the order must state the purpose, whether it is sufficient for the order to state generally that the requisition is for "the purpose of the State or any other public purpose," or whether the order must identify the specific State/public purpose on the face of the order.

Arguments of the Parties

Appellant's Arguments (as presented by Mr. Seervai)

The law does not require that the requisition order state the purpose for which the premises are requisitioned; an order in writing need only state that the premises are requisitioned.
Alternatively, even if s. 6(4)(a) requires stating the purpose, the order in this case complied by referring to "cl. (a) of sub-s. (4) of s. 6 of the Bombay Land Requisition Act" — that reference incorporates the statutory words "for the purpose of the State or any other public purpose" into the order.
Argued that practical difficulties or inconvenience might flow from requiring a more detailed statement of specific purpose in every requisition order (though he accepted that inconvenience is a weak basis for statutory construction).

Respondent's Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded from a close textual construction of s. 6(4)(a) and from basic principles about when the State may deprive an individual of property. The following points summarize the step-by-step reasoning contained in the opinion:

Foundational principle: The power of the State to requisition premises is founded on the existence of a purpose that is either a purpose of the State or some other public purpose. That purpose is a condition precedent to the exercise of power.
Justiciability: Whether a particular purpose qualifies as a State or public purpose is justiciable; the court may investigate the purpose and declare an order invalid if the purpose declared or relied upon is not, in law, a State or public purpose.
Mental decision before exercise: Before issuing a requisition order, the requisitioning authority must have determined for itself the purpose for which it is requisitioning. The purpose must exist in the mind of the authority before it issues the order; it cannot be post hoc or left to be decided after taking the property.
Construction of "order in writing": The phrase "order in writing" in s. 6(4) was interpreted to qualify the entire operative expression — "requisition the premises for the purpose of the State or any other public purpose" — rather than merely the words "requisition the premises." The court derived this from the placement of the phrase in the sub-section and from the fact that the Legislature used separate language ("and may use or deal with the premises for any such purpose") where it intended not to have the "order in writing" qualification apply.
Necessity of stating the specific purpose: The court held that it is not enough for an order merely to record that the property is requisitioned under s. 6(4)(a); the order must indicate the specific purpose of the State or public purpose on the face of the order. This is necessary to allow the subject to know the grounds of the requisition, to decide whether to challenge it, and to enable the courts to test the validity of the claimed purpose.
Response to the argument of inconvenience: The court observed that inconvenience is the last resort in statutory construction and found no practical difficulty in requiring the Government to state the specific purpose when it has determined one before issuing an order.
Response to the proviso point: Counsel had noted that in the proviso to s. 6(4) the Legislature specified that certain matters must be embodied in the order. The court responded that the reason the proviso expressly required particular content is that the phrase "order in writing" already qualified the operative clause; therefore the Legislature would not have redundantly repeated the requirement in s. 6(4)(a).
Conclusion of analysis: Given the above construction and principles, the court agreed with Mr. Justice Shah's view that the particular order under challenge was invalid on its face because it did not contain the necessary declaration that the property was being requisitioned for a State or other public purpose, and, importantly, did not identify the specific public purpose in the order itself.

Holding and Implications

Holding:

The appeal is dismissed.

The court affirmed the decision of the learned Judge below (Mr. Justice Shah) that the requisition order was invalid ex facie because it failed to state the specific purpose for which the premises were being requisitioned under s. 6(4)(a) of the Bombay Land Requisition Act, 1948. The appeal was dismissed with costs.

Implications:

Direct effect on the parties: The particular requisition order challenged in this case was held invalid on its face; the appellant's appeal failed and the order below was upheld as invalid.
Legal consequence articulated by the court: A requisition order issued under s. 6(4)(a) must, on its face, indicate the specific purpose of the State or other public purpose for which the property is requisitioned, so that the subject can assess validity and the courts can adjudicate whether the stated purpose qualifies as a State or public purpose under the statute.

Miscellaneous

Attorneys for appellants: Little & Co.

Attorneys for respondents: Madhavaji & Co.

Disposition: Appeal dismissed.

Show all summary ...

Chagla, C.J:—

An order of requisition dated December 12, 1950, was challenged by the petitioner, and the learned Judge below Mr. Justice Shah held that the order was bad on the ground that the order did not recite that the requisition was for the purpose of the State or for other public purpose. The order in question is to the following effect:

“Whereas, on inquiry it is found that the premises specified below had become vacant on or after the month of April 1950.

Now, therefore, in exercise of the powers conferred by clause (a) of sub-s. (4) of s. 6 of the Bombay Land Requisition Act, 1948, the Government of Bombay is pleased to requisition the said premises.”

Then follows a description of the premises.

Now, Mr. Seervai's first contention is that the law does not require that the order should state the purpose for which the premises are requisitioned. In order to appreciate this contention it is necessary to look at the language of s. 6(4) as amended. That section provides:

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

(a) requisition the premises for the purpose of the State or any other public purpose and may use or deal with the premises for any such purpose in such manner as it may appear to it to be expedient.”

