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  • Subimal C. Roy
  • A.K. Mukherjee
Judges
  • Bose, J.
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Attorney(S)
  • Subimal C. Roy
  • A.K. Mukherjee
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  • Bose, J.
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Smart Summary

Case Summary — Petition under Article 226 challenging requisition under W.B. Act 5 of 1947

Factual and Procedural Background

The petitioner is the owner of premises No. 2 Chhaku Khansama Lane, Calcutta. Prior to March 1950 the premises were let to Yusuf Miah at a rent of Rs. 300 per month; under Yusuf there were sub-tenants (Muslim). In March 1950 communal disturbances in Calcutta led to refugees forcibly ousting those sub-tenants. Yusuf Miah left for East Pakistan in or about April 1950.

On or about 20 April 1950 displaced tenants applied to the Deputy Commissioner of Police requesting restoration of possession; that petition was signed by Khaliluddin and Md. Ishaq and counter-signed by the petitioner. At the tenants' request the petitioner granted a tenancy to Abdul Majid in April 1950 for one year against an advance of Rs. 325; Abdul Majid is respondent 4. On 1 May 1950 police removed refugees and restored possession to the Muslim tenants; on 2 May 1950 refugees again threatened tenants, and the tenants (and the petitioner) applied for police protection.

On 8 May 1950 respondent 3 (Assistant Secretary to the Government of West Bengal) issued an order purporting to requisition the premises under Section 3(1) of the W.B. Premises Requisition and Control (Temporary Provisions) Act, 1947 (Act 5 of 1947). Notice was sent to the petitioner on or about 10 May 1950; the Land Acquisition Collector took possession of a major portion of the premises the same day. No formal notice of requisition was served on Yusuf Miah or on Abdul Majid.

Subsequent events: Abdul Majid commenced criminal proceedings against the petitioner on 22 May 1950 (charge of cheating under S.420, Penal Code); the petitioner sought recall of the requisition order on 24 May but respondent 3 did not accede. Notices were served on the petitioner (to remove articles, to execute repairs, to pay municipal taxes) between May and November 1950, and the Government threatened forcible entry when some rooms remained locked. The Government ultimately took possession of the remaining rooms and continued to press for repairs and taxes. The criminal case was disposed of by acquittal on 27 February 1951.

On 18 July 1951 the petitioner moved the Court under Article 226 and obtained a Rule Nisi. The Court ultimately discharged the Rule and dismissed the petition; the judge made no order as to costs.

Legal Issues Presented

  1. Whether a requisition made under Section 3(1) of the W.B. Act 5 of 1947 was made for a public purpose and therefore permissible.
  2. Whether the question of whether a requisition is for a public purpose is justiciable by the Court (i.e., whether the Court may inquire into the executive's decision on necessity/expediency).
  3. Whether failure to serve notice of requisition on persons described as the tenants (as required by Section 3(2) of the Act) renders the requisition proceedings void.
  4. Whether the petitioner’s delay in seeking relief disentitles him to interference under Article 226.

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. Subimal Roy)

  • The requisition was not made for a public purpose and therefore should be cancelled.
  • The respondents did not place before the Court sufficient particulars about the alleged public purpose to enable judicial appraisal; statements by respondents were vague and inconsistent between affidavits and correspondence, indicating mala fides.
  • No notice of requisition was served on the tenants as required by Section 3(2), rendering the requisition proceedings void.
  • Implicitly, the petitioner sought relief under Article 226 to set aside the requisition/order and to restrain respondents from acting under it.

