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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
Acts
  • Act XXXIII[33] of 1948 amended by the Bombay Land Requisition (Amendment) Act, 1950, (Act II [2] of 1950)
  • Bombay Land Requisition (Second Amendment) Act, 1950, (Act XXXIX[39] of 1950)
  • Act II of 1950, and assuming Act II of 1950 contravenes Art. 31(2)
  • provisions of Act II[2] of 1950, because Act XXXIII[33] of 1948
  • Act XXXIII[33] of 1948 as amended by Act XXXIX[39] of 1950
  • provisions in the Constitution is Art. 13(1). Article 13(1)
  • S. 3 of Act XXXIII[33] of 1948 the Provincial Government
  • Act XXXIII[33] of 1948 as amended by Act II[2] of 1950
  • S. 9(1)(a), Madras Maintenance of Public Order Act, 1949
  • Hindu Women's Rights to Property Act, 1937, (1941) 3
  • 1948.4. Section 299(2), Government of India Act, 1935,
  • Act XXXIII[33] of 1948 by Act XXXIX[39] of 1950,
  • GOVERNMENT OF INDIA ACT
  • SECTION 293 GOVERNMENT OF INDIA ACT
  • Preventive Detention (Amendment) Act of 1951
  • Act XXXIII[33] of 1948 by Act II[2] of 1950;
  • Hindu Womens Rights to Property Act, 1937,
  • S. 292 nor S. 293, Government of India Act
  • S. 6(4)(a), Bombay Land Requisition Act, 1948,
  • S. 299(2) of the Government of India Act
  • Hindu Women's Rights to Property Act
  • provisions of Act XXXIII[33] of 1948.
  • PREVENTIVE DETENTION ACT 1950
  • provisions till Act II[2] of 1950
  • S. 299(4), Government of India Act,
  • S. 299(2), Government of India Act.
  • 29-5-1950, Act XXXIX[39] of 1950
  • S. 7, Bombay General Clauses Act
  • provisions of Act II[2] of 1950.
  • S. 292, Government of India Act
  • provisions of S. 6 of that Act.
  • S. 104, Government of India Act,
  • Government of India Act. Laws
  • S. 11(1) of the amending Act
  • S. 7, General Clauses Act.
  • S. 2 of Act II[2] of 1950,
  • CITY CIVIL COURT ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
Acts
  • Act XXXIII[33] of 1948 amended by the Bombay Land Requisition (Amendment) Act, 1950, (Act II [2] of 1950)
  • Bombay Land Requisition (Second Amendment) Act, 1950, (Act XXXIX[39] of 1950)
  • Act II of 1950, and assuming Act II of 1950 contravenes Art. 31(2)
  • provisions of Act II[2] of 1950, because Act XXXIII[33] of 1948
  • Act XXXIII[33] of 1948 as amended by Act XXXIX[39] of 1950
  • provisions in the Constitution is Art. 13(1). Article 13(1)
  • S. 3 of Act XXXIII[33] of 1948 the Provincial Government
  • Act XXXIII[33] of 1948 as amended by Act II[2] of 1950
  • S. 9(1)(a), Madras Maintenance of Public Order Act, 1949
  • Hindu Women's Rights to Property Act, 1937, (1941) 3
  • 1948.4. Section 299(2), Government of India Act, 1935,
  • Act XXXIII[33] of 1948 by Act XXXIX[39] of 1950,
  • GOVERNMENT OF INDIA ACT
  • SECTION 293 GOVERNMENT OF INDIA ACT
  • Preventive Detention (Amendment) Act of 1951
  • Act XXXIII[33] of 1948 by Act II[2] of 1950;
  • Hindu Womens Rights to Property Act, 1937,
  • S. 292 nor S. 293, Government of India Act
  • S. 6(4)(a), Bombay Land Requisition Act, 1948,
  • S. 299(2) of the Government of India Act
  • Hindu Women's Rights to Property Act
  • provisions of Act XXXIII[33] of 1948.
  • PREVENTIVE DETENTION ACT 1950
  • provisions till Act II[2] of 1950
  • S. 299(4), Government of India Act,
  • S. 299(2), Government of India Act.
  • 29-5-1950, Act XXXIX[39] of 1950
  • S. 7, Bombay General Clauses Act
  • provisions of Act II[2] of 1950.
  • S. 292, Government of India Act
  • provisions of S. 6 of that Act.
  • S. 104, Government of India Act,
  • Government of India Act. Laws
  • S. 11(1) of the amending Act
  • S. 7, General Clauses Act.
  • S. 2 of Act II[2] of 1950,
  • CITY CIVIL COURT ACT
Smart Summary

Structured Summary of the Opinion (Chagla, C.J.)

Factual and Procedural Background

This appeal arises from a petition challenging an order of requisition made under S. 6(4)(a) of the Bombay Land Requisition Act, 1948 (Act XXXIII[33] of 1948). The requisition order requisitioned premises occupied by the petitioner as a sub-tenant.

Procedural history as recited in the opinion:

  • When the petition first came before Tendolkar, J., he held that Act XXXIII of 1948 was void.
  • The State of Bombay appealed; this Court previously held (Heman Santlal Alreja … v. The State Of Bombay, 53 Bom. L.R 355) that the Act was not void and remanded the petition to the learned Judge for disposal on merits.
  • On remand the learned Judge again considered preliminary points, concluded that Act XXXIII of 1948 (as amended by subsequent amendment Acts) was void on various grounds, and held that the requisition order dated 29-5-1950 was bad because it did not state the public purpose for requisitioning. The learned Judge issued a writ of mandamus restraining enforcement of that order.
  • The State of Bombay appealed from that decision and this opinion is the appellate decision disposing of that appeal (and related cross-objections).

Legal Issues Presented

  1. Whether the Provincial Legislature constituted under the Government of India Act, 1935, was competent to enact Act XXXIII[33] of 1948 (Bombay Land Requisition Act, 1948).
  2. Whether requisitioning under the Act (including requisition for an indefinite or extended duration) amounts to "compulsory acquisition" within the meaning of S. 299(2) of the Government of India Act, 1935.
  3. Whether orders of requisition made under a temporary statute continue in force after expiry of that statute by virtue of S. 7 of the Bombay General Clauses Act, 1904, or otherwise.
  4. Whether Act II[2] of 1950 (which extended the duration of Act XXXIII[33] of 1948 and amended certain substantive provisions) was intra vires the State Legislature under the Constitution.
  5. Whether the constitutional concept of "existing law" (Art. 31(5)(a) and Art. 366(10)) differs from "law in force" (Art. 13 and Art. 372) such that an extension or potential extension contained in pre‑Constitutional legislation is saved from the operation of Art. 13(1) or Art. 31(2).
  6. Whether Act XXXIX[39] of 1950 (which substituted narrower words for “any purpose” and was given retrospective effect from 26-1-1950) cured any unconstitutionality in the earlier enactments.
  7. Whether the requisition order dated 29-5-1950 was invalid on its face for failure to state the public purpose of requisition.

Arguments of the Parties

The opinion records certain arguments advanced by named counsel. The following summarizes those arguments as presented in the text.

Arguments reported for Mr. Jhaveri (as recorded)

  • Asked the Court not to interpret S. 299(2) of the Government of India Act in the light of Art. 31(2) of the Constitution because Art. 31(2) addresses both acquisition and taking possession and has safeguards for both; he argued a distinction may be drawn between "acquisition" and "taking possession," and thus S. 299(2) should not be read to include taking possession.

Arguments reported for Mr. Palkhivala (as recorded)

  • Contended that the Constitution draws a distinction between "existing law" and "law in force." He argued that Art. 31(5)(a) saves only "existing laws" (as defined in Art. 366(10)) and that "law in force" (the term used in Art. 13 and Art. 372) is conceptually broader; therefore the potential extension of Act XXXIII[33] (beyond 31‑3‑1950) may not be saved by Art. 31(5)(a).
  • Later in the opinion it is recorded that Mr. Palkhivala abandoned some contentions relating to Act XXXIX[39] of 1950 (specifically the contentions before the Court below that Act XXXIX did not receive Presidential assent and that a Legislature could not retrospectively amend an unconstitutional Act).

Arguments reported for the Solicitor-General / State (as recorded)

  • The Solicitor-General contended that the requisition order of 29-5-1950 could not possibly have stated a public purpose because, he said, at the date of the order the law was different (i.e., Act XXXIX[39] had not yet been passed). The opinion records the Court's response that S. 6 of Act XXXIX deems certain orders made on or after 26-1-1950 to have been made under the Act as amended.
  • The Solicitor-General requested that the Court decide the constitutional questions; the Court records acceding to that request to remove uncertainty about the law.

Arguments recorded for the petitioner (as recorded)

  • The petitioner challenged the validity of the statutes and the requisition order. The opinion records that the petitioner amended his petition below to raise constitutional questions; the Court notes that the petitioner later abandoned particular contentions in respect of Act XXXIX[39] of 1950 as mentioned above.