It is clear, and Mr. Seervai does not dispute it, that the very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. It is also beyond dispute that the purpose of the State or any other public purpose is not a purpose which in the opinion of the State satisfies the qualifications laid down in the statute. Whether a particular purpose is a purpose of the State or any other public purpose is a justiciable issue and the Court may investigate into the purpose for which the State has requisitioned a particular property. If the Court is satisfied that the purpose for which the requisition was made was not a purpose of the State or any other public purpose, then it would be open to the Court to say that the order was made without the condition precedent being satisfied. It is also clear that before an order of requisition can be made, the requisitioning authority must have determined for itself what the purpose of the State or other public purpose is for which the requisition order is being made. It is not open to the requisitioning authority to make up its mind as to why it wants to requisition the premises or what use it wants to put those premises after the requisition is made. The condition precedent and the foundation of the exercise of the power must be present in the mind of the requisitioning authority before it issues the order by which it takes away the property of the subject. Now, on the question as to whether the order in writing contemplated by s. 6(4) requires the purpose for which the property is being requisitioned to be stated or not depends upon the construction of the sub-clause. What the order in writing is to be is stated in s. 6(4)(a), and Mr. Seervai's contention is that all that the order in writing requires is the statement that the premises are being requisitioned, or, in other words, Mr. Seervai suggests that the order in writing only qualifies “requisition the premises” and not the phrase that occurs after the word “premises”. There is no reason why, looking to the place of the expression “order in writing” in s. 6(4) and looking to the language of cl. (a), we should hold that the “order in writing” only qualifies “requisition the premises” and not the whole expression “requisition the premises for the purpose of the State and any other public purpose.” It is clear to my mind that the order in writing qualifies the whole expression up to “public purpose” from the fact that when the Legislation did not intend that expression to qualify any subsequent words they have again used the expression “and may use or deal with the premises for any such purpose.” Therefore, the Legislature did not intend that the order in writing should qualify “use or deal with the premises for any such purpose” and therefore they repeated the expression “and may” which occurs in the operative part of s. 6(4). Therefore, if that be the true construction, then the order in writing must not merely contain a statement that the premises are being requisitioned, but it must also state the purpose of the State or any other public purpose for which the premises are being requisitioned.

It is next argued by Mr. Seervai that in fact if that be the true construction, the order does contain the necessary averment required by s. 6(4)(a). Mr. Seervai says that although the words of s. 6(4)(a), viz. “for the purpose of the State or any other public purpose” are not set out in terms, by a reference they are so set out, and Mr. Seervai says that the very fact that the order says that the power is being exercised under cl. (a) of sub-s. (4) of s. 6 of the Bombay Land Requisition Act makes it clear that the power that is being exercised is the power referred to in s. 6(4)(a), not any power but the power with the limitations laid down in s. 6(4)(a). Therefore, by reference to the section the order does comply with the mandatory provisions of s. 6(4).

Even if we were to accept this argument of Mr. Seervai, the next question that arises—and that is of considerable importance—is whether it is sufficient for the requisitioning authority merely to state that they are requisitioning a certain property for the purpose of the State or any other public purpose, or whether it is necessary for the requisitioning authority to indicate in the order the specific purpose of the State or any other public purpose. Once it is accepted that the State can only requisition a premises for purposes of the State or any other public purpose and that is the condition precedent for the exercise of its power to requisition, if requisition is done for a purpose other than that indicated in s. 6(4)(a), then the order of requisitioning is bad. It will immediately be appreciated how necessary it is for the subject to know for what purpose the requisitioning powers of the Government are being exercised. The validity of the order must appear on the face of the order. The subject who is served with the order should be in a position to know that the order has been validly made. He should also be in a position to know that if the order is defective, he has a right to challenge it and he has a right not to obey it. If the order merely states that the property is being requisitioned for the purposes of the State or any other public purpose, it would be impossible for the subject to determine whether in fact the specific purpose for which the order of requisition was passed was a purpose of the State or any other public purpose. The officer or authority exercising the power under s. 6(4) may honestly and bona fide come to the conclusion that a particular specific purpose which he or it had in mind was a purpose specifying the conditions laid down in s. 6(4)(a), yet in law it may not be a purpose of the State or a public purpose. Whether that is so or not could only be tested provided the specific purpose was set out in the order. Therefore, it is necessary that the subject should be given proper intimation that the exercise of the power of requisitioning by the Government is a proper exercise and a valid exercise, and that intimation can only be given to the subject by stating the specific purpose for which the requisitioning is being made on the face of the order.

Mr. Seervai has drawn our attention to the difficulties that may arise if we were to put this interpretation upon s. (4)(a). He himself dealing with some other argument drew our attention to the fact that the argument of inconvenience is the last argument to which we should have recourse. But even assuming we were to appreciate the argument of inconvenience and difficulty, we see no difficulty that should result to the State in our putting this interpretation upon the section, because, as I said before, if the Government realises the limitation of its power under s. 6(4)(a), it will appreciate the fact that there must be some specific purpose which it must determine upon before it issues an order of requisitioning. If such a specific purpose has been determined upon, we see no difficulty whatever in the way of the Government in stating that object on the face of the order. The Courts have always construed liberally a purpose of the State or public purpose. After all, ultimately it is for the State and the Government to lay down the policy and prima facie to decide what is in the interests of the State or the public, and therefore Government should not feel any difficulty in stating what in its opinion has led to an order being made which deprives the subject of his property, because the interests of the State are paramount and the interests of the individual must take a second place.

Mr. Seervai has also drawn our attention to the fact that in the proviso to s. 6(4) where it was intended by the Legislature that something definite should appear in the order the Legislature has made provision for it, and what is pointed out is that in the proviso the Legislature has specifically provided that the declaration as to the vacancy to be made must be embodied in the order itself. The reason why this is not so stated in s. 6(4)(a) with regard to the purpose for which the requisition is to be made is obviously because the earlier expression “order in writing” in s. 6(4) qualifies the whole of the expression occurring in s. 6(4)(a), and therefore it would have been redundant for the Legislature again to state that the order in writing should also contain the purpose for which the premises were being requisitioned.

Therefore, in our opinion, the view taken by Mr. Justice Shah that the order is invalid ex facie, inasmuch as it did not contain the necessary declaration that the property was being requisitioned for a purpose of the State or a public purpose, was right. The appeal, therefore, fails and must be dismissed with costs.

Attorneys for appellants: Little & Co.,