Respondents' Arguments (as described in the opinion)

  • Counsel for the respondents (Mr. A.K. Mukheriee) relied on authorities establishing that where an Act commits a decision to the Executive as to what is necessary or expedient, courts will not investigate the grounds or reasonableness of that executive decision in the absence of an allegation of bad faith.
  • The stated public purpose (housing of Government employees who had to be brought down to Calcutta on account of disturbances in East Bengal) amounted to a public purpose and justified requisition.
  • As regards notice under Section 3(2), the tenants who might have been entitled to notice were not in possession (Yusuf Miah had left for Pakistan and Abdul Majid had not been put into possession); therefore the statutory requirement was effectively satisfied.
  • Implicitly, respondents relied on the procedural notices served on the petitioner and subsequent occupation by Government personnel to justify the requisition and subsequent acts (repairs, taxes, etc.).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Point of Ayr Collieries Ltd. v. Lloyd George, (1943) 2 All ER 546 Where an Act commits to an Executive authority the decision of what is necessary or expedient, courts will not investigate the grounds or reasonableness of that decision in absence of an allegation of bad faith. Cited by respondents' counsel to support non-justiciability of executive requisition decisions; the Court acknowledged the principle but examined its applicability in light of later authorities.
Carltona Ltd. v. Commissioners of Works, (1943) 2 All ER 560 Similar principle to Point of Ayr regarding courts' limited scope to review executive decisions committed by statute. Relied upon by respondents; Court noted it as part of the line of authority but considered subsequent constitutional developments.
A.C. Mohamed v. Sailendra, 54 Cal WN 642 Calcutta decision following the principle that executive requisition decisions are not ordinarily subject to judicial inquiry absent bad faith (in the context of W.B. Act requisitions). Identified by the Court as a Calcutta precedent following Point of Ayr/Carltona; referred to in assessing earlier line of authority.
Patri Shaw v. R.N. Roy, 54 Cal WN 855 Another Calcutta decision following the principle limiting judicial inquiry into executive requisition/acquisition decisions. Noted by the Court as part of the Calcutta jurisprudence cited by respondents and later approved in higher authority.
Province of Bombay v. Khusaldas S. Advani, (1950) SCR 621 Holds (as cited) that housing of refugees is a public purpose; approves certain Calcutta cases that limited judicial inquiry into executive requisitions. Cited by both sides: Court relied on this authority for the proposition that housing refugees is a public purpose and noted that it approved earlier Calcutta authorities; used to support the conclusion that the present requisition could be for public purpose.
West Bengal Settlement Kanungo Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee, 55 Cal WN 778 Expresses the view that, because of the Constitution of India, the question whether a particular acquisition/requisition is for a public purpose is justiciable in a court of law. The Court treated this decision as altering the earlier non-justiciability rule for acquisitions/requisitions in light of constitutional provisions (Article 31(2)) and held itself bound to treat the public-purpose question as justiciable.
Sudhindra Nath Datta v. Sailendra Nath Mitra, 87 Cal LJ 140 Held that requisition for a minister was for a public purpose (illustrates that requisition for official accommodation can be a public purpose). Relied upon by the Court by analogy: if requisition for a minister is a public purpose, requisition for subordinate government officers (or employees) can also be honestly requisitioned; supported the Court's conclusion that requisition here could be for a public purpose.

Court's Reasoning and Analysis

The Court proceeded through a sequence of legal analyses, addressing justiciability, adequacy of particulars, bona fides/public purpose, compliance with statutory notice requirements, and delay.

1. Justiciability of the public-purpose question: The Court first reviewed authorities (Point of Ayr and Carltona and subsequent Calcutta cases) establishing that where an Act commits the decision of necessity or expediency to the Executive, courts do not ordinarily investigate the grounds or reasonableness of that decision absent bad faith. However, the Court considered the decision in Bella Bannerjee, which held that constitutional provisions (Article 31(2) was cited) made the question whether an acquisition was for a public purpose justiciable. The judge stated he was bound by that decision and therefore treated the public-purpose question as justiciable.

2. Sufficiency and consistency of the respondents' stated public purpose: The petitioner argued that the respondents had provided only vague, inconsistent statements about the public purpose (variously described as housing "employees of Government" or "several families of Government employees brought down to Calcutta for disturbances in East Bengal") and that the lack of names, offices or particulars supported an inference of mala fides. The Court acknowledged the paucity of particulars but concluded that the variations were not substantive. The Court accepted that housing of Government employees (including refugees or those brought down because of disturbances) was a public purpose, citing Khusaldas's case (housing refugees is a public purpose) and Sudhindra Nath Datta (requisition for a minister was public purpose) to support that conclusion. On this basis the Court held it could not find the requisition mala fide or not for public purpose.

