Manohar v. G.G. Desai

1. This order will also govern the decision of Misc. Petn. No. 97 of 1950 which relates to the same subject as this petition.

2. The relevant facts are briefly these. The D.C, Yeotmal, requisitioned the house belonging to the applicant Manohar for being used partly as the office and partly as the residence of the Chief Executive Officer, Janpada Saoha, Pusad. In a part of this house is located the office of the Co-operative Central Bank Ltd., Pusad, (which is the applicant in Misc. Petn. No. 97 of 1950). A part of the house is reserved by the applicant for storing his own belongings, three central rooms are occupied by a pleader and the remainder, occupied by one Shri Mehandale, Headmaster of a school, who looks after the estate of the applicant and keeps an eye on the belongings of the applicant stored in the house. He is, apparently, a licensee of the applicant. The applicant himself and his brothers and sisters are receiving education and are at present residents at different places. The applicant who is studying law, expects to return to Pusad shortly after qualifying as a lawyer. He says that he wants to set up in practice there as a pleader and that as his late father, who was a successful lawyer, lived in the same house and had also his office in that house, he wants to occupy the house himself so as to take advantage of the “good-will” attached to the place. It may be mentioned that the applicant raised objection to the requisitioning of the house, and the D.C, after hearing him, agreed to let him have three rooms for storing his belongings. He, however, aided a condition that Shri Mehandale should not occupy any of these rooms as this would be “inconsistent with the dignity” of the Chief Executive Officer.

3. In his affidavit, the applicant says that there are other convenient houses in the neighbourhood and he challenges the bona fides of the D.C's order on the ground that the latter made no enquiry at all about the availability of other accommodation. He also says that the whole of the house is not really required by the D.C for the purposes for which he has requisitioned it and on this ground also he challenges the order of requisition. Further, according to him, the Chief Executive Officer is already occupying another house and has his office in a Govt. building and therefore the D.C gets no jurisdiction to requisition another house.

4. A large number of other objections are taken in the petition to the order out of which mention need be made of only those that were argued. They are as follows:

(i) That the C.P and Berar Act LXIII[63] of 1948 is rendered void by Article 13 of the Constitution as it is inconsistent with the provisions of Articles 19 and 81 of the Constitution.

(ii) That, at any rate, occupied premises cannot be requisitioned.

(iii) That the procedure provided by the Act was not followed in requisitioning the house.

(iv) That the order of the D.C is wanting in bona fides.

(v) That the condition attached by the D.C to the continued occupation of three rooms in the house by the applicant is illegal.

5. Most of the allegations of fact made by the applicant are admitted by the State. It is, however, said that the Chief Executive Officer is occupying a house meant for another, that his office is located in a Govt. building only as a temporary measure and this accommodation is badly needed for other Governmental purposes. It is also said that the accommodation at present made available to the Chief Executive Officer for his office and residence is inadequate. There does not appear to be any denial of the allegation made by the applicant in his affidavit to the effect that other accommodation is available.

6. As regards the various grounds of law raised by the applicant the State demur to them and say that the law is valid, that the procedure followed was correct and that the order is a good one. In addition, the learned Addl. Govt. Pleader, Shri Naik, raises the contention that Article 226 does not empower this Court to assist the applicant in a matter of this kind.

7. We would take the last mentioned point first. The learned Addl. Govt. Pleader, Shri Naik points out, and in our opinion quite correctly, that writs of certiorari and prohibition cannot issue unless the impugned order is a judicial or a quasi judicial one and that an order requisitioning property does not fall in either category. He also says that a writ of mandamus can issue only for the purpose of requiring the doing of a positive act and that as here no positive act is called for from the State, the applicant is not entitled to this writ also. Even if it is assumed that writs of mandamus are limited to the ordering of positive acts, we are clear that apart from the power to issue writs specifically named in Article 226, the H.C has been expressly empowered to issue any “directions, orders or writs” for the enforcement of any of the rights conferred by Part ill and for any other purpose. It is difficult to appreciate Shri Naik's argument that “directions, orders or writs” can issue only in the circumstances in which the writs named specifically can issue because that argument, if accepted, would so restrict the meaning of the words “directions, orders or writs” as to render them otiose. It is commonplace that effect must he given to every provision of a statute and that no word should be regarded as a surplusage unless that would lead to an absurdity. No absurdity results because of the construction we place on this article.

