Pandit Srinivas Khedwal vs The State of West Bengal

Das, J.—This is an appeal by Pandit Srinivas Kedwal against a judgment of Bose, J., dated May 7, 1951, dismissing an application filed by the Appellant under Article 226 of the Constitution of India for the issue of a writ of certiorari for quashing an order of requisition, dated October 31, 1950, made by the Assistant Secretary, Government of West Bengal, u/s 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (W. Ben. V of 1947), hereinafter called the Act, in respect of three rooms on the first floor in the southwest wing of premises No. 11, Vivekananda Road, in the city of Calcutta.

One Bhajanlal Khedwal died on April 9, 1942, leaving him surviving his widow Ram Deyi and three sons, Srinivas, the Appellant, Bhuramull and Babulal.

On Bhajanlal''s death the said premises No. 11, Vivekananda Road, vested in the Appellant Srinivas and his two brothers, Bhuramull and Babulal.

On November 18, 1947, an order of requisition was made by the first land acquisition collector, Calcutta, under the provisions of West Bengal Premises Requisition and Eviction Ordinance, 1947, in regard to the said three rooms in the west wing of the first floor of the aforesaid premises. Shortly thereafter, on December 11, 1947, another order was made by the first land acquisition collector in regard to the said rooms under the said Ordinance. The Appellant''s allegation is that after the said order of requisition one Santosh Chand Sucheti who, according to the Appellant, is an employee of Hindusthan Motor Works, Limited, was put in possession of the requisitioned premises. The Appellant moved the Board of Revenue against the said order of requisition. On February 23, 1948, the said orders of requisition were set aside by the Board of Revenue inter alia on the ground that it was suspected that said orders of requisition were obtained by misrepresentation. On March 5, 1948, the Appellant wrote a letter to the Government for possession of the requisitioned premises. This was followed by another letter, dated June 21, 1948, written by Messrs. B.M. Bagaria, solicitors, purporting to act on behalf of the Appellant. On June 30, 1948, the first land acquisition collector wrote to Messrs. B.M. Bagaria to the effect that a reference had been made to the Government in this behalf. On August 10, 1948, another letter was written by the first land acquisition collector to the Appellant for fixation of rent of the requisitioned premises. This was followed by another letter, dated August 19, 1948, proposing an amicable settlement of the compensation to be paid for the requisitioned premises. On September 20, 1948, the Appellant issued a notice u/s 80 of the CPC on the State Government claiming restoration of possession of the requisitioned premises and damages. On November 23, 1948, a suit being suit No. 1336 of 1948 was filed by the Appellant''s brothers for partition of certain properties including the said premises No. 11, Vivekananda Road. On November 30, 1948, the land acquisition collector wrote a letter to the Appellant informing him that compensation for the requisitioned premises has been fixed at Rs. 65 per month. In the said partition suit an official receiver was appointed on December 3, 1948. On June 10, 1949, the first land acquisition collector wrote to the Appellant''s solicitor for a discussion as regards the restoration of possession of the requisitioned premises. This was followed by another letter, dated November 30, 1949, for settling an estimate of costs to be incurred for the filing of a suit for recovery of possession of the requisitioned premises. It appears that thereafter on account of disputes between the brothers no steps were taken for filing a suit for recovery of possession of the requisitioned premises. On August 29, 1950, the official receiver asked the Appellant to obtain directions from the Court in this behalf. In pursuance of this request the Appellant made an application for directions from the Court on December 21, 1950.

In the meantime, on October 31, 1950, an order of requisition was made by the assistant secretary, Government of West Bengal, u/s 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (W. Ben. V of 1947), requisitioning the aforesaid three rooms in the south-west wing of the said premises No. 11, Vivekananda Road which was alleged to be in the possession of Santosh Chand Sucheti. On November 30, 1950, a notification was published in the Calcutta Gazette. On December 19, 1950, a copy of the order of requisition aforesaid was served on the official receiver. The latter sent a copy of this notice to the Appellant. On January 22, 1951, the Appellant moved this Court for the issue of a writ of certiorari for quashing the order of requisition made on October 31, 1950, and obtained the present Rule. This Rule was heard by Bose, J. and by his order, dated May 5, 1951, the Rule was discharged. The Appellant has accordingly preferred this appeal.