Table of Precedents Cited

Precedent Rule or Principle Cited For (as stated in opinion) Application by the Court (how the opinion used it)
Heman Santlal Alreja … v. The State Of Bombay, 53 Bom. L.R 355 Earlier appellate decision by this Court holding that Act XXXIII[33] of 1948 was not void. Referred to as prior determination that Act XXXIII of 1948 was passed by a competent Legislature; used to reject a re‑argued competence point below based on prior concession and decision.
Tan Bug Taim v. Collector of Bombay, 47 Bom. L.R 1010 Bhagwati, J.'s view that requisition is not acquisition because it creates only a right to temporary use and possession and does not transfer title. Used to support the proposition that requisitioning is distinct from compulsory acquisition and to explain the subsequent notification under S. 104, Government of India Act empowering Provincial Legislatures to legislate on requisition.
Minister of State for the Army v. Dalziel, (1944) 68 C.L.R 261 (Australia) Majority held taking possession for an indefinite period constituted acquisition; minority held the State was in position of licensee (no acquisition). The judgment was discussed as underlying the divergence in English/Australian authorities; the Court observed the Australian High Court did not have the same legislative history as in India and did not directly decide the requisition/acquisition distinction here.
Dwarkadas Shriniwas v. Sholapur Mills, 53 Bom. L.R 218 Distinction between taking possession and acquisition: acquisition implies transfer of ownership/title; taking possession does not. Adopted to show requisition under Act XXXIII[33] of 1948 is taking possession (temporary use/possession) and not acquisition (no transfer of title), supporting intra vires conclusion.
Charanjit Lal v. Union of India, 53 Bom. L.R 499 (S.C.) Mukherjea, J.'s statement that in context of Art. 31(2) "acquisition" refers to acquisition of the entire interest by transfer of title; an obiter on taking possession that substantial dispossession may constitute taking possession. Opinion treated Mukherjea, J.'s observation as obiter and not as overruling Bhagwati, J.; relied on the distinction that acquisition implies transfer of ownership/title.
Krishnan v. The State of Madras, (1951) 14 S.C.J 453 Rule that where a temporary statute is limited in duration, discretionary powers under it are subject to the overall statutory limit (example given regarding preventive detention statute limited in duration). Applied to show that temporary statutes do not authorize actions beyond their fixed duration; supported the conclusion that requisition powers under Act XXXIII[33] were limited by the Act's duration.
Narottamdas Jethabhai v. Phillips, 52 Bom. L.R 571 Decision confirming the judgment of Bhagwati, J. (referred to in the background concerning delegated legislation issues). Referred to in background discussion of delegated‑legislation doctrine and its influence on Act II[2] of 1950 being passed by Legislature rather than by executive notification.
The Empress v. Burah, 5 Ind. App. 178 (P.C.) Principle that conditional/notification powers conferred by statute operate directly under the Act; efficacy of actions under such powers derives from the Act itself. Quoted to support the view that extension power exercised by Government under S. 3 of Act XXXIII would derive its efficacy from the original statute itself and that an enactment extending the Act (Act II[2] of 1950) was not alien to the original law.
Hodge v. The Queen, (1883) 9 A.C 117 Observation that a Legislature delegating regulation powers does not efface itself; it retains power to abolish the agency or legislate directly. Used to justify the Legislature's enactment of Act II[2] of 1950 (taking the matter directly into its own hands) rather than as an improper usurpation of delegated power.
United States v. Powers, (1938) (reported citation in opinion) Principle that extending the duration of a temporary Act by amendment makes the original Act continuous; no new law was created thereby (quoting Douglas, J.). Applied to support the proposition that Act II[2] of 1950 did not create a new law but extended the life of Act XXXIII[33] of 1948 so that the original Act continued without hiatus.
The State Of Bombay v. Mohanlal Kapur, 53 Bom. L.R 669 Proposition that every requisitioning order must state the purpose (purpose of the State or any other public purpose) for which premises are requisitioned. Applied to hold that the requisition order of 29-5-1950 was ex facie bad for failing to state the public purpose, particularly in light of the deeming provision in s.6 of Act XXXIX[39] of 1950.
In re Keshav Madhav Menon / Keshavan Madhava Menon v. State of Bombay (cases cited in opinion) Discussed whether laws inconsistent with fundamental rights are void ab initio or void only to the extent of inconsistency; Supreme Court held existing laws void only to the extent of inconsistency (Art.13). Used to show that when the legislature subsequently cured an inconsistency (by Act XXXIX[39] of 1950) the Court should take notice of the legislative cure and not declare the statute void today.
Suryapalsingh v. U.P. Govt., A.I.R (1951) ALL. 674 (Full Bench) Held that Entry 36 in List II is not controlled by Entry 42 in List III (i.e., State legislative competence is not thus restricted). Referred to in support of the view that the State Legislature under the Constitution is competent to legislate for requisitioning for purposes other than Union purposes.
Romesh Thappar v. State of Madras, 1950 S.C.R 594 Illustrated the severability test and the risk of upholding a law that is susceptible of application for unconstitutional purposes (Sastri, J.'s observation on severability). Distinguished: the Court explained Romesh Thappar concerned severability and fundamental‑rights limits rather than construction to keep an enactment within legislative competence.
Rex v. Basudev, 1949 F.C.R 657 Federal Court held a provincial preventive detention law ultra vires because it was not connected with maintenance of public order. Considered but held not directly helpful: opinion notes it concerned a law plainly outside the subject‑matter of the relevant Entry rather than an interpretation to keep the law within competence.
Macleod v. Attorney General for New South Wales, (1891) A.C 455 Presumption against legislative intention to exceed jurisdiction; interpret general words in statute as limited to the Legislature's competence. Applied as supporting principle that when a Legislature uses broad words ("any purpose") the presumption is that it meant only those purposes within its competence (i.e., excluding Union purposes).
United Provinces v. Mt. Atiqa Begum, (1940) 2 F.C.R 110 Interpretation of S. 292 showing S. 292's purpose to keep existing Indian law in force despite repeal of authorising law. Referred to in discussing "existing law" and the treatment of marginal notes and interpretations of continuity of law.
Balraj Kunwar v. Rae Jagatpal Singh, 31 Ind. App. 132 (P.C.) Privy Council observation that marginal notes to statutes are not strictly admissible for construing the Act, but the opinion acknowledges evolving practice. Discussed in context of whether marginal notes to Art. 372 and related provisions assist interpretation of "existing law" versus "law in force."
In re The Hindu Women's Rights to Property Act, 1937, (1941) 3 F.C.R 12 Presumption that a legislature does not intend to exceed its jurisdiction; construe broad words to refer to subjects within competence. Quoted to support the interpretive presumption that the Bombay Legislature intended "any purpose" to be read as "any purpose within its competence."

Court's Reasoning and Analysis

The Court's reasoning proceeds in a sequence of legal and statutory‑historical analyses. The following summarizes the step‑by‑step approach and the legal principles the Court applied, sticking to the text's own sequence and statements:

  1. Benevolent construction of social‑welfare legislation: The Court began by emphasizing that requisition legislation serves pressing social needs and merits a benevolent interpretation; the Court should, where possible, uphold substance over form.
  2. Competence under the Government of India Act, 1935: The Court noted that in an earlier appeal counsel conceded that the Legislature which passed Act XXXIII[33] of 1948 had competence when it passed the Act in April 1948, and this Court had earlier held that the Act was not void. The Court explained concessions at the bar are binding; the learned Judge below nevertheless re‑argued competence and concluded the Act was ultra vires — a conclusion this Court re‑examined.
  3. Distinction between requisition and acquisition: The Court relied on Tan Bug Taim (Bhagwati, J.) and on the legislative response (notification under S. 104, Government of India Act empowering Provincial Legislatures to legislate on requisition) to conclude that requisition creates temporary rights of use/possession and does not transfer title. The Court treated the legislative history as decisive evidence that requisition is not the same as compulsory acquisition.
  4. Reliance on the acquisition/taking possession distinction: The Court invoked Dwarkadas Shriniwas v. Sholapur Mills and Charanjit Lal to confirm the correct test: acquisition implies transfer of ownership/title, whereas taking possession does not. The opinion characterized Mukherjea, J.'s comments in Charanjit Lal as obiter and not overruling Bhagwati, J.
  5. Consideration of Australian authority (Dalziel): The Court examined that case and observed differences in context and legislative history; the Court held the Australian majority did not determine the issue in the Indian statutory context and therefore did not displace the Indian line that treated requisition as distinct from acquisition.
  6. Effect of temporary statute duration and General Clauses Act (S.7): The Court considered whether requisition orders survive expiry of the temporary Act. It held that Act XXXIII[33] of 1948 was a temporary Act (subject to extension) and that S.7 of the Bombay General Clauses Act only saves rights/actions done under a repealed Act but does not authorize continuation of powers or orders after the Act expires. The Court concluded requisition powers were limited by the Act's duration (at most to 31‑3‑1952 if extended).
  7. Validity and effect of Act II[2] of 1950 (extension and amendments): The Court held that the Legislature's enactment extending the temporary Act did not amount to improper delegating of legislative power; rather the Legislature was simply exercising its own power to extend the Act and (in effect) taking over what the executive could have done by notification. Authorities (The Empress v. Burah; Hodge) were invoked to show such conditional or enabling arrangements do not efface the legislature's power and the Legislature may itself exercise the extension.
  8. Character of extension as not creating new law: The Court relied on authorities (including United States v. Powers) and standard interpretive authorities to state that extending the duration of a temporary Act does not create a new law but gives the original Act continuous life; hence S.2 of Act II[2] of 1950 simply continued Act XXXIII until 31‑3‑1952.
  9. "Existing law" v. "law in force" and Art. 31(5)(a): The Court examined the constitutional definitions and arguments by Mr. Palkhivala on whether the potential extension of the 1948 Act was saved by Art. 31(5)(a). After reviewing historical antecedents (Government of India Act provisions and subsequent explanatory statutes), marginal notes and prior authorities, the Court concluded there is no meaningful difference in the Constitution between the expressions "existing law" and "law in force" for the purposes at issue, and thus the provisions enabling extension were part of the "existing law" saved by Art. 31(5)(a).
  10. Competence of the State Legislature under the Constitution: The Court analyzed Entry 36 (List II) and Entry 33 (List I) and Entry 42 (List III) and held that State Legislatures can legislate on "acquisition or requisitioning of property, except for the purposes of the Union." The Court rejected the lower judge's construction that Entry 36 imported a public‑purpose limitation into the competence provision; it distinguished jurisdictional competence from possible contravention of fundamental rights and concluded the State Legislature was competent to enact Act II[2] of 1950, subject to any challenge under fundamental rights provisions.
  11. Presumption of legislative competence and construction of "any purpose": The Court invoked the presumption that a legislature does not intend to exceed its competence and applied that to construe "any purpose" in Act XXXIII[33] of 1948 as meaning "any purpose other than purposes of the Union" when enacted by the State Legislature or extended by Act II[2] of 1950.
  12. Effect of Act XXXIX[39] of 1950 (retrospective correction): The Court noted Act XXXIX substituted "the purpose of the State or any other public purpose" for "any purpose" and provided retrospective effect from 26‑1‑1950. The Court held that the Legislature had thereby cured the potential unconstitutionality and that the present law on the statute book was not void; the Court accepted the proposition (supported by authorities) that a statute partially unconstitutional may be corrected by subsequent legislation and that courts must take notice of remedial legislation when deciding present validity.
  13. Validity of the requisition order dated 29‑5‑1950: The Court found that the order failed on its face to state the public purpose and relied on its prior decision in The State Of Bombay v. Mohanlal Kapur (53 Bom. L.R 669) to hold a requisition order must state the purpose. Because s.6 of Act XXXIX[39] deems orders made on or after 26‑1‑1950 to have been made under the Act as amended, the order of 29‑5‑1950 must be treated as having been made under the amended statute and therefore is bad for failing to state the public purpose.
  14. Remedy, costs and possession: The Court dismissed the State's appeal on merits but recognized that the petitioner's amendment below had invited consideration of constitutional questions; accordingly the Court made nuanced orders on costs — no order as to costs of the appeal, the petitioner to pay three‑quarters of the costs of the petition hearing in the Court below, and directed that the State hand over possession of the premises within seven days. Cross‑objections otherwise dismissed.

Holding and Implications

Holding (core rulings emphasized):

APPEAL DISMISSED. The Court held:

  • Act XXXIII[33] of 1948 (Bombay Land Requisition Act, 1948) was intra vires the Provincial Legislature (i.e., competent enactment).
  • Act II[2] of 1950 (which extended Act XXXIII[33] of 1948) was within the legislative competence of the State Legislature when considered under the Constitution, and the phrase "any purpose" is to be construed as "any purpose other than the purposes of the Union" insofar as it is within State competence.
  • Act XXXIX[39] of 1950 (which substituted words limiting requisition to "the purpose of the State or any other public purpose" and made that substitution retrospective to 26‑1‑1950) cured any unconstitutionality that may have affected the earlier enactments; accordingly the law as amended is not void today.
  • The requisition order dated 29‑5‑1950 was bad on its face because it failed to state the public purpose for which the premises were requisitioned; it must be set aside.
  • The petitioner is entitled to possession of the premises; the State must deliver possession within seven days.

Implications (direct effects on parties and precedent status):

  • The immediate practical consequence is that the petitioner's challenge to the requisition order succeeds as to the order dated 29‑5‑1950, and the petitioner is entitled to possession; the State's enforcement of that order was restrained below and the appellant's appeal is dismissed.
  • On the statutory and constitutional issues, the Court upheld the validity (intra vires character) of the challenged Acts (to the extent and in the manner explained above). The Court took account of retrospective corrective legislation (Act XXXIX[39] of 1950) and declined to declare the statute void today when remedial legislation had been enacted.
  • No novel, sweeping rule was announced beyond the Court's application of established interpretive principles, statutory history, and the rule that remedial legislative cures must be taken into account; the opinion resolves the contest in this matter but does not purport to establish a new general precedent beyond the reasoning set out.

Disposition and Orders

  • Result: Appeal dismissed; cross‑objection partly allowed (possession to be handed over to petitioner).
  • Costs: No order as to costs of the appeal; with respect to the petition in the Court below the petitioner must pay three‑fourths of the costs of the hearing of the petition (costs to be taxed on the Long Cause scale); other costs and cross‑objections disposed as recorded.
  • Relief: State to hand over possession of the premises to the petitioner within seven days from the date of the judgment.

This summary reflects only the content and substance expressly stated in the provided opinion. No information has been added beyond the text of the opinion.

    The State Of Bombay v. Heman Santlal Alreja .

    Chagla, C.J:— This appeal arises out of a petition challenging an order of requisition made under S. 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. The State Of Bombay….*, 53 Bom. L.R 355), 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 1948. 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(2), 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 S. 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 S. 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. He 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 S. 104, Government of India Act, by which the Governor-General empowered all Provincial Legislatures to enact laws with respect to the requisitioning of land, being a matter not enumerated in any of the Lists in Sch. 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 S. 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 1948 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 21-10-1947, 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 S. 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 ??? for public purpose.

    5. Further, in Dwarkadas Shriniwas v. Sholapur Mills, 53 Bom. L.R 218, a division bench of this Court was considering the distinction between taking possession and acquisition under Art. 31(2) of the Constitution, and, in my judgment, at p. 226 I pointed out that the distinction between acquisition and possession is that whereas in the case of the former there is a transfer of ownership and transfer of title, in the latter case there is no transfer of ownership or title. If this be the correct test, then it is clear that when Government take possession of property under the powers given to it under act xxxiii[33] of 1948, they are requisitioning property and not acquiring it, because it is not disputed that there is no transfer of ownership or title when possession is handed over to Government, the ownership and title continuing to remain vested in the owner of the property. The view we took as to the meaning of acquisition has received support from a judgment of the Supreme Court in Charanjit Lal v. Union of India, 53 Bom. L.R 499 (S.C). Mukherjea, J. at p. 515 says:

    “In the context in which the word ‘acquisition’ appears in Art. 31(2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title, …”

    6. The learned Judge has come to the conclusion that he has on the ground that Bhagwati, J.'s judgment in Tan Bug Taim v. Collector of Bombay, 47 Bom. L.R 1010 was based upon the minority judgment in Minister of State for the Army v. Dalziel, (1944) 68 C.L.R 261 and according to Tendolkar, J. as the Supreme Court has now held that the minority judgment is no longer good law but the majority judgment correctly lays down the law, the judgment of Bhagwati, J. must be considered to be overruled. Turning to this Australian case, the facts on which the judgment of the High Court was based were that one Arthur Dalziel was the occupier as a weekly tenant of certain vacant land and this land was taken possession of by the Commonwealth of Australia. The taking possession of was held to be for an indefinite period, and the question that arose was whether on these facts the taking possession constituted an acquisition of property within the meaning of the placitum in the Australian Constitution (S. 51(XXXI)) which empowered the Parliament to make laws with respect to the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws. The majority of the Judges took the view that the taking possession of property for an indefinite period constituted acquisition. Rich, J. in one of the majority judgments at p. 285 states:

    “The language used (of the placitum) is perfectly general. It says the acquisition of property. It is not restricted to acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any property.”

    7. The Chief Justice who delivered the minority judgment took the view that the only question to consider was whether the rights acquired by the State were proprietary rights. According to him the Commonwealth was merely in the position of a licensee and not an owner and therefore he came to the conclusion that there was no acquisition within the meaning of the placitum. It was this minority judgment which Bhagwati, J. accepted as laying down the correct law. One thing must be borne in mind that the High Court of Australia was not considering what we have to consider here, viz. the distinction between acquisition and requisition. Nor did the Court in Australia have a clear legislative history before it to help to construe the expression “acquisition” used in the Constitution.