3. Compliance with Section 3(2) (service on tenants): The petitioner contended that no notice had been served on tenants as required by S.3(2), rendering the requisition void. The Court examined facts: Yusuf Miah was admittedly the petitioner's tenant but had abandoned the tenancy and left for Pakistan and was not in possession at the time of requisition; Abdul Majid, though entered into an agreement in April, had not been put into possession before requisition (and had filed criminal proceedings). Some sub-tenants had locked rooms but, by the petitioner's own account, were not tenants of the petitioner. The petitioner had obtained vacant possession with police help and had started repairs (evidenced by materials). On these factual findings, the Court held it could not say the requirements of S.3(2) had not been complied with or that the requisition proceedings were void.

4. Delay and laches: The Court found the petitioner guilty of unreasonable delay. The requisition order was in May 1950; by August 1950 the petitioner's representations had been rejected; the Government had deprived the petitioner of possession by November 1950; yet the petitioner did not move the Court until July 1951. The Court observed that no satisfactory explanation for the delay was furnished and that this factor weighed against judicial interference under Article 226.

5. Overall conclusion of analysis: Considering justiciability, the Court accepted that it could examine public purpose but, applying the authorities and the facts, concluded the requisition could honestly be for a public purpose (housing Government employees/refugees). The Court further found that statutory notice requirements were not shown to have been breached in a manner that vitiated the requisition, and that delay by the petitioner precluded relief. On these bases the Court declined to interfere under Article 226.

Holding and Implications

Holding: The petition was dismissed and the Rule was discharged. The Court stated that the materials on record did not justify interference under Article 226. The judge expressly made no order as to costs. (Paragraphs concluding: "This petition fails and the Rule is discharged." and "Rule discharged.")

Implications:

  • Direct effect on the parties: The requisition order remained effective for the purposes described in the respondents' materials; the petitioner was not granted the writ relief sought and remains subject to the requisition and the notices served (repairs, municipal taxes, etc.).
  • The Court treated the question of whether a requisition is for a public purpose as justiciable (following the Bella Bannerjee decision), but on the facts before it found the present requisition to be capable of being a bona fide requisition for public purpose (housing Government employees/refugees); the petitioner's challenge therefore failed on merits and on grounds of delay.
  • The opinion records the Court's reliance on established authority about non-review of purely executive decisions absent bad faith, while also recognising that constitutional considerations make the public-purpose question open to judicial inquiry; beyond these determinations the opinion does not articulate broader new legal principles or a change to precedent beyond applying the cited authorities to the facts of this case.

Disposition: Rule discharged.

Show full summary ...

    Abdul Hamid v. The State Of West Bengal And Others

    1. This is an application under Article 226 of the Constitution for appropriate writs for cancellation of an order of requisition dated 8th May, 1950, purported to be passed under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1847 (Act 5 of 1947) and for direction upon the opposite parties to forbear from giving effect to that order or taking any steps or proceedings thereunder.