8. Again, the power conferred by Article 226 on High Courts is discretionary. It would, therefore, not, in our opinion, be right to read limitations in the wide powers conferred by the general words used therein merely because these words are followed by some specific words which connote a restricted power, more so when the article provides that the power conferred by the specific words is included in that conferred by the general words. The contention, therefore, that our powers are limited to the issuing of the specified writs only must fail.

9. Coming to the arguments advanced by Shri Abhyankar on behalf of the appct. it may be mentioned that he had also raised a point that the Act was ultra vires of the powers of the former Provincial Legislature as the subject of requisition was not included in any of the lists & the Governor-General had not authorised the Provincial Legislature under Section 104 of the Govt. of India Act, 1935, to legislate on the subject. When it was pointed out to Shri Abhyankar that the Governor-General had, by Notfn. No. F. 311/47-C & G dated 21-10-1947, specifically authorised the Provincial Legislature to legislate on the subject, he argued that the notfn. only authorised legislation for the requisitioning of “land” & that the word “land” does not include houses. Shri Naik referred to the definition of “land” in Section 3 of the Interpretation Act (1889), 52 & 53 vic. C. 63 which includes “misusages, tenements & hereditaments, houses & buildings of any tenure” & said that by virtue of Section 31 of the aforesaid Act, the meaning of an expression used in any “instrument” issued under an Act of Parliament shall unless the contrary intention appears be the same as in the Act conferring the power to issue the instrument. Except for the purposes of S. 299, the word “land” has not been defined in the Govt. of India Act, 1935. Therefore, that word will have the meaning given to it in Section 3 of the Interpretation Act, not only wherever it occurs in the Govt. of India Act (except S. 299) but also in the notfns. issued under any provision of that Act. Shri Abhyankar accepted the position & gave up the point.

10. The question next to be considered is whether the Act has been rendered unconstitutional because of the provisions of Articles 19 & 31 of the Constitution. The relevant part of Article 19 guarantees to a citizen the right to “acquire, hold & dispose of property.” According to the learned counsel, “hold” means “to possess” & as the act requisitioning interferes with that right, it is unconstitutional. The word “hold” has several meanings one of which is no doubt “possess” but then it also means “be the owner of (property).” Whether to give the word the meaning contended for by counsel or some other meaning would depend upon the context. Taken in the context of the preceding word “acquire” & that of the following words “dispose,” of it seems that the word “hold” can have no other meaning than “own” or “be the owner of.” To assign this meaning to the word would, in our view, be in consonance with the well established canons of interpretation. By the act of requisitioning the ownership of the owner would not be affected. For, despite requisitioning, the owner would continue to have the power to deal with his property in any manner he likes, except letting it out or be in possession thereof. Such an abridgement of his rights would not, however, amount to a violation of Article 19(1)(f).

11. We would, however, mention that there are certain observations of Patanjali Sastri, J. in A.K Gopalan v. State Of Madras., A.I.R (37) 1950 S.C 27 at p. 60 : (51 Cr. L.J 1383), which lend support to the view urged by learned counsel. What has fallen from His Lordship appears to be an obiter. All the same it is entitled to respect & so we would not pursue the point further but point out that Article 31 of the Constitution itself permits requisitioning of property for public purposes subject, of course, to the payment of compensation.

12. Clause (2) of Article 31 runs thus:

“No property, movable or immovable, including any Interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or each acquisition, unless the law provides for compensation for the property taken possession of or acquired & either fixes the amount of the compensation, or specifies the principle on which, & the manner in which, the compensation is to be determined & given.”

13. Section 4 of the C.P & Berar Accommodation (Requisition) Act, 1948, lays down the procedure for determining the compensation payable to the owner & to “any person appearing entitled to it.” Similarly, S. 3(1) of the Act provides for requisitioning only for a public purpose. Thus these provisions prima facie at leat satisfy the two requirements of this clause.