    8. Now, turning to the Supreme Court judgment, Mukherjea, J. was considering whether the contention put forward by the Attorney General in Charanjit Lal's case (53 Bom. L.R 499) that the word “property” as used in Art. 31 of the Constitution connoted the entire property, that is to say, the totality of the rights which the ownership of the object connotes, and the learned Judge states at p. 516 that he found it difficult to accept that contention. He says:

    “The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietary right.”

    9. It was in this connection that he referred to a passage from the judgment of Rich, J. in Dalziel's case (1944-68 C.L.R 261). Then the learned Judge goes on to say that it was not necessary to pursue the matter any further as in his opinion there had been no possession of the rights of the shareholder in that case. Therefore, in the first place, the observation of Mukherjea, J. is an obiter and he definitely refused to decide the question; in the second place the obiter is with regard to the question of taking possession and not acquisition; and, finally, the obiter merely lays down that in order to constitute taking possession the totality of rights need not be taken away: but if a person is substantially deprived of his rights, then it would constitute taking possession within the meaning of Art. 31. It is difficult to see how from this obiter it is possible to infer that Mukherjea, J. overruled the judgment of Bhagawati, J. or that he accepted the view of the majority in the Australian case that acquisition does not necessarily imply a transfer of title or ownership.

    10. Mr. Jhaveri has asked us not to interpret S. 299(2) in the light of Art. 31(2). He rightly points out that Art. 31(2) deals both with acquisition and taking possession and the Constitution has provided safeguards in favour of the citizen both when the State acquires property or takes possession of property. Therefore, according to him a distinction may legitimately be drawn between the connotation of the expression “acquisition” and the connotation of the expression “taking possession,” but he contends that inasmuch as S. 299(2) of the Government of India Act merely refers to compulsory acquisition, that expression should be construed as including taking possession as well. There is force in this argument and we would probably have been inclined to accept it, but for the legislative history to which we have drawn attention and which compels us to come to the conclusion that we have. Our attention is also drawn to S. 299(5) which provides that “land” as used in this section includes immoveable property of every kind and any rights in or over such property. It is therefore argued that requisitioning of land must result in acquisition of some right in or over property, and therefore by result of this extended meaning of the expression “land,” compulsory acquisition for public purposes of any land must be construed in S. 299(2) as including requisitioning of land. This argument is not tenable because all that the extended meaning of “land” denotes is that ownership may be acquired not only of land but of any right in or over land. Therefore, if we are right in our view that acquisition implies transfer of ownership or title, the definition of “land” contained in S. 299(5) presents no difficulty.

    11. Even assuming that requisitioning for an indefinite duration constitutes acquisition within the meaning of S. 299(2), we have to consider the question whether in this case an order of requisition made by Government under the Act is for an indefinite duration or whether the duration of the order is limited by the statute itself. Now, it is well settled that when a temporary Act lapses, the rules and orders made thereunder expire, and act xxxiii[33] of 1948 is a temporary Act which was liable to expire on 31-3-1950 unless it was extended for a further period not exceeding two years. Therefore, in any case the outside limit of the duration of the Act was fixed at 31-3-1952. The learned Judge has taken the view that by reason of the fact that under S. 3(2) of the Act S. 7, Bombay General Clauses Act, 1904, has been made applicable upon the expiry of the Act, orders of requisition made under the Act would continue in force for an indefinite period after the Act lapses by efflux of time. In our opinion, the view taken by the learned Judge, with respect, of the effect of S. 7, Bombay General Clauses Act is not a correct one. Section 7 merely saves anything duly done or suffered under a repealed Act or any right, privilege, obligation or liability acquired, accrued or incurred under such an Act. Any action taken or any right acquired or liability incurred under any requisitioning order made under act xxxiii[33] of 1948 is saved notwithstanding the fact that the Act may cease to be operative. But S. 7 does not authorise the Government to continue in force orders of requisitioning made under the Act after the expiry of the Act. The power of Government to requisition property springs from the provisions of the Act, and if the Act lapses, then those powers must also cease to exist. It would have been open to the Legislature to continue in force the orders of requisitioning made under the Act after the expiry of the Act, but the Legislature has not chosen to do so, and S. 7, Bombay General Clauses Act, cannot be construed to mean that by reason of its provisions the orders of requisitioning passed under the Act do not cease to be operative and continue in operation for an indefinite period. It is instructive to consider the language of S. 20 which repeals the Bombay Land Requisition Ordinance of 1947 which preceded act xxxiii[33] of 1948. By sub-s (2)(ii) any order made under that Ordinance requisitioning any land shall be deemed to be made under act xxxiii[33] of 1948 and under sub-cl. (iii) any land requisitioned or continued to be subject to requisition under the Ordinance shall be deemed to be requisitioned or continued to be subject to requisition under the Act. Therefore, we have a clear provision here of continuing in force orders of requisition made under the Ordinance which, but for this provision, would have expired on the repeal of the Ordinance.

    12. In Krishnan v. The State of Madras, (1951) 14 S.C.J 453, the Supreme Court was considering the Preventive Detention (Amendment) Act of 1951 which amended the Preventive Detention Act of 1950 and which continued the operation of the old Act up to 31-3-1952. An argument was advanced before the Supreme Court that by S. 11(1) of the amending Act discretionary power was given to the appropriate Government to continue the detention for such period as it thought fit and thereby to authorise preventive detention for an indefinite period, which was contrary to the provisions of Art. 22(4) of the Constitution. Sastri, J. dealt with this argument by saying (p. 451):

    “…. the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only subject to that over-all limit.”

    13. It should be noted that the act by s. 1(3) provided that it shall hive to cease to have effect on 1-3-1952 save as respects things done or omitted to be done before that date. Therefore, we had a provision in that Act for saving what had already been done and yet that was not considered sufficient to save preventive detention orders made under the Act after the expiry of the Act. Mahajan also dealt with the operation of temporary statutes. The learned Judge says (p. 463):

    “Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them.”

    14. The learned Judge below has considered an analogous legislation with regard to the requisitioning of land under the defence of india act and he has pointed out that there express provision was made that all requisitioned land shall continue to be subject to be requisitioned until the expiry of the Ordinance or the Act as the case may be, and the learned Judge draws the inference that as such words are omitted from act xxxiii[33] of 1948, therefore the Legislature did not intend the requisitioning orders made under the Act to cease to have effect after the expiry of the Act. With respect to the learned Judge, the mere omission of these words cannot possibly affect the true interpretation of S. 7, General Clauses Act. Those words may have been inserted for greater caution, and the absence of those words cannot lead one to the conclusion that the requisitioning orders made under the Act would continue to be in force after the Act had expired.

    15. Therefore, in our opinion, the power of requisitioning given to Government under the Act was not for an indefinite period; the power was restricted and circumscribed by the duration of the Act. We, therefore, hold that act xxxiii[33] of 1948 was intra vires of the Provincial Legislature.

    16. We have next to consider the validity of Act [II] of 1950. That act amended act xxxiii[33] of 1948 by extending the duration of act xxxiii[33] of 1948 from 31-3-1950 to 31-3-1952. Then by other sections it also amended certain substantive provisions of Act XXXIII[33] of 1948. The most important amendment was that it enabled the Government to create a statutory tenancy between the person to whom requisitioned premises had been allotted and the landlord of the premises. It is necessary to bear in mind that in act xxxiii[33] of 1948 itself there was a provision that the Provincial Government may by notification in the Official Gazette direct that the Act shall remain in force for a further period not Exceeding two years. Therefore, the position under act xxxiii[33] of 1948 was that the Legislature had passed a temporary Act, the duration of which was fixed up to 31-3-1950. It had also passed conditional legislation extending the duration of the Act for a further period of two years on the condition that the Provincial Government should issue a notification to that effect. The law has now been finally settled by the Supreme Court that a power given by the Legislature to the Provincial Government to extend the duration of an Act does not constitute delegated legislation. The Legislature has already applied its mind to the question, has decided that the Act may be extended for a further period of two years, but instead of passing effective legislation to that effect it has left it to some outside authority to decide whether the extension should be given effect to or not. The Legislature has in no way effaced itself or abrogated its functions. Conditional legislation of this character is within the legitimate powers of a sovereign Legislature. It is also well settled that if pursuant to the power conferred upon it by S. 3 of Act XXXIII[33] of 1948 the Provincial Government had issued a notification extending the Act for a further period of two years, the efficacy of such notification could not have been due to any independent power vested in the Provincial Government, but would have been due to the Legislature itself which had provided for the issue of such a notification. In The Empress v. Burah, 5 Ind. App. 178 (P.C) power was given to the Lieutenant-Governor under Act XXII[22] of 1869 to issue various notifications, and dealing with this power their Lordships of the Privy Council at p. 195 say:

    “Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that or the Governor General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (XXII[22] of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute.”