    2. The petitioner is the owner of premises No. 2 Chhaku Khansama Lane, Calcutta. The case of the petitioner is that prior to March 1950 the petitioner let out the premises to one Yusuf Miah at a rent of Rs. 300 per month. In or about the month of March 1950 communal disturbances broke out in Calcutta and the area where the petitioner's premises was situated was badly affected by such disturbances, with the result that refugees from East Pakistan and other persons forcibly ousted all the sub-tenants sunder the said Yusuf Miah (who were all Muslims) from the said premises. Yusuf Miah immediately thereafter left for East Pakistan. In April 1950 the Nehru-Liaquat Ali Pact being entered into, the said Muslim tenants who were driven out of the said premises by the refugees made an application on or about 20th April, 1950 to the Deputy Commissioner of Police. North, requesting him to restore possession of the said premises which was in the wrongful occupation of the refugees and others, to the said tenants from whom possession had been wrongfully taken. This petition of the tenants is signed by one Khaliluddin and one Md. Ishaq and is counter-signed by Abdul Hamid the petitioner in the present proceedings. This petition further shows that one Yusuf was the representative of the tenants who were driven out of the premises and he made complaints to the Thana about the forcible eviction; but no police assistance was available. Yusuf Miah thereafter having left for Pakistan on or about 23rd April, 1950, the petitioner at the request of one of the tenants who were actually residing at the said premises granted a tenancy to Abdul Majid for a period of one year and accepted a sum of Rs. 325 as advance payment. This Abdul Majid is respondent 4 in the present proceedings. On 1st May, 1950 the Police authorities removed the refugees and other persons who were in wrongful occupation of the premises and made over possession to the Muslim tenants who were in the premises at the time of commencement of the communal disturbances. On 2nd May, 1950 the refugees again started creating trouble and threatened the tenants with dire consequences in case they continued to occupy the said premises. Apprehending a breach of the peace three of the tenants — Mushtaq Ahmed, Khaliluddin and Md. Ishaq and the petitioner applied to the Deputy Commissioner of Police for protection.

    3. On 8th May, 1950 respondent 3 who is the Assistant Secretary to the Government of West Bengal issued an order in writing purporting to requisition the said premises under S. 3(I) of the said W.B Act 5 of 1947 and notice of such acquisition was sent to the petitioner on or about 10th May, 1950 requiring the petitioner to place the property at the disposal of the First Land Acquisition Collector on that date. On the same date the Land Acquisition Collector through his representative took possession of the major portion of the said premises. No notice of the requisition was, however, served on either Yusuf Miah or Abdul Majid who were the direct tenants of the petitioner. On 22nd May, 1950, Abdul Majid commenced criminal proceedings against the petitioner on a charge of cheating under S. 420. Penal Code. On or about 24th May, 1950 the petitioner made an application to respondent 3 setting out the events that had taken place in the meantime and requesting respondent 3 to recall the order of requisition but the respondent 3 did not accede to the petitioner's application. On 31st May, 1950 respondent 2 served notice on the petitioner directing him to remove all articles lying in two rooms of the said premises, by 16th June, 1950. On 22nd June, 1950, the petitioner appealed to the Hon'ble Minister of the Revenue Department. It was pointed out in this petition that the Muslim tenants who had been occupying the entire building had been forcibly displaced by the refugees and the local Goondas and they were roaming about and had no place where they could take shelter. It is also stated in this petition that ultimately with Police help the premises was vacated and made over to the petitioner. In the petition the facts that a new agreement of tenancy was entered into with Abdul Majid and that the latter had filed a criminal case against the petitioner are also recited.

    4. This appeal was also rejected and the petitioner was informed by a letter from respondent 3 bearing date 28th August, 1950 that the prayer of the petitioner for de-requisitioning the premises with a view to reinstate the old displaced tenants could not be granted as the house had been occupied by several families of Government employees, who had to be brought down to Calcutta for disturbances in East Bengal. Thereafter on 1st November, 1950, a notice was served on the petitioner under Section 4 of the W.B Act 5 of 1947 calling upon the petitioner to execute certain repairs to the premises particulars whereof were specified in a schedule annexed to that letter. As the Government did not succeed in obtaining possession of all the rooms in the said premises a notice was served upon the petitioner on 6th November, 1950 intimating that if possession was not delivered by 10th November, 1950 forcible possession would be taken by breaking open the locks with the help of Police. On 10th November, 1950, the petitioner wrote to respondent 2 pointing out that the locked up rooms which the Government intended to break open were in the occupation of two tenants named Mushtaq Ali Ahmed and Md. Ahsan who refused to vacate the rooms in spite of the fact that the Government order of requisition was shown to them.

