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HIGH COURT OF BOMBAY
CHAGLA, GAJENDrAGADKAr, JJ.
State of Bombay
Versus
Heman Santlal Alreja
Misc. Appln. No. 201 of 1950
Decided On : 24-07-1951
The Bombay Land Requisition Act, 1948, as amended by the Bombay Land Requisition (Amendment) Act, 1950, and further amended by the Bombay Land Requisition (Second Amendment) Act, 1950, was challenged on various grounds, including its validity, the scope of the power of requisition, and the distinction between acquisition and requisition. The Court held that the Act was intra vires of the Provincial Legislature, that the power of requisition was not for an indefinite period but was restricted and circumscribed by the duration of the Act, and that requisitioning for an indefinite duration constituted acquisition within the meaning of S. 299 (2), Government of India Act, 1935. The Court also held that the Act was saved by Art. 31 (5) (a) of the Constitution and that the subsequent amendment of the Act by Act 2 of 1950, which extended its duration and amended certain substantive provisions, was within the legislative competence of the State Legislature.
Fact of the Case:
The petitioner, a sub-tenant, challenged an order of requisition made under S. 6 (4) (a), Bombay Land Requisition Act, 1948, requisitioning the premises occupied by him. The petition was initially allowed by a single judge, but on appeal, the order was set aside. The petitioner appealed to the High Court.
Finding of the Court:
The High Court held that the Bombay Land Requisition Act, 1948, as amended, was intra vires of the Provincial Legislature, that the power of requisition was not for an indefinite period but was restricted and circumscribed by the duration of the Act, that requisitioning for an indefinite duration constituted acquisition within the meaning of S. 299 (2), Government of India Act, 1935, that the Act was saved by Art. 31 (5) (a) of the Constitution, and that the subsequent amendment of the Act by Act 2 of 1950, which extended its duration and amended certain substantive provisions, was within the legislative competence of the State Legislature.
Issues: 1. Whether the Bombay Land Requisition Act, 1948, as amended, was intra vires of the Provincial Legislature? 2. Whether the power of requisition was for an indefinite period or was restricted and circumscribed by the duration of the Act? 3. Whether requisitioning for an indefinite duration constituted acquisition within the meaning of S. 299 (2), Government of India Act, 1935? 4. Whether the Act was saved by Art. 31 (5) (a) of the Constitution? 5. Whether the subsequent amendment of the Act by Act 2 of 1950, which extended its duration and amended certain substantive provisions, was within the legislative competence of the State Legislature?
Ratio Decidendi: 1. The Bombay Land Requisition Act, 1948, as amended, was intra vires of the Provincial Legislature because: - the Act was enacted pursuant to a notification issued by the Governor-General under S. 104, Government of India Act, 1935, which empowered Provincial Legislatures to legislate with respect to the requisitioning of land, and - the Act did not authorize the compulsory acquisition of land for public purposes, which was prohibited by S. 299 (2), Government of India Act, 1935. 2. The power of requisition was not for an indefinite period but was restricted and circumscribed by the duration of the Act because: - the Act was a temporary Act which was liable to expire on 31-3-1950 unless it was extended for a further period not exceeding two years, and - the power of Government to requisition property sprang from the provisions of the Act, and if the Act lapsed, then those powers must also cease to exist. 3. Requisitioning for an indefinite duration constituted acquisition within the meaning of S. 299 (2), Government of India Act, 1935, because: - the Act did not provide for the transfer of ownership or title when possession was handed over to Government, but - the extended meaning of "land" in S. 299 (5) denoted that ownership may be acquired not only of land but of any right in or over land. 4. The Act was saved by Art. 31 (5) (a) of the Constitution because: - the Act was an "existing law" within the meaning of Art. 366 (10) of the Constitution, and - Art. 31 (5) (a) saved existing laws from being void even if they contravened the provisions of Art. 31 (2). 5. The subsequent amendment of the Act by Act 2 of 1950, which extended its duration and amended certain substantive provisions, was within the legislative competence of the State Legislature because: - the Legislature had already applied its mind to the question of extending the duration of the Act and had passed conditional legislation to that effect, and - the Legislature had the power to extend the duration of the Act directly into its own hands.
Final Decision: The appeal was dismissed, and the cross-objections were partly allowed. The Court directed the State to hand over possession of the premises to the petitioner within seven days.
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 33 of 1948 was void. The State of Bombay came in appeal and we held (Heman Santlal Alreja v. State of Bombay, 53 Bom LR 355), that 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 33 of 1948 amended by the Bombay Land Requisition (Amendment) Act, 1950, (Act 2 of 1950) and further amended by the Bombay Land Requisition (Second Amendment) Act, 1950, (Act 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 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 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 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
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