    17. It was also pointed out by the Privy Council in Hodge v. The Queen, (1883) 9 A.C 117 (p. 132):

    “… It was argued as the Bar that a Legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands.”

    18. Therefore, when the Legislature by act ii[2] of 1950 extended the act for two years, it was not passing any new legislation, but it was doing exactly what the Provincial Government by notification could have done under act xxxiii[33] of 1948. To use the language of the Privy Council, it destroyed the agency which it had created and took the matter directly into its own hands. It has been argued that there is no warrant for assuming that when the Legislature passed act ii[2] of 1950 it was merely exercising the power delegated to the Provincial Government and was not engaging upon a fresh and independent legislative activity. In order to decide this contention, it is necessary to look at the background to act ii[2] of 1950. That Act came into force on 28-8-1950. At that date act xxxiii[33] of 1948 was still in force and the Provincial Government had still the power to issue a notification under S. 3. But just prior to that date, on 22-2-1950, a judgment had been delivered by Bhagwati, J. which was confirmed by a division bench in Narottamdas Jethabhai v. Phillips, 52 Bom. L.R 571 holding that the power conferred upon the Provincial Government under the City Civil Court Act to increase the jurisdiction of the City Civil Court from Rs. 10,000 to Rs. 25,000 constituted delegated legislation and was therefore bad. This decision was based on a judgment of the Federal Court which held that the Legislature could not confer upon the Provincial Government the power to extend the operation of an Act. It may be added that the decision of this Court is no longer good law as it has been reversed by the Supreme Court. It would, therefore, not be surprising if the Provincial Government, in view of the law as it was then understood, should not take the risk of issuing a notification which might be challenged, but should leave it to the Legislature to take the power directly into its own hands which it had conferred upon Government. But it is pointed out that the Legislature did not merely extend the duration of Act XXXIII[33] of 1948 by Act II[2] of 1950; it also passed substantive legislation; and therefore it is pointed out that it would be a mistake to think that the Legislature was merely functioning to give effect to the power it had conferred upon the Provincial Government.

    19. Now, in this appeal we are strictly not concerned with the other provisions of Act II[2] of 1950. In our opinion, those provisions are clearly severable from S. 2 with which we are concerned. There can be hardly any doubt as to the severability of the other provisions of Act II[2] of 1950, because Act XXXIII[33] of 1948 could be administered without those provisions till Act II[2] of 1950 was passed. The petitioner in this case is in no way affected by any of the substantive provisions of Act II[2] of 1950. He is only concerned with those provisions of Act XXXIII[33] of 1948 which have been extended by act ii[2] of 1950. Therefore, we do not propose to decide whether the Legislature effectively amended certain provisions of Act XXXIII[33] of 1948 by enacting amendments in act ii[2] of 1950.

    20. The authorities also draw a distinction between the repeal of an old Act and the re-enacting of a new Act and the extension of an old Act. When an Act is passed extending the duration of some law, it cannot be said that some new law was created. The old law already on the statute book continues. Our attention was drawn to an American case which is relevant on the point. In United States v. Powers, (1938) 307 U.S.R 1245, the Connally Act of 22-2-1935, originally provided that it should cease to be in effect on 16-6-1937, but it was extended prior to 16-6-1937 to 30-6-1939, and the Supreme Court of America held that the amended Act authorised a prosecution for violations committed prior to 16-6-1937, under an indictment returned subsequent thereto but prior to 30-6-1939. In the judgment of Douglas, J. it is stated (p. 1248):

    “…. Due to the amendment, the Act has never ceased to be in effect. No new law was created; no old one was repealed. Without hiatus of any kind, the original Act was given extended life.”

    21. It is true that in this case the amending Act did not in any way alter the substantive provisions of the original Act. But, as I said before, we are only considering the effect of act ii[2] of 1950 to the extent that it extends the duration of act xxxiii [33] of 1948. Even temporary statutes which are made perpetual by subsequent Acts become perpetual not from the date of the subsequent Act but ab initio. See Halsbury, Vol. 31, p. 512, Art. 665. And Maxwell on Interpretation of Statutes, Edn. 9, p. 406, states the law thus:

    “If a temporary Act be continued by a subsequent one, or an expired Act be revived by a later one, all infringements of the provisions contained in it are breaches of it rather than of the renewing or reviving statute.”

    22. Therefore, to the extent that the Legislature enacted S. 2 of Act II[2] of 1950, it did not put on the statute book any new legislation. The old law instead of expiring on 31-3-1950, continued till 31-3-1952.

    23. We have already held that act xxxiii[33] of 1948 was an existing law within the meaning of Art. 31(5)(a), and therefore even if such a law offended against Art. 31(2), it did not become void under Art. 31(1). But a very interesting question has been raised in this appeal as to whether the provisions of any existing law referred to in Art. 31(5)(a) are merely the provisions of Act XXXIII[33] of 1948 which keeps the Act in force up to 31-8-1950, or whether they also include the provision which permits of its extension for a further period of two years. “Existing law” is defined in Art. 366(10) as any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation. Therefore, in order that a law should be an “existing law” the only qualification laid down by the Constitution is that it should have been passed before the commencement of the Constitution. Inasmuch as the Provincial Legislature in 1948 not only passed the law fixing its duration till 31-3-1950, but also passed conditional legislation extending its duration up to 31-3-1952, on a plain reading of the definition of “existing law” the provisions of an existing law for the purposes of Art. 31(5)(a) included both the actual operation of act xxxiii[33] of 1948 and its potential operation in the sense that the Act had within itself the potentiality of being extended up to 31-3-1952. If this be the true position, then Act XXXIII[33] of 1948 as amended by Act II[2] of 1950 to the extent that it merely extended its duration up to 31-3-1952, was an existing law. If it was an existing law even though it contravened the provisions of Art. 31(2), inasmuch as the power of requisitioning vested in Government was not restricted to public purposes, even so it would not be void as the contravention is permissible under Art. 31(5)(a). The question may be looked at from another point of view. Article 13(2) prohibits the State, which includes the Legislature, from making any law which takes away or abridges the rights conferred by Part III and any law made in contravention of Art. 13(2) shall, to the extent of the contravention, be void. Therefore, if the Legislature was making any law when it enacted act ii[2] of 1950 which abridged or curtailed the fundamental right conferred upon the citizen under Art. 31(2), then the law would be void to the extent of such contravention. But if we are right in the view that we have taken that the Provincial Legislature had already made a law empowering Government to requisition property for any purpose and the Legislature had already decided that the duration of that law should be not merely up to 31-3-1950 but conditionally up to 31-3-1952, then the Legislature when it passed act ii[2] of 1950 was not making any law contrary to the provisions of Art. 31(2). Such a law had already been made, it was already on the statute book, and it had been saved by Art. 31(5)(a). Therefore, in our opinion, S. 2 of Act II[2] of 1950 falls to be considered not with reference to Art. 13(2) but with reference to Art. 13(1).

    24. A very interesting and able argument has been advanced by Mr. Palkhivala that the Constitution makes a distinction between “existing law” and “law in force.” It is pointed out that there is an exhaustive definition of “existing law” given in Art. 366(10) and “law in force” is not exhaustively defined, but there is an inclusive definition both in Art. 13 and in Art. 372. It is suggested that the definition of “law in force” is wider than “existing law”. It is said that whereas “existing law” means actual law in operation, “law in force” includes not only law actually in force but also law potentially in force in the sense of the law being capable of being extended by means of a notification or other method. According to Mr. Palkhivala the scheme of the Constitution is this. Article 372(1) continues in force all the laws in force in the territory of India immediately before the commencement of the Constitution. This includes laws actually in operation and also by reason of Explanation I laws which may not be in operation at the date of commencement of the Constitution or laws applied only to particular parts and not extended to the whole country. These laws in force are to continue subject to the provisions of the Constitution and one of the provisions in the Constitution is Art. 13(1). Article 13(1) makes void all laws actually in operation and also all laws potentially in operation to the extent that they are inconsistent with fundamental rights. When we turn to Art. 31(5)(a) what is saved is not “laws in force” but “existing laws.” Therefore, only laws in actual operation and not potentially in operation are saved. Therefore, when we have a law which is actually in operation which contains provisions for its potential extension, the actual law is saved under Art. 31(5)(a), but to the extent that it may be extended in future it may become void under Art. 13(1) if it contravenes any of the fundamental rights. This argument is advanced for the contention that as far as act xxxiii[33] of 1948 was concerned what was saved by Art. 31(5)(a) was the actual operation of law till 31-3-1950, but to the extent that it was potentially capable of being extended for two years beyond 31-3-1950, it was not saved by Art. 31(5)(a). According to Mr. Palkhivala, the Constituent Assembly drew a dead line at laws actually in operation and refused to save them beyond that line if they contravened any of the fundamental rights. It is pointed out that the same expression “existing law” is used in sub-cls. (2), (3), (4), (5) and (6) of Art. 19. There also according to Mr. Palkhivala the Constituent Assembly permitted restrictions upon the rights conferred under Art. 19(1)(a) to (g) only to the extent of saving laws actually in operation.