    5. Thereafter the Government, however, managed to take possession of the remaining rooms from the petitioner and served him with further notices to execute repairs on the said premises and to pay municipal taxes in respect of the said premises as demanded by the Corporation of Calcutta. In the meantime the criminal proceeding which had been pending for about nine months was disposed of on 27th February, 1951. The Magistrate after hearing the prosecution witnesses and the evidence given on behalf of the accused acquitted the petitioner of the charge of cheating. The notices calling upon the petitioner to execute the repairs and to pay out the Corporation taxes were served on the petitioner between 15th March, 1951 and 15th May, 1951. On 18th July, 1951, the petitioner moved this Court and obtained a Rule Nisi.

    6. It has been contended by Mr. Subimal Roy, the learned counsel for the petitioner that the requisition in the present case has not been made for a public purpose. The question whether this matter is justiciable has been the subject of much controversy in this case. Mr. Roy has relied on some observations of B.K Mukherjea and Mahajan JJ. in the case of — ‘Province of Bombay v. Khusaldas S. Advani’, (1950) SCR 621 and on the observations of Harries C.J in — ‘West Bengal Settlement Kanungo Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee’, 55 Cal WN 778, in support of his argument that the question whether a requisition in a particular case is for a public purpose or not can be enquired into by the Court.

    7. Section 3(1) of the Act (W.B Act 5 of 1947) is as follows:

    Sec. 3(1): Whenever it appears to the Provincial Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing, requisition such premises:

    Provided that no premises exclusively used for purpose of religious worship shall be requisitioned under this section.

    8. Section 3(2) of the Act which is also relevant for the purpose of this case is set out hereunder:

    Section 3(2)—An order under sub-s. (1) shall be served on the landlord, and where it relates to premises in occupation, of a tenant also on such tenant in such manner as may be prescribed.

    9. It has been held in — ‘Point of Ayr Collieries Ltd. v. Lloyd George’, (1943) 2 All ER 546 and — ‘Carltona Ltd. v. Commissioners of Works’, (1943) 2 All ER 560, that where an Act or Regulation commits to an Executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. Mr. A.K Mukheriee the learned counsel for the respondents, placed reliance on these cases. These cases have been followed in this Court in the case of — ‘A.C Mohamed v. Sailendra’, 54 Cal WN 642, which was also a case of requisition under W.B Act 5 of 1947 and in the case of — ‘Patri Shaw v. R.N Roy’, 54 Cal WN 855, which was a case of a requisition under the West Bengal Security Act, 1943. These Calcutta cases have been approved of in — ‘Province of Bombay v. Khusaldas S. Advani’, (1950) SCR 621.

    10. Now if the matter had rested there it might for said that the question of whether a requisition was for a public purpose or not could not for gone into in a Court of law. But Harries C.J in the case of — ‘W.B.S.K Co-operative Society Ltd. v. Bella Bannerjee’, 55 Cal WN 778, has expressed the view that the provisions of the Constitution of India have brought about a change in the situation and the question whether a particular acquisition is for a public purpose is justiciable in a court of law. The learned Chief Justice has attempted to draw a distinction between the case of requisition and acquisition (p. 800) but it appears to me that Article 31(2) covers cases of both requisition and acquisition. In view of this decision in ‘Bella Bannerjee's case’ I am bound to hold that the matter whether the requisition in the present case was for a public purpose or not is justiciable.

    11. Mr. Subimal Roy has submitted that the respondents have not placed before the Court sufficient particulars about the alleged public purpose to enable the Court to judge whether the purpose of requisition was really a public purpose or not. Further it is submitted that the respondents have made different statements as to the nature of the alleged public purpose in the affidavits and in the correspondence and from this the Court must conclude that the requisition is not bona fide and is not for public purpose. It is pointed out that the affidavit of respondent 2 states that the requisition was made for accommodation of employees of the Government (Para 6) but in the letter annexed to this affidavit dated 28th August, 1950 it is stated that the premises are in the occupation of several families of Government employees who had to be brought down to Calcutta for disturbances in East Bengal. The affidavit of respondent 2 is that the house was required for some of the employees of the Government of West Bengal. It is true that beyond making these statements of the vaguest kind no particulars have been given as to the names and addresses of the employees nor as to the nature of offices held by such employees. When the fact has been challenged one would expect that the Government would come forward with more details. The fact, however, remains that no detailed particulars are available.