Mr. Deb, Learned Counsel appearing on behalf of the Appellant, has contended that the order of requisition was really made in the interest of Santosh Chand Sucheti who is alleged by the Appellant to be an employee of Hindusthan Motor Works, Limited, and that the order is mala fide.

In support of his contention Learned Counsel has drawn our attention to the events which preceded the said order of requisition. He has also referred us to the definite allegations made by his client in the petition under Article 226 of the Constitution wherein it was stated that the requisition was not made bona fide and that Santosh Chand Sucheti was put in possession on the strength of the first order of requisition made in November, 1947, and has since continued in possession. It was pointed out that the allegations made in the affidavit were vaguely denied in the affidavit-in-opposition filed on behalf of the State. It was also pointed out that in the affidavit-in-opposition on behalf of the State it was generally stated that requisition was made for the purpose of housing an officer of the State Government. It was also pointed out that the order of requisition did not specify the particular public purpose for which the order of requisition was made.

Bose, J. has observed that though the facts of this case raise a suspicion in the mind of the Court, the affidavits, read in the light of the events which preceded the present order for requisition, do not prove that the order for requisition was made mala fide.

It must be remembered that the burden of proving whether an order for requisition is mala fide or not rests on the party alleging it. The events referred to above and the statements in the affidavits to which our attention has been drawn do not, in my opinion, necessarily lead to the conclusion that the order for requisition was mala fide. It must be observed that the Government entered into negotiations with the Appellant for taking steps for evicting Santosh Chand Sucheti who was in wrongful occupation of the premises. It also appears that no effective steps could be taken for evicting Santosh Chand Sucheti because the Appellant and his brothers fell out and the necessary directions could not be obtained from the Court requiring the official receiver to take steps in this behalf. It also appears from the judgment of Bose, J. that at the time of the hearing of the application under Article 226 of the Constitution, a letter was produced on behalf of the State which showed that the order for requisition was made for accommodating an inspector in the employment of the Education department of the State. In this Court the learned Advocate-General who appeared on behalf of the State offered to produce the file for inspection by the Learned Counsel for the Appellant. This offer was not accepted. In these circumstances, it is, in my opinion, difficult to hold that the view taken by Bose, J. is not correct. The first contention raised on behalf of the Appellant must therefore fail.

It has also been contended on behalf of the Appellant that the order for requisition was invalid because the materials on record do not show that the requisition was made for a public purpose. It was contended that the question whether a requisition has been made for a public purpose or not is justifiable and the Court is required to investigate this matter on an application made under Article 226 of the Constitution.

Bose, J. was of the opinion that this issue was not a justifiable one and in this view he did not go into the question whether the requisition was in fact made for a public purpose or not.

The question, therefore, arises whether, where an order for requisition is made under the Act, it is open to the Court to enquire on an application under Article 226 of the Constitution whether in point of fact the requisition was made for a public purpose.

The material portion of Section 3(2) of the Act is in these terms:

Whenever it appears to the State Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing requisition such property.

This is followed by a proviso which contains an exception in favour of premises used exclusively for the purpose of religious worship. We are not concerned with the proviso in the present case. On a plain reading of Section 3(2) the question whether a requisition order is made for public purpose or not depends on the satisfaction of the State Government. This question was considered by this Court in the case of A.C. Mohamed and Another Vs. Sailendra Nath Mitra, . In that case a Bench of this Court (Harries, C.J. and Banerjee, J.) in a case of requisition u/s 3 of the present Act came to be of the opinion that the question whether the premises were required for a public purpose or not depended entirely on the satisfaction of the State Government.

This question also came to be considered in the case of Province of Bombay Vs. Kusaldas S. Advani and Others, (C.W.N.), which was a case of a requisition u/s 3 of the Bombay Land Requisition Ordinance (Ordinance V of 1947). The relevant portion of that section was in these terms:

If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by an order in writing requisition land for any public purpose.

The majority view in the case cited was that the question whether there was factual existence of a public purpose was not justifiable by the Court but depended entirely on the subjective satisfaction of the State Government.