    25. The argument is very attractive and receives considerable support from two different expressions used in the Constitution. It is perfectly true that the ordinary and normal canon of construction requires that when we find in a statute or in a constitution two different expressions used, as far as possible two different meanings must be given to these expressions, because it must be assumed that the Legislature or the Constituent Assembly did not use two different expressions without intending to convey two different meanings. But instances are not unknown where two different expressions have been used to convey the same meaning. Now, if one were to give a plain natural construction to these two expressions, it is clear that “existing law” is a term of wider concept than “law in force” and not otherwise as contended by Mr. Palkhivala. “Existirg law” would include all laws whether actually in force or potentially in operation. The only qualification laid down by the Constitutions, as I have pointed out before, is that these laws must have been passed before the Constitution came into force. “Law in force” has a narrower and more restricted connotation. It seems to indicate laws actually in force, not laws whose operation is suspended or which have not been extended to certain territories. Because its connotation was narrow and restricted, the Constitution had to give to it an extended meaning both in Art. 13 and in Art. 372 by including in the expression “law in force” any law or any part thereof which may not be in operation at the date of the commencement of the Constitution at all or in particular areas. I must frankly confess I am at a loss to understand why instead of giving this extended meaning by an explanation the Constitution did not use the same expression “existing law” in Art. 13 and in Art. 372. The ways of draftsmen like those of Providence are very often inscrutable. But Mr. Seervai has pointed out an explanation which according to him does not make the ways of draftmen so inscrutable as we think they are. He has drawn our attention to the Government of India Act, 1935, which was the constitutional predecessor of our Constitution and he points out that S. 292, Government of India Act in terms corresponded to Art. 372. Section 293, Government of India Act dealt with adaptation of laws which is dealt with in our Constitution by Art. 372(2), and just as in Art. 372 the expression used in Ss. 292 and 293 is “law in force” and not “existing law,” the expression “existing law” is also to be found in the Government of India Act, but the actual expression used is not “existing law” but “existing Indian law”, and “existing Indian law” is also defined similarly to its definition in the Constitution as any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of Part III of this Act by any Legislature, authority or person in any territories for the time being comprised in British India being a Legislature, authority or person having power to make such a law, ordinance, order, bye law, rule or regulation. Neither S. 292 nor S. 293, Government of India Act contained the explanation which we find in Art. 372. Parliament passed a statute on 18th February 1937, 1 Geo. VI, c. 9, for the purpose of explaining and amending Ss. 292 and 293, Government of India Act, and S. 1(1)(i) of the Act provided that

    “a law passed or made before the said date by a Legislature or other competent Authority in British India, and not previously repealed, is, for the removal of doubts, hereby declared to be a law in force immediately before that date notwithstanding that it, or parts of it, may not then be in operation, either at all or in particular areas.”

    26. Therefore, by this Act Parliament incorporated in Ss. 292 and 293 the explanation that we now find in the Constitution in Art. 372. It is significant to note that this Act was passed for removal of doubts and for explaining the expression used in Ss. 292 and 293. Therefore, it is clear that Parliament felt that it was possible to contend that there was difference between the expression “law in force” and “existing law,” and “law in force” might not include laws not in operation or not extended to all areas. What the Constitution has now done is, it has reproduced in Art. 372 the language of Ss. 292 and 293 and has added by way of an explanation what was contained in 1 Geo. VI, c. 9. But this explanation does not remove all difficulties, because Mr. Palkhivala has pointed out that whereas S. 299(4), Government of India Act, provides that nothing in this section shall affect the provisions of any law in force at the date of the passing of this Act, when we turn to Art. 31(5)(a) the expression used is “existing law” and not “law in force.” There is one indication which we might resort to, although with some hesitation, and that is the marginal note both to the Government of India Act and the Constitution. It is clear that marginal notes to sections in statutes may not be looked at for the purpose of construing the section. But as Maxwell points out at p. 45, the rule regarding the rejection of marginal notes for the purposes of interpretation is now of imperfect obligation, and the learned author cites with approval the language of Collins M.R in Bushell v. Hammond, (1904) 73 L.J K.B 1005 at p. 1007, “the side-note, although it forms no part of the section, is of some assistance, inasmuch as it shows the drift of the section.”

    27. Reference has been made to the observations of their Lordships of the Privy Council in Balraj Kunwar v. Rae Jagatpal Singh, 31 Ind. App. 132 (P.C) where they say (p. 142):

    “It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament.”

    28. In this particular case, their Lordships were construing Act I of 1869 and the construction which commended itself to their Lordships gave a meaning to every part of the sections under consideration. It is perfectly true that if the sections by themselves make the meaning of the words used by the Legislature plain and explicit, marginal notes cannot be invoked for the purpose of adding to, subtracting or altering the words used by the Legislature. But when the words are ambiguous, there should be no objection to looking at the marginal note in order to understand, to use she language of Collins M.R, the drift of the section. It should also be borne in mind that at one time marginal notes did not appear in the statute by authority of Parliament and therefore could be said that Parliament had not enacted the marginal note. This is no longer true, and every part of the statute including marginal notes and punctuation appears in the statute by authority of Parliament. As pointed out by Maxwell, with respect, it seems that the opinion expressed by the Privy Council in 1901 has undergone some change. When we therefore turn to the marginal note to Art. 372 it is significant to note that the note says, “Continuance in force of existing laws and their adaptation.” Therefore, if the marginal note is any indication at all, it does indicate that the Constituent Assembly did not intend to make any difference or distinction between “laws in force” and “existing laws.” The position is the same with regard to the Government of India Act. The marginal note to S. 292 is, “Existing law of India to continue in force”, and the marginal note to S. 293 is, “Adaptation of existing Indian laws.” Then there is a further indication that Mr. Palkhivala's contention that the Constitution-making body intended to draw a dead line at laws actually in operation is not tenable. If one turns to Art. 19, Sub-cls. (2), (3), (4), (5) and (6), where the expression “existing law” is used, we find that the restriction on fundamental right is not only with regard to the saving of existing law, but also with regard to any future law that the State might make. Therefore, it would not be true as far as Art. 19 is concerned that the intention of the Constituent Assembly was to save only laws actually in operation and to declare void laws only potentially in force and laws to be made in future. We also find that high judicial authority has also taken the same view of the interpretation of the two expressions “law in force” and “existing law”. In The United Provinces v. Mt. Atiqa Begum, (1940) 2 F.C.R 110, an Act which was retrospective in its effect was challenged on the ground that it contravened S. 292 Government of India Act, which directed all laws which were in force to continue in force until they were repealed or amended, and Sir Maurice Gwyer, C.J says (p. 131):

    “The purpose of S. 292 was clearly to negative the possibility of any existing Indian law being held to be no longer in force by reason of the repeal of the law which authorised its enactment; and it is a safeguard usually inserted by draftsmen in similar circumstances.”

    29. Therefore the learned Chief Justice looked upon S. 292 as an enactment which kept in force existing law, and the learned Chief Justice points out other constitutional enactments where similar provision is inserted. One learned Judge of our own Supreme Court has used “existing law” and “law in force” as interchangeable terms. In Keshavan Madhava Menon v. State Of Bombay., 1951-2 S.C.R 228, Mr. Justice Das says (p. 234):

    “… What Art. 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void.”

    30. Now, it may be remembered that the expression used in Art. 13(1) is “laws in force” and not “existing laws” and yet the learned Judge reads that expression as meaning “existing laws”. Frankly the point is not free from difficulty or doubt, but on the whole we have come to the conclusion that in the Constitution the expressions “existing laws” and “laws in force” have been used without any distinction or difference.

    31. The next question is whether the Legislature of the State of Bombay was competent to enact act ii[2] of 1950. As we have pointed out, no difficulty arises with regard to the competency of the Legislature that passed act xxxiii[33] of 1948. But the competence of the State Legislature was altered by the Constitution. Whereas the Legislature in 1948 legislated with regard to a subject matter which was wide and unlimited viz. requisitioning of land, the position had materially altered when powers were conferred upon the State Legislature under the Constitution of India. The Union Parliament is given power to legislate with regard to acquisition or requisitioning of property for the purposes of the Union. This is Entry 33 in List I. In List II which is the State List, Entry 36 is in the following terms:

    “Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of Entry 42 of List III,”

    and when we turn to Entry 42 in the Concurrent List it is to the following effect:

    “Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given.”