14. It is said that the “public purpose” contemplated by the clause must be such as would “bring a return to the public.” Section 3(1) enables the requisitioning accommodation only for the purposes of “providing residence for any person holding an office of profit under the Crown or for locating any public office of the Central or the Provincial Govt. or local authority Indubitably, a public office, whether of the Central or Provincial (now Union or State) Govt. or of a local authority exists for the benefit of the public & requisitioning accommodation for locating such office is a “public purpose.” Similarly, a person holding an office of profit under the Govt. is charged with the performance of public duties. Such a person must, for enabling him to discharge his duties, be housed & so, in our opinion, requisitioning accommodation for him would be as much a public purpose as would be the location of a public office.

15. Now, coming to the next point, that is, that occupied premises cannot be requisitioned. What we have to consider is whether the Act permits this to be done & if so, whether the law, to the extent that it permits this, must now be regarded as void.

16. The Act is quite obviously an encroachment on a house owner's right to deal with his property as he chooses & must, therefore, as held in In re Bowman, (1932) 2 K.B 621 at p. 633 : (101 L.J.K.B 798), Walsh v. Secy, of State, (1863) 10 H.L.C 367 : (32 L.J Ch. 585) & several other cases, be interpreted strictly & so as to respect such rights at the same time, according to the tendency of modern decisions all statutes are now construed with a more attentive regard to the language (see Maxwell, Interpretation of Statutes, p. 288). So where the language is plain or where, upon reading all the relevant provisions of the Act, no ambiguity is discernible in the words used in a statute, effect will have to be given to the words of the statute howsoever serious an encroachment on the rights of an individual would it lead to.

17. Bearing in mind these principles, let us consider the relevant provisions of the Act. Section 3(1) is the provision empowering the Govt. to requisition “accommodation.” The word “accommodation” is defined thus in S. 2(a):

“‘accommodation’ means any building or part of a building & includes: (i) the garden, grounds & outhouses, if any, appertaining to such building or part of building & (ii) any fittings or fixtures attached to any such building or part of such building or any furniture supplied by the owner for use in such building or part of building.”

18. The definition is wide enough to include “premises occupied by the owner or any other person.” Indeed, from the fact that the word “occupier” itself is defined in S. 2(b) & from the further fact that sub-s. (2) of S. 3 requires notices to be given to the owner as well as the occupier, it is clear that the power to requisition is not restricted to accommodation in unoccupied premises. We would further point out that the definition of “owner” in S. 2(c) includes a “mtgee. in possession” which also supports our view.

19. The question next to be considered is whether the law, to the extent it permits requisitioning of occupied premises, is void because it is unreasonable. The question whether a statute or a provision therein is reasonable or not is not a matter upon which Cts. of law are entitled to pronounce an opinion except when the Constitution authorises them so to do, as for instance, cls. (3) to (6) of Article 19 of the Constitution. These clauses have no relevance in the present case & no provision which is relevant was pointed out to us. We must therefore hold that even if the provisions permitting requisitioning of occupied property are regarded as unreasonable they are not for that reason alone invalid.

20. It is then said that distinction must be drawn between premises occupied by the owner & premises occupied by a tenant because the Act contemplates payment of compensation to the owner alone & not to the tenants who also are entitled to compensation under Article 31(2). In the absence of such provision the argument proceeds, the law is void in so far as premises in the occupation of tenants are concerned.

21. There is no doubt that a tenant or a lessee of a property is the transferee of an interest therein inasmuch as he has the present right to occupy the demised premises. Clause (2) of Article 31 provides that “no property, movable or immovable including any interest in etc.” shall be taken possession of for public purposes unless the law authorising such taking provides for compensation for the property taken possession of & “either fixes the amount of the compensation or specifies the principles on which & the manner in which, the compensation is to be determined & given.” This provision clearly contemplates payment of compensation to the person who has a present right to occupy the requisitioned premises. There is no provision in the Act for payment of compensation to a tenant. Section 4(1) clearly refers to the payment of compensation to the owner & to none else. No doubt, sub-s. (3) of S. 4 says that the Govt. or the arbitrator could pay the compensation to “any person appearing entitled to it.” These words, however, must be interpreted as referring to persons of the same type as the one referring to in sub-s. (1) of S. 4 that is the owner. It would not in our opinion, be in consonance with the principles of construction of statutes to give a wider meaning to the words “any person” so as to include a tenant in the absence of anything either in S. 4 or in any other provision of the Act which recognises the right of a tenant, or confers on a tenant the right, to receive compensation.

