Judgement

BOSE J.: This judgment will govern Civil Appeals Nos. 146 and 147 of 1952 (These seem to be appeals from AIR 1952 Bom 16 and AIR 1952 Bom 468 -Ed.) as well. We will first deal with the questions that are common to them all. They arise out of three petitions made in the Bombay High Court for writs of mandamus under Article 226 of the Constitution. The writs have been granted and the State of Bombay appeals.

2. The facts are these.

The Governor of Bombay, acting through the Assistant Controller of Accommodation, issued orders under Section 6(4)(a) of the Bombay Land Requisition Act, 1948 in Civil Appeals Nos. 145 and 146 of 1952 and under Section 5(1) in Civil Appeal No. 147 of 1952, requisitioning the premises of the three respondents. The question is whether these orders are ultra vires . They are attacked on a number of grounds the first of which goes to the root of the matter. It is contended that these two sections are ultra vires Articles 19 (1)(f) and 31(2) of the Constitution.

3. The respondents are either the owners or the tenants of the premises requisitioned. In Civil Appeal No. 145 of 1952 the respondents are uncle and nephew. The uncle, who is the first respondent, is the tenant. The second respondent is his nephew. He and his family live with the first respondent in the requisitioned premises.

In Civil Appeal No. 146 of 1952 the premises are owned by a trust. The first and second respondents are the trustees and the third respondent claims to be a licensee living on the premises. The State of Bombay contends that he is a tenant but that is no longer of consequence because of the assurance given by the learned Attorney-General that the possession of the petitioners in this case will not be disturbed for any reason arising out of these proceedings.

In Civil Appeal No. 147 of 1952 there is only one respondent, a private limited company which occupies the requisitioned premises as a tenant for the purposes of its business.

4. The Act of 1948 would have expired in April 1950 but its life was extended by Bombay Act II of 1950. Later, Sections 5 and 6 were amended by Bombay Act XXXIX of 1950. As the later Acts were after the Constitution and as the life of the main Act was extended after the Constitution came into form, it is said that they are all hit by Articles 19 (1)(f) and 31(2), firstly, because the restrictions imposed on the right to hold, acquire and dispose of property are neither reasonable nor in the interests of the general public and, secondly, because the Act does not require that there should be a public purpose.

5. We will first deal with Civil Appeals Nos. 145 and 146 of 1952 where tenants and licensees are concerned.

6. In our opinion, Article 19(1) (f) does not apply to them. In- State of West Bengal v. Subodh Gopal Bose , AIR 1954 SC 92 (A) and - Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. , AIR 1954 SC l19 (B), the majority of the Judges were agreed that Articles 19(1)(f) and 31 deal with different subjects and cover different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was no overlapping. We need not examine those differences here because it is enough to say that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no property which can be acquired held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised.

In our opinion, this was decided in principle in - Gopalan v. State of Madras , AIR 1950 SC 27 (C), where it was held that the freedoms