    32. Entry 33 in List I presents no difficulty. Power is given to the Union Parliament to acquire or requisition property only for the purposes of the Union. But the construction of Entry 36 in the State List presents considerable difficulty. It is difficult to see why acquisition or requisitioning of property is qualified by “except for the purposes of the Union” because under Art. 246(3) the power of the State Legislature has been made subject to the power conferred upon the Union Legislature under Lift I. It is equally difficult to understand why the power of the Provincial Legislature is made further subject to the provisions of Entry 42 of List III, because the power of the State Legislature again has been made Subject to the powers conferred under the Concurrent List. The learned Judge below read the expression “subject to the provisions of Entry 42 of List III” as importing into it the limitation upon the power of the State Legislature to acquire or requisition property only for the purposes of the State or for any other public purpose. With respect, we are unable to agree with that construction. The only limitation placed upon the State Legislature is that it cannot legislate with regard to acquisition or requisitioning of property for purposes which are for the purposes of the Union, and the other limitation is that the Union Parliament may legislate with regard to compensation and the form and the manner in which such compensation is to be given, notwithstanding the fact that laws with regard to acquisition or requisitioning for the purposes other than the purposes of the Union may be enacted by the State Legislature. If “subject to the provisions of Entry 42 in List III” were intended to import the limitation with regard to public purposes or purposes of the State, it is difficult to see why a similar limitation was not put in Entry 33 of List I. The interpretation placed by the learned Judge, with very great respect to him, is based upon the confusion between competence and contravention of fundamental rights. The State Legislature may be competent to legislate for any purpose other than the purpose of the Union, and yet if it so legislated, it may contravene the provisions of Art. 31(2) in which case the legislation would be void to the extent of the contravention. But jurisdiction is one thing and the erroneous exercise of that jurisdiction is entirely a different thing. A full bench of the Allahabad High Court in Suryapalsingh v. U.P Govt. A.I.R (38) 1951 ALL. 674 (F.B) has taken the same view of the construction of Entry 36 in List II and has held that the legislative competence of the State Legislature is not controlled by Entry 42 in List III. In our opinion, therefore, the State Legislature under the Constitution is competent to legislate for any purpose other than the purposes of the Union.

    33. It is argued that even, so Act II of 1950 was ultra vires of the State Legislature because it dealt with requisitioning for any purpose and “any purpose” would include purposes of the Union. There is no doubt that if the State Legislature by Act II of 1950 conferred power upon the Government to requisition land for any purpose without any limitation or qualification, then the Act would be ultra vires of the Legislature. But there is a very important principle which must be borne in mind in construing a statute. It must always be presumed that a Legislature knows the limits of its competence and that it is acting within the limits set up by the Constitution and not outside those limits. If possible a construction should be placed upon a statute which would put it within the limits of the competence of the Legislature rather than outside those limits. This principle was clearly enunciated by Sir Maurice Gwyer in In re The Hindu Women's Rights to Property Act, 1937, (1941) 3 F.C.R 12. The question that was agitated before the Court in that case was whether the Hindu Womens Rights to Property Act, 1937, was void inasmuch as it affected succession to agricultural land. This Act was passed by the Legislative Assembly of the Indian Legislature on 4th February 1937. This was before Part III of the Government of India Act came into force. At that time the powers of the Indian Legislature were plenary. It was passed by the Council of State on 6th April 1937, after Part III came into operation and received the Governor. General's assent on 14th April 1937. After Part III came into force, which was on 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of the Seventh Schedule to the Government of India Act. Laws with regard to the devolution of agricultural land could be only enacted by Provincial Legislatures and the Central Legislature had no competence to legislate with regard to agricultural land. The word used in the Hindu Women's Rights to Property Act was “property”, and it was contended that the word was wide enough to cover both agricultural and non-agricultural land, and therefore the argument was put forward that the Central Legislature was trespassing upon the field reserved for the Provincial Legislature and therefore the Act was void. Sir Maurice Gwyer says (p. 26):

    “If that word (viz. property) necessarily and inevitably comprises all forms of property, including agricultural land then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word ‘property’ as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say property other than agricultural land.”

    34. He then goes on to say (p. 27): “There is a general presumption that the Legislature does not intend to exceed its jurisdiction,” and he refers to various cases particularly to the well known case of Macleod v. Attorney General for New South Wales, (1891) A.C 455. In that case the Legislature of the New South Wales had enacted a law providing that whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years. The question that arose was whether the Act had extra-territorial effect, and Lord Halsbury in his judgment stated (p. 457):

    “……Their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony…….”

    35. Further on the learned Law Lord says (p. 459):

    “………Their Lordships are far from suggesting that the Legislature of the Colony did mean to give to themselves so wide a jurisdiction. The more reasonable theory to adopt is that the language was used, subject to the well-known and well-considered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the Colony.”

    36. Therefore, in this particular case if the Bombay Legislature was legislating for requisitioning of land for any purpose, it was using an expression of wide and general import and the presumption would be that it was using that expression only with reference to those purposes which it was within its competence to legislate about. It should be noted that this is not a question of severability. The Court is not severing “purposes of the Union” from “other purposes.” Severability would imply that the Legislature had legislated both for purposes of the Union and other purposes and then the Court would try and see if the Act was severable, and if so, save that portion of the Act, which was within the competence of the Legislature. But as Sir Maurice Gwyer puts it, this is a question of construction, and if on a true construction we hold that the Legislature was legislating for purposes other than the purposes of the Union, then the legislation would be a competent legislation and no question of severing “purposes of the Union” from “other purposes” would arise. Reliance has been placed upon Romesh Thappar v. State Of Madras, 1950 S.C.R 594. In that case S. 9(1)(a), Madras Maintenance of Public Order Act, 1949 was challenged as being in contravention of Art. 19 of the Constitution. That section empowered the Governor of Madras, if he was satisfied that for the purpose of securing the public safety and the maintenance of public order it was necessary so to do, to prohibit the entry into or circulation sale or distribution in the State of Madras of any newspaper. Under Art. 19(2) it is competent to a Legislature to enact a law in respect of any matter which undermines the security of the State and that is a restriction upon the right given under Art. 19(1)(a) of freedom of speech and expression, and the question that fell to be considered by the Supreme Court was whether a legislation with regard to securing the public safety and the maintenance of public order was a legislation for the security of the State. The Supreme Court held that S. 9(1)(a) authorised imposition of restrictions for a wider purpose, viz., securing public safety and maintenance of public order, than the security of the State permissible under the Constitution, and therefore S. 9(1)(a) was void. The case here therefore was not of the Legislature using an expression of wider import, but a case where the Legislature had used two different expressions and the attempt was to approximate those two expressions to the expression used in the Constitution. Further the Supreme Court was not considering the competence of the Legislature at all. What it was considering was whether the Act offended against the fundamental rights guaranteed to the citizen. It was in this connection that Mr. Justice Sastri made the following observation at p. 603, on which the learned Judge below has relied:

    “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right it is not possible to uphold it even so far as it may be applied within the constitution limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.”

    37. Therefore, it was the test of severability that Mr. Justice Sastri was applying. As we said before, on the view that we take, we are not dealing with a case of severability but with a case where we have to put a particular construction upon the expression used by the Legislature. Reliance was also placed on a judgment of the Federal Court in Rex v. Basudev, 1949 F.C.R 657. In that case the Legislature of the United Provinces passed an enactment authorising the Provincial Government preventively to detain any person who habitually indulged in blackmarket. The Federal Court held that the law was bad as it was ultra vires of the Provincial Legislature. It was pointed out by the Federal Court that the power to make laws with respect to preventive detention which a Provincial Legislature had under Entry 1 of List II, Government of India Act, 1935, was strictly limited by the condition that such detention must be for reasons connected with the maintenance of public order, and the Court held that black marketing was not a reason connected with the maintenance of public order. It is difficult to see how this decision is of any assistance. The Legislature had passed a law unconnected wits public order and it was impossible to bring black-marketing within the ambit of public order. The Legislature had legislated upon an entirely different topic from the one mentioned in Entry 1 of List II. Therefore, in our opinion, it is open to us to take the view that when the Legislature passed Act II of 1950, it was legislating for any purpose other than the purpose of the Union.

    38. We are conscious of the difficulty that in enacting Act II of 1950 the Legislature was extending the operation of Act XXXIII of 1948 which enabled Government to requisition land for any purpose. But in extending the Act from March 31, 1950, to March 31, 1952, the Legislature must be presumed to have extended it within the scope and ambit of its own competence. It would have been open to the Legislature expressly to have stated in act ii of 1950 that the act was being extended till March 31, 1952, but the power to requisition for any purpose would be limited by excluding “purposes of the Union.” It has expressly not stated so. But we must construe the expression “for any purpose” used in Act XXXIII of 1948 when it stood amended by Act II of 1950 as meaning “for any purpose other than the purposes of the Union.”

    39. Therefore, in our opinion, Act II of 1950 was within the legislative competence of the State Legislature. In this view of the matter, it is unnecessary to consider the further contention urged on behalf of the State that Act II of 1950 is saved by reason of the provisions contained in Explanation in to Art. 372 of the Constitution.

