Chagla, C.J:—

A petition was presented before Mr. Justice Tendolkar by one Heman Santlal Alreja alleging that he was a sub-tenant of certain premises and that Government on May 29, 1950, had issued an order under s. 6(4)(a) of the Bombay Land Requisition Act, 1948, requisitioning the premises of which he was a sub-tenant, and that the order passed by Government was void because according to him s. 6(4)(a) of the Act was void as contravening the provisions of the Constitution. As the question raised was of considerable importance and as several other petitions were pending before Mr. Justice Tendolkar which raised the same question, Mr. Justice Tendolkar referred the matter to a divisional bench and in doing so the learned Judge raised several questions for our decision. As we shall presently point out, we propose to decide only those questions which directly arise from the facts of this particular petition. It is always inadvisable to travel outside the facts of a particular case and express hypothetical opinions which may only embarrass Judges who may have to consider cases in future which arise on different facts. This is particularly so when we are dealing with our Constitution which is a new enactment and which always raises questions of great difficulty and complexity.

It would first be necessary to consider the impugned provisions of the Act in question. The Act was passed on April 11, 1948, and the object of the Act was to provide for the requisition of land, for the continuance of requisition of land, and for certain other purposes. Section 5 gave power to the Government to requisition any land for any purpose and the limitation on that power was that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceeding the date of the order shall be requisitioned under this section. Section 6 provided for requisition of vacant premises and it cast certain obligations upon the landlord to give intimation with regard to a vacancy. Sub-section (4) of s. 6 provided:

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

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

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

Now, as we pointed out before, the order issued by Government is under s. 6(4)(a) and the order purports to requisition the premises in possession of the petitioner. The challenge made by the petitioner both to s. 5 and s. 6 is that after the Constitution was enacted, viz., January 26, 1950, these sections became void under art. 13 of the Constitution inasmuch as they contained provisions which are inconsistent with the provisions of Part III which deal with fundamental rights. It is not disputed that when the Act was passed in April, 1948, the Legislature that passed it had legislative competence and the Act continued to be a valid Act and all its provisions were valid until January 26, 1950, when by reason of the passing of the Constitution and by reason of art. 13 of the Constitution certain provisions of the Act became void. What is contended on behalf of the petitioner is that ss. 5 and 6 give power to the Government to requisition property for any purpose, and any provision of law which gives such power to the State is contrary to the fundamental rights embodied in the Constitution. The right to property under the Constitution is dealt with under art. 19(1)(f) and arts. 31 and 32. We had occasion to consider the scheme of these Articles in a recent judgment in Dwarkadas Shrinivas v. Sholapur Mills, and it is necessary perhaps briefly to recapitulate what we then held and the view we took of these articles. Our view was that art. 31(2) dealt with cases where ownership of property or possession of property passed to the State under an order issued by the State and art. 31(2) placed two limitations upon the power of the State either to acquire ownership or possession of any property and these two limitations were that the State could only acquire or take possession of property for a public purpose and the second limitation was that it could only do so provided it gave compensation. We also took the view that art. 31(1) dealt with a different topic from the topic dealt with under art. 31(2) and that the expression “deprivation” used in art. 31(1) was wider and had different connotations than “acquisition” or “taking possession”. Our view was that art. 31(1) really dealt with the powers of the State which under the American Constitution are known as Police powers, and art. 33(1) gave the power to the State to deprive a subject of his property without paying compensation. But our view was that the deprivation must be something different from acquisition or taking possession, and one of the instances we pointed out was that there may be cases where the State may be compelled to extinguish the right of a subject in a property without the State itself becoming the owner or taking possession of the property. Such cases were dealt with under art. 31(1). We also took the view that art. 19(1)(f) did not control art. 31(1) or 31(2) and that art. 19(1)(f) only dealt with cases where the subject was the owner or in possession of property. In those cases the Constitution gave him the right to hold and dispose of property and under sub-cl. (5) the State's power to impose restrictions upon such right were limited. Those restrictions could only be reasonable and it was for the Court to determine whether those restrictions were reasonable or not. But if a citizen was deprived of his property under art. 31(1) or his ownership or possession was taken away under art. 31(2), then no question of any right could arise under art. 19(1)(f). Article 19(1)(f) applied only to such citizen who still held property and whose property was not taken away under art. 31(1) or 31(2). If his property was taken away, then he could challenge such deprivation under art. 31, but not under art. 19(1)(f). We find support in the view we took in A.K Gopalan v. The State and now the Advocate General has drawn our attention to a recent judgment of the Supreme Court in Charanjitlal Chowdhary v. The Union of India which seems to afford fresh support to the view we took of these two articles.

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

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

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

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

Now, turning to the questions referred to us by Mr. Justice Tendolkar. We will reframe question 1 and the question so reframed is:

“Whether the provisions of the Bombay Land Requisition Act 1948 dealing with requisition or taking possession of land or premises are void on the January 26, 1950 upon the coming into force of the constitution of India?

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

The petition will go back to Mr. Justice Tendolkar to dispose of it in the light of this judgment.

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

Attorneys for petitioner: Eastley Lam & Co.

Attorneys for respondent: Little & Co.

Order accordingly.

A.J.P