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1951 Supreme(P&H) 106
PUNJAB & HARYANA HIGH COURT
Weston and D.Falshaw JJ.
Shyam Krishen
Versus
State Of Punjab
Civil MISCELLANEOUS No. 270 of 1950,
Decided On : JULY 17, 1951
Headnote:
CONSTITUTION OF INDIA, 1950 - ARTICLE 226 - WRIT JURISDICTION OF HIGH COURT - EXTENT - POWER AND JURISDICTION - DISTINCTION - PUNJAB REQUISITIONING OF IMMOVABLE PROPERTY (TEMPORARY POWERS) ACT, 1947 AND 1948 - VALIDITY - WHETHER ULTRA VIRES - DELEGATION OF POWERS - REASONABLENESS - COMPENSATION TO TENANTS - WHETHER ACT PROVIDES - REQUISITIONING FOR PUBLIC PURPOSE - WHETHER NECESSARY - WORDS "NECESSARY OR EXPEDIENT" - INTERPRETATION.
Fact of the Case:
The petitioners challenged the validity of the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1947 and 1948, under which various premises were requisitioned. The main contentions were that the Acts were ultra vires of the Legislature, that the delegation of powers under the Acts was unreasonable, that the Acts made no provision for compensation to tenants, and that they permitted requisitioning of property for purposes other than a public purpose.
Finding of the Court:
The Court held that the Acts were not ultra vires of the Legislature, that the delegation of powers under the Acts was reasonable, that the Acts did provide for compensation to tenants, and that requisitioning for a public purpose was necessary. However, the Court held that the Acts were bad as they did not require public purpose to be considered before requisitioning property.
Issues: 1. Whether the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1947 and 1948 were ultra vires of the Legislature? 2. Whether the delegation of powers under the Acts was unreasonable? 3. Whether the Acts made no provision for compensation to tenants? 4. Whether the Acts permitted requisitioning of property for purposes other than a public purpose?
Ratio Decidendi: 1. The power to issue writs and similar orders is vested in the High Courts by the Constitution itself, and it is not necessary for Parliament to extend any of these powers to subordinate Courts. 2. The delegation of powers under the Acts was reasonable and did not violate the principle of separation of powers. 3. The Acts did provide for compensation to tenants, as the term "owner" in the compensation provisions could be interpreted to include tenants. 4. Requisitioning for a public purpose was necessary, as the Acts were intended to address the housing shortage caused by the partition of India.
Final Decision: The Court held that the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1947 and 1948 were not ultra vires of the Legislature, that the delegation of powers under the Acts was reasonable, that the Acts did provide for compensation to tenants, and that requisitioning for a public purpose was necessary. However, the Court held that the Acts were bad as they did not require public purpose to be considered before requisitioning property.
Falshaw, J.
1. This judgment will deal with Civil Writs Nos. 270 of 1950, 640 of 1950, 1 of 1951, 7 of 1951, 16 of 1951, 91 and 103 of 1951, and 768 and 772 of 1950, in all of which similar points of law of great importance have arisen. One of them Civil Miscellaneous No. 270 of 1950 relates to an order passed in December 1947, by the Deputy Commissioner, Karnal, under Section 2 of the Punjab Requisitioning of Immovable property (Temporary Powers) Act, 1947, and the other cases relate to orders passed under the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948, which superseded and repealed the Act of 1947 in November 1948. All of the applications are filed under Article 226 of the Constitution for the issue of one or other of the writs mentioned in that Article.
2. At the outset a point raised by the learned Advocate-General, which arises in all the cases regarding the Jurisdiction of this Court to entertain petitions for the writs mentioned in Article 228, requires to be dealt with. The objection of the learned Advocate-General is an ingenious one and, as will be seen, has round some support in s decided case, but in spite of this it appears to me to be without any force, and to be quite opposed to what appears to be the quite clear and unambiguous wording of Article 226, Clause (1) of which reada:
"Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to Issue to any person or authority, including in appropriate cases any Government, within these territories directions, orders or writs including writs in the nature of habeas corpus mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and or any other purpose."
Article 32 reads: Part III -- Fundamental Bights) "(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part Is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs. Including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto1, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its Jurisdiction all or any of the powers exerciseable by the Supreme Court under Clause (2).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution."
The argument of the learned Advocate-General was based on the supposition that with regard to the High Court, or any other Courts, there exists a rigid line of distinction between "power" and "Jurisdiction" and that In fact the two are in separate watertight compartments, and in order to reinforce his argument he relied on the provisions of Article 225, which, according to the marginal Insertion, relates to the Jurisdiction of existing High Courts. This Article reads:
"Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the Jurisdiction of, and the law administered In, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution."
The Article also contains a proviso removing certain restrictions with which we are not concerned in the present argument. It was contended that although Article 226 gives all the High, Courts the power to issue directions,