    40. Even assuming we are wrong in the view that we have taken as to the constitutionality of Act II of 1950, and assuming Act II of 1950 contravenes Art. 31(2) inasmuch as it does not restrict the power of Government to requisition land for a public purpose, the question arises as to what is the effect of the unconstitutionality of Act II of 1950. In this connection it is important to remember that the Legislature passed act xxxix of 1950 which amended act xxxiii of 1948 by substituting for the words “any purpose” the words “the purpose of the State or any other public purpose,” and by s. 6 of that act it gave a retrospective effect to the Act by providing that the amendments made by this Act shall be deemed to have been and always to have been made with effect from 26-1-1950. Therefore, the Legislature attempted retrospectively to bring act xxxiii[33] of 1948 into conformity with the Constitution by putting act xxxix[39] of 1950 on the statute book. Counsel for the petitioner has given up the contentions taken up in the Court below that act xxxix[39] of 1950 was bad inasmuch as it did not receive the assent of the President and also the contention that the Legislature could not retrospectively amend an unconstitutional Act. It is, however, urged by Mr. Palkhivala that if act ii[2] of 1950 was void, it was void from its inception and therefore it failed to extend act xxxiii[33] of 1948, and when act xxxix[39] of 1950 was passed there was no law regarding acquisition on the statute book which could be amended by that Act.

    41. The American authorities draw a distinction between unconstitutional Acts which are void from their inception and those Acts which become void only when the Court declared them to be unconstitutional. Willis on Constitutional Law at p. 90 says:

    “There is a second class of situations in which the Courts are in conflict as to whether the rule should be the rule of void ab initio, or the rule of void from date of declaration of unconstitutionality. These are cases of creation of moral obligations on the part of the Government, creation of a public office, the civil liability of officers for acts done under unconstitutional statutes, the defence of an officer to an action of mandamus brought to compel him to act under an unconstitutional statute, the curing of the defect of unconstitutionality by statutory amendment, and the curing of the defects of unconstitutionality by change in the Constitution.”

    42. So the case before us would fall in the category of an unconstitutional statute where the defect of unconstitutionality has been cured by statutory amendment. Crawford on Statutory Construction (1940 Edn.) at p. 173 says:

    “But where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all jurisdictions, that the statute may be amended by obliterating the invalid provisions or by correcting those which violate the Constitution.”

    43. In the case of A at XXXIII[33] of 1948 the Act cannot be said to be wholly unconstitutional; it is unconstitutional to the extent that it permits Government to requisition property for a purpose which may not be a public purpose and that unconstitutionality has been corrected by subsequent enactment. It is stated that this Court has taken the view that if an Act is void as contravening the provisions of fundamental rights, it must be deemed to be annulled and the consequences are the same as if it was repealed, and therefore it is urged that we must hold that Act II of 1950, if it is unconstitutional, stood annulled from the moment of its enactment. The authority relied upon is In re Keshav Madhav Menon, 52 Bom. L.R 540. In that case we were construing Art. 13(1) of the Constitution and the question was whether Art. 13(1) had retrospective effect, and at p. 543 in delivering the judgment of the Court I used the following language:

    “But in substance and in its effect there is no difference between an Act which is repealed and an Act which is declared void. In both cases the Act ceases to be operative. The law is annulled.”

    44. But I have pointed out that there is difference between repealing an Act and declaring an Act void. At p. 542 I have pointed out that repeal involves a legislative process whereas declaration of a law to be void does not. I have also pointed out that Art. 395 specifically repeals certain laws, whereas under Art. 13(1) it would be for the Courts of law to determine which laws are inconsistent with the Constitution. This case went before the Supreme Court. The Supreme Court came to the same conclusion as we did but on a different ground, and Das, J. in Keshavan Madhava Menon v. State Of Bombay., (1951) S.C.R 228 at p. 234 states:

    “….it should further be seen that Article 13(1) does not in terms make the existing laws which are inconsistent with fundamental rights void ab initio or for all purposes. On the contrary, it provider that all existing laws, in so far as they are Inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing laws will be permitted to stand in the way of the exercise of any of the fundamental rights.”

    45. Therefore, the position today is that when the petitioner comes before us and asks us to declare act xxxiii[33] of 1948 as void on the ground that it contravenes the fundamental rights of the citizen, we find on the statute book an Act which has cured the unconstitutionality of act xxxiii[33] of 1948. Should we then, notwithstanding what the Legislature has done, still declare act xxxiii[33] of 1948 to be void? In our opinion, we are bound to take notice of what the Legislature has done, and if the law is not void today, we should not declare it void because it offended against the provisions of the Constitution prior to its amendment. We are, therefore, of the opinion that the challenge made to the Act on various grounds fails and that the Act must be held to be valid.

    46. Another and a minor question arises on the facts of this particular case. The requisitioning order in question dated 29-5-1950, does not on the face of it state what is the public purpose for which the property was requisitioned. We took the view in The State Of Bombay… v. Mohanlal Kapur….*, 53 Bom. L.R 669 that every requisitioning order 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 urged by the State that when the requisitioning order was issued on 29-5-1950, Act XXXIX[39] of 1950 had not been passed and in The State Of Bombay… v. Mohanlal Kapur….*, 53 Bom. L.R 669, we were considering an order which was passed on 12-12-1950, after the enactment of act xxxix[39] of 1950. But in advancing this contention the Solicitor General for the State overlooks the provisions of S. 6 of that Act. That section provides that all orders for requisition made under Ss. 5, 6 and 7 of the said Act (i.e act xxxiii[33] of 1948) on or after that date (viz., 26-1-1950) shall be deemed to have been made under the said Act as amended by this Act. Therefore, the order of 29-5-1950, must be deemed to have been made under Act XXXIII[33] of 1948 as amended by Act XXXIX[39] of 1950 inasmuch as the order was made after 26-1-1950. Therefore, the order must be deemed to have been made pursuant to the power of the Government to requisition not for any purpose but for purposes of the State or any other public purpose. If that be so, the decision in The State Of Bombay… v. Mohanlal Kapur….*, 53 Bom. L.R 669 must apply also to the order which is challenged in this petition. The Solicitor-General says that the requisitioning authority on 29-5-1950, could not possibly have stated the public purpose or the purpose of the State in the order, as in fact the law then was different. But the State cannot have it both ways. If the Legislature has retrospectively cured the defect of unconstitutionality in Act XXXIII[33] of 1948 by Act XXXIX[39] of 1950, then any order that offends against the provisions of the amended Act must be held to be bad. The argument that the law in fact was different cannot avail the Solicitor General, because the Legislature has declared that the law must be deemed to have been as amended by act xxxix[39] of 1950. Therefore, we must uphold the view of the learned Judge below that the requisitioning order dated 29-5-1950, is bad ex facie, it having failed to mention the purpose for which the order was made.

    47. The result, therefore, is that the appeal fails and must be dismissed.

    48. On the question of costs, the learned Judge below having held on all points in favour of the petitioner directed that the petitioner should pay the costs of the petition up to the amendment and all costs incurred subsequent thereto should be paid by the respondent. In the appeal before us, the petitioner has lost on all the points urged by him except the minor point as to the validity of the order itself. Mr. Palkhiwala contends that this is a matter of great public importance and we should bear that in mind in awarding costs. As far as this appeal is concerned, there is no doubt that we could have disposed of this appeal on the narrow ground that the order being ex facie bad, the petitioner was entitled to succeed and the State was bound to fail in appeal. But the State itself, and rightly so, was anxious that the question of the constitutionality of the Act should be finally decided by the highest Court in the State. Any sense of uncertainty as to what the law was, was not a good thing either for the State or for the citizen, and therefore we acceded to the request of the Solicitor-General that we should deal with the constitutional question raised by Tendolkar, J. Therefore, as far as the appeal is concerned, I think the fairest order to make would be that there will be no order as to costs of the appeal.

    49. With regard to the costs of the petition in the Court below, the position is very different. It was the petitioner himself by amending his petition who invited the Court to deal with constitutional questions and give a decision in his favour. But for the amendment the matter would have been disposed of on the narrow question of the validity of the order itself. Therefore, in our opinion, the order of costs of the petition should be made by us on a different principle from the order that we are making with regard to the costs of the appeal. Therefore, the costs of the hearing of the petition will be that the petitioner must pay to the State three-fourths of the costs of the hearing of the petition. Coats of the reference will be costs in the petition. Costs to be taxed on the Long Cause scale.

    50. The respondent has cross-objected against the failure on the part of the learned Judge below to give a direction to the State to remove the lock and seal placed upon certain portions of the premises which were sought to be requisitioned by the order which was held to be a bad order. In our opinion, the petitioner is entitled ta possession of the premises which he was asked to hand over under the order of requisition. Therefore, we will direct that the State should hand over possession of the premises within seven days from today. The rest of the cross-objections dismissed. No order as to costs.

    V.S.B
    Appeal dismissed; Cross-objection partly allowed.
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    The State Of Bombay v. Heman Santlal Alreja .
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