22. In the absence of a provision regarding the payment of compensation to a tenant it will have to be held that, after the coming into force of the Constitution, the C.P & Berar Accommodation (Requisition) Act, 1948, will have to be regarded as void in so far as it permits requisitioning of 1 property in the possession of tenants.

23. As regards the third point, the complaint is that the procedure prescribed by S. 6 of the Act was not followed by the Provincial Govt. It may be mentioned that what S. 6 provides is that the Provincial Govt. may call for certain information & so on. This section thus confers a power upon, the Provincial Govt. & does not impose any obligation on it. Therefore, the mere fact that no information was called for from the appct. by the Provincial Govt. does not affect the validity of the order of requisitioning. Moreover, it may be pointed out that the powers of the Provincial Govt. under the Act have been delegated to the D.Cs by an order passed under the Ordinance which preceded the Act. That order has been preserved by S. 15 of the Act.

24. Then, as regards the next point that the act of the D.C in requisitioning the house is wanting in bona fides, it is said that there are other convenient houses in the neighbourhood which are vacant, that the D.C should have seen, those houses & ascertained whether accommodation provided in them was suitable & adequate & that only if he found that accommodation was neither suitable nor adequate could he have proceeded to requisition the appct's. house because it was already occupied. The failure of the D.C to take these steps is said to disclose want of bona fides. Another circumstance is also relied on in support of the contention that the D.C's act is wanting in bona fides. That circumstance is the fact that the whole of the house is not actually required for the purposes for which it was being requisitioned.

25. While we agree that it is desirable for the authority requisitioning any premises to make due enquiries about all available accommodation & to proceed to requisition occupied premises only in the last resort, it does not necessarily follow from the failure of the requisitioning authority to make such enquiry that the order was not made bona fide. We, however, think that it is possible to infer lack of bona fides from the action of an authority requisitioning all the accommodation contained in these premises even though all the accommodation was not really required for the purpose for which it was requisitioned & no reason—or no satisfactory reason—was given for requisitioning accommodation in excess of that actually required. In this case, it is clear from the fact that the D.C modified the order originally passed by him & allowed the appct. to retain possession of three rooms in which he has stored his belongings that the order originally passed by him was not bona fide. No doubt, that order has been modified but that modification is conditional & so by non-acceptance of the condition the entire accommodation contained in the appct.'s house will be liable to be requisitioned. Therefore, the requisitioning will even now have to be regarded as of the entire accommodation. Since all this accommodation is not required for the bona fide use of the Chief Executive Officer & his office, we are of the view that the order is not bona fide.

26. In the view we take, it is not necessary to consider the fifth point raised by counsel.

27. In the result, we are of opinion that the order of the D.C requisitioning the appct.'s house be set aside. Costs of the appln. including those of the paper book, shall be borne by the State. Counsel's fee Rs. 100 if certified. Before parting with the case, we would like to point out that even though under the Defence Regulations the Minister of Health was given power to requisition premises of any kind & was also permitted to delegate those powers to local authorities, the following instructions, reproduced in Blackpool Corporation v. Locker, (1948) 1 ALL E.R 85 were given:

“The authority will appreciate that the purpose of granting the extended powers is to enable accommodation to be brought into occupation which would otherwise remain empty or be retained for occasional use. Experience shows that many houses which are unoccupied on a particular day are merely changing tenants in the ordinary way, & it is not intended that the powers should be used to hamper such transfers. When, therefore, requisitioning is being considered. In relation to a particular property the intention of the owner or tenant should be ascertained & he should be afforded a reasonable opportunity for letting or reoccupation as the case may be before requisitioning is applied. Typical cases where the power of requisitioning might suitably be exercised are houses which are either let or unlet, but which, whether furnished or not, have remained un-occupied.”

28. We are of opinion that if similar instructions are issued by the State Govt. to the district authorities to whom they may have delegated the power of requisitioning there will be very rare occasion for the abuse of the extraordinary powers which the statute has conferred on Govt. & which the Govt. are empowered to delegate.

29. Order set aside.