In this connection, I may refer to the following observations of Das, J. at p. 716:

Where the legislature leaves it to an executive authority to form an opinion on or to be satisfied about such a matter, as a condition for the exercise of any power conferred on it, and to act upon such opinion, what is condition precedent is not the actual existence of the matter but the subjective opinion or satisfaction of the executive authority that it exists.

In the case of A.K. Gopalan v. The State of Madras (1960) S.C. (C.W.N.) 407 which was a case of detention u/s 3(2) of the Preventive Detention Act, 1950, where the relevant words were:

the Central Government or the State Government, if satisfied, it was held that the question of satisfaction of the Central Government or the State Government was entirely subjective.

It is, however, contended that the effect of Article 31(2) of the Constitution and item No. 33 in List I and item No. 36 in List II of the Seventh Schedule of the Constitution is to make the existence of public purpose justifiable. Reliance is placed on a Bench decision of this Court in West Bengal Settlement Kanungoe Co-operative Credit Society Ltd. Vs. Mrs. Bella Banerjee and Others, in support of the contention that the existence of a public purpose is a justifiable issue.

The case cited related to a notification u/s 4 of the West Bengal Land Development and Planning Act (W. Ben. XXI of 1948). The material provisions of this Act may be summarised. Section 4 empowers the State Government to declare, by a notification in the official gazette, that an area specified in the notification is a notified area, if it is satisfied that such land or such area is needed or is likely to be needed for a public purpose.

Section 6 provides for a declaration by the State Government that any land within the notified area is needed for a public purpose. Section 8 then provides that a declaration u/s 6 is conclusive evidence of the land being needed for a public purpose. The expression "public purpose" is defined in Section 2(d). In the case cited it was urged that the effect of Article 31(2) of the Constitution entitled the Court to investigate the question whether the provisions contained in Section 6 and Section 8 related to the existence of a public purpose and that as such the relevant portions of Section 6 and Section 8 to the contrary effect were ultra vires or not. I may refer to the observations of Harries, C.J. at p. 800:

It might be contended that where it is said that if a State Government is satisfied that land is required for a public purpose there is no objective test and therefore the satisfaction of the State Government would conclude the matter. That might or might not be the true construction of such words. But since the Constitution came into force we have to consider whether such legislation is permissible or not.

In repelling the contention urged by the learned Advocate-General in that case that the satisfaction of the State Government is not justifiable, Harries, C.J. further observed at p. 799 as follows:

But it seems to me clear from Clause (2) of Article 31 and the three items in the three lists of the Seventh Schedule to which I have referred that it is open to the Courts to scrutinise Acts empowering Government to acquire property compulsorily and to consider whether or not such Acts go beyond the powers given to the various Legislatures by the Constitution.

The above passages and certain others occurring in the said decision merely lay down that the existence of a public purpose is justifiable in order to judge the constitutionality of the legislation in question in the light of the express provisions of Article 31(2) of the Constitution. Article 31(2) of the Constitution, it may be pointed out, provides that no property shall be taken possession of or acquired for public purposes under any law which does not provide for payment of compensation. The fundamental requirement of the Article, it may be conceded, is existence of a public purpose and it is this fact which renders the factual existence of a public purpose dependent on the satisfaction not of the Government but of the judiciary.

It may be observed that the West Bengal Land Planning and Development Act, 1948, was passed within 18 months of the Constitution without the requisite certificate from the President. As such, this piece of legislation could not be regarded as existing law and excepted by Clause (5) of Article 31 from the operation of Clause (2) of Article 31 with the result that the constitutionality of the legislation could be gone into by the Court.

The position is, however, different in the present case which relates to the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947. This Act was passed beyond 18 months of the Constitution and as such was an existing law within the meaning of Article 31(5) of the Constitution. The constitutionality of this Act could not be canvassed and the reasons which impelled a Bench of this Court in Bella Banerjee''s case already cited, to hold that the existence of public purpose is justifiable do not apply to the facts of this case. 26. This position was accepted as correct by a Bench of this Court (Harries, C.J. and Banerjee, J.) in the case of Sudhindra Nath Dutta v. Sailendra Nath Mitra (1950) 87 C.L.J. 140.

It was pointed out that the amending Act IV of 1949 has amended Section 3(2) of the Act and has added the following words:

either with or without any or all of the furniture, if any, in such premises after the word premises.