    12. The question, however, is whether this fact by itself justifies this Court in finding that the order of requisition was not for public purpose or was passed mala fide. It appears to me that it will not be proper for this Court to come to any such conclusion. Although there is some difference in the wordings of the affidavits and the correspondence, as to the purpose for which the order of requisition was made, I think there is no difference in substance and the acquisition for employees of Government whether they are refugees or not is acquisition for a public purpose. In — ‘Sudhindra Nath Datta… v. Sailendra Nath Mitra….’, 87 Cal LJ 140, Harries C.J held that requisition for a minister was for a public purpose. It may be that in the present case the employees concerned are not entitled to as commodious or comfortable an accommodation as the Minister but the premises in the present case do not appear to be of such a nature that it cannot be honestly requisitioned for some subordinate officers of the Government. In ‘Khusalda's case’ Mukherjea J. has held that the housing of refugees is a public purpose. ‘Province of Bombay v. Khusaldas S. Advani’, 1950 SCR 621 at p. 687. I am, therefore, unable to hold that the requisition in this case was mala fide or it was not made for a public purpose.

    13. It has been next contended by Mr. Subimal Roy that inasmuch as no notice of the Order of requisition was served on the tenants as required by Section 3(2) of the Act the proceedings for requisition are void. There is no doubt that the premises had been let out to some Muslim tenants but the case of the petitioner is that he first let it out to one Yousuf Miah and under Yousuf Miah there were some sub-tenants. The petition of the tenants dated 20th April, 1950 states that Yousuf Miah was their representative.

    14. So it is clear that Yousuf Miah was a tenant under the petitioner, but according to the case of the petitioner this Yousuf Miah abandoned his tenancy and left for Pakistan in April 1950 and his whereabouts could not be traced. So he was not admittedly in possession of the premises at the time of requisition. It is true that the petitioner had entered into an agreement of tenancy with another person of the name of Abdul Majid in April 1950 but he did not make over possession of the premises to the new tenant before or at the time of requisition, and because possession was not made over to the new tenant the latter filed criminal proceedings against the petitioner. Some of the sub-tenants of Yousuf Miah had perhaps kept some of the rooms under lock and key but they were not tenants of the petitioner according to the petitioner himself. Further it appears to be a fact from the petition dated 22nd June, 1950 which was addressed to the Revenue Minister that with the help of the police the petitioner succeeded in driving out the refugees and in having vacant possession made over to him, and the petitioner started making repairs to the premises. The presence of a wooden ladder and the presence of sand and time in some of the rooms indicate that the repairs were going on when the Government issued the order of requisition. It appears that the premises was not in the occupation of Yousuf Miah or Abdul Majid who are alleged to be the tenants of the petitioner and in the circumstances it cannot be said that the requirements of S. 3(2) had not been complied with or the proceedings for requisition were void.

    15. Moreover, the petitioner has been guilty of unreasonable delay in moving this Court and no satisfactory explanation is forthcoming as to why the petitioner did not take steps earlier in the matter. The order of requisition was made in May 1950 and by August 1950 all his representations to the various authorities were rejected and he was totally deprived of possession of the premises in November 1950 but yet he took no steps till July 1951. It is perhaps the Government is pressing for repairs of the premises and the petitioner finds that the repairs will cost him a substantial amount that he is trying to get rid of the order of requisition. However it is not for this Court to speculate as to the reasons which prompted the petitioner to make this application. It is sufficient to point out that the materials on record do not justify this Court in interfering under Article 226 of the Constitution. In the result this petition fails and the Rule is discharged. I make no order as to costs.

    A/R.G.D

    16. Rule discharged.

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    Comments

    Abdul Hamid v. The State Of West Bengal And Others
    (Feb 27, 1952)