It was contended that the effect of the amending Act which was passed within 18 months of the Constitution was to entitle the Court to consider the constitutionality of the entire Section 3(2) of the Act. In my opinion this argument cannot be accepted. The amending provision deals with matters which are severable'' from the parent provisions of the Act. The constitutionality of the parent Act cannot, therefore, be questioned in the light of Article 31(2) of the Constitution (see The State of Bombay Vs. Heman Santlal Alreja, .

Our attention was drawn to two later decisions of Bose, J., in the cases of Abdul Hamid v. The State of West Bengal (1952) 89 C.L.J. 268 and Phanibhusan Mondal Vs. B.L. Ghose and Others, . These decisions proceed on Bella Banerjee''s case referred to above and on a Bombay case to which I shall refer hereafter. I have already pointed out that Bella Banerjee''''s case is distinguishable and as such the decisions of Bose, J. rest on unsound foundations. In my opinion, therefore, on a true construction of Section 3(2) of the Act the factual existence of a public purpose depends entirely on the subjective satisfaction of the State Government and is not justifiable. The view taken by Bose, J., in the judgment appealed from is, therefore, correct. The second contention raised on behalf of the Appellant must, therefore, fail.

It was, further, contended that the omission to specify the public purpose in the order for requisition renders the order invalid. The reason suggested is that such a specification of the public purpose is necessary in order to enable the person whose property has been requisitioned to call in question the validity of the order in appropriate proceedings. In my opinion, this is hardly a valid ground for holding that the specification of the public purpose is requisite. The Act does not expressly contain any such provision. It is always open to a party to obtain the requisite information by appropriate means. The fact that an appeal is provided for in Section 8 of the Act does not render the specification of the public purpose necessary. The appeal provided for in Section 8 has a very limited scope and has no reference to the nature of the public purpose for which the requisition was made. I have already pointed out that the factual existence of a public purpose is not justifiable. Section 6 of the Act permits the State to use the requisitioned premises for any purpose it may deem expedient. I, therefore, fail to see any valid ground for holding that mere omission to specify the public purpose in the order for requisition renders the order invalid. Reliance is, however, placed on the decision in the case of The State of Bombay Vs. Mohanlal Kapur, . In this case the order for requisition dated December 12, 1950, was in these terms:

Whereas, on enquiry it is found that the premises specified below had become vacant on or after the month of April, 1950, now, therefore, in exercise of the powers conferred by Clause (a) of Sub-section (4) of Section 6 of the Bombay Land Requisition Act, 1948, the Government of Bombay is pleased to requisition the said premises.

It was held by a Bench of the Bombay High Court that the order for requisition was bad inasmuch as it did not state the purpose of the State or any other public purposes for which the requisition was made. It was observed by Chagla, C.J. that the existence of the public purpose was the foundation of the proceedings and an omission to specify the purpose rendered the order for requisition invalid.

The decision cited is clearly distinguishable. In the first place, in the order for requisition which I have quoted there was no mention at all of the existence of any purpose, State or public. In the second place, the language of Section 6(4) of the Bombay Act is different from the language of the West Bengal Act with which we are concerned. Section 6(4) of the Bombay Act runs as follows:

Whether or not an intimation is given under Sub-section (1) and notwithstanding anything contained in Section 5 the State Government may by order in writing (a) requisition the premises for the purpose of the State or any other public purpose and may deal with the premises for any such purpose in such manner as it may appear to it to be expedient.

It must be noted that Section 6(4) does not use words like "if the "Provincial Government is satisfied" or "if in the opinion of the "Provincial Government". The section, as it stands, contemplates the existence of a public purpose or a purpose of the State as requisite for the making of an order for requisition. In the two decisions of Bose, J. to which I have referred, it does not appear that the attention of the learned Judge was drawn to the difference in the language between the Bombay Act and the West Bengal Act. In my opinion, for the reasons given, it is not necessary that the order for requisition should specify the public purpose for which the order was made. A mere statement in the order of requisition that the premises are needed or are likely to be needed for a public purpose is sufficient. The third ground raised on behalf of the Appellant must, therefore, fail.

For the reasons given above, this appeal fails and is dismissed with costs of the hearing before this Bench. Certified for two counsel.

Debabrata Mookerjee, J.

I agree.