Sudhindra Nath Datta vs Sailendra Nath Mitra

Harries, C.J.—This is an application for a mandamus directing the respondent to show cause why a mandatory order should not issue for the cancellation of a certain order of requisition made by the respondent as an officer of Govt. There was an alternative prayer for a writ of prohibition prohibiting the respondent from giving effect to a pretended order of requisitioning.

The petitioner is the owner of certain premises known as 13 Ballygunge Circular Road in the. city of Calcutta.

On 22-5-1949, he was served with an order purporting to have been made by Govt. requisitioning the premises 13 Ballygunge Circular Road with the exception of two rooms, a kitchen & certain offices. The notice requisitioning the property did not state the purpose for which the property was required, but it is the case for the petitioner that he went on to the premises at about 3.45 p. m. on May 22nd & he was informed by some officer of Govt. that the premises had been requisitioned as a residence for the Hon''ble Minister of Excise in the Govt. of the State of West Bengal. It is common ground that the Minister did take up residence in these premises & has resided at the premises ever since.

It was contended on behalf of the petitioner that the order of requisition in this case is not warranted by any provision of law. The order purports to have been made under S. 3 (1), West Bengal Premises Requisition & Control (Temporary Provisions) Act, 1947 (Act V (5) of 1947).

That sub-section is in these terms:

Whenever it appears to the Provincial Govt. 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 premises:

Provided that no premises exclusively used for the purpose of religious worship shall be requisitioned; under this section.

The first argument addressed to us was that the requisitioning of premises as a residence for a Minister of the State of West Bengal cannot be regarded as a public purpose.

I am very doubtful as to whether it is open to this Court to go into this question at all. In the case of ''Wijeyesekera v. Festing'', 1919 A. C. 646, their Lordships of the Privy Council were called upon to construe precisely the same words as appear in the sub-section which I have read. The words in the Privy Council case were:

Whenever it shall appear to the Governor that land in any locality is likely to be needed for any public purpose, it shall be lawful for the Governor to direct etc.

Their Lordships were of opinion that the decision of the Governor that the purpose was a public purpose for which premises were required was final & could not be questioned in any Court. If that case applies then the opinion of the Provincial Govt. that housing a Minister was a public purpose would be final & could not be questioned by this Court. However, even if this Court can question the matter, it appears to me quite clear that housing a high Minister of State is clearly a public purpose. It is in the public interest that Ministers of the State of West Bengal should have suitable accommodation. How can they be expected to give of their best if they have to live in discomfort & squalor. It is suggested that the Minister concerned was a member of the Scheduled Caste & had never been accustomed to live in premises of this kind. A Minister of State is entitled to accommodation consistent with his position & the dignity of his office & it appears to me that requisitioning part of a house in Ballygunge as a residence for a Minister is clearly a public purpose & therefore it cannot be said that the Act could not apply.

It was then suggested that requisitioning premises was a judicial act & before a requisitioning order could be made notice would have to be given to the petitioner & the latter had a right to be heard. It appears to me that requisitioning under this Act is clearly an executive or an administrative Act. It is true that the Bombay High Court in a recent case have taken the contrary view, but I am unable to follow that case. A Bench consisting of five Judges of this Court held that the power of the executive under the West Bengal Security Act to make an order for detention, could not be questioned. In that case the words were "The Provincial Govt. if satisfied" that a certain state of affairs existed. The Bench held that if the Govt. was honestly satisfied the Court could not go into the ground of the satisfaction. It was never suggested by the Bench that the act of ordering the detention of a man was a judicial act which could not be made without a judicial enquiry. Within the last few days the Supreme Court have considered the right of the Madras Govt. to detain a person likely to act in a manner prejudicial to the maintenance of law & order. In that case the order was made under an Act which provided that an order of detention could be made if the Central or State Govt. was satisfied that certain circumstances existed. It is to be noted that the Supreme Court have never suggested that an order could not be made without some form of judical enquiry.

It appears to me that it is quite impossible for this Court to follow the view of Bombay having regard to the decisions of mis Court & the very recent decision of the Supreme Court. That being so, 1 do not think it is necessary to say anything more upon this question.

It was then suggested that the order was ''mala fide'' & the facts upon which this contention is made are set out in the petition. It seems that these premises had been previously requisitioned for the residence of a former Excise Minister, a certain Dwarka Nath Barori. It is said that this Minister did not pay the rent for the premises & had to be sued in the Court at Alipore. Eventually he left for Pakistan & abandoned his occupation of the premises. It is said that he actually made over possession to another member of the Scheduled Caste Mr. Panchanan Das Choudhury, who it is said sub-let the premises to various tenants. The suggestion is that Panchanan Das Choudhury, somehow influenced Govt. to requisition these premises in 1949 for the then Excise Minister, though Barori had left the premises in 1947. It is said that the hand of Panchanan Das Choudhury is seen in the fact that the Govt. did not requisition the whole of the premises occupied by Barori, but only the part not then occupied by some friend of Panchanan Das Choudhury. The fact that the part was not requisitioned it is said suggests the complicity of Panchanan Das Choudhury in the matter & we are asked to infer that the act of Govt, was ''mala fide''.

There is no evidence at all that Panchanan Das Choudhury caused this order to be made & these facts, even if true, can raise nothing more than a suspicion. We arc urged to hold that the facts must be true because Govt. never called for information as to the nature of the premises which they could have done under S. 3 (2). I imagine that the Govt. would not call for information if they had the information. & they may well have had the information relating to these premises in their possession because a Minister had actually occupied the premises previously.

It is suggested that the order itself shows signs that it could not be honest. The order as originally drafted required possession to be given on May 24 at 11-30 a. m. The date, 24th May, was crossed out & 22nd inserted, & the time 11-30 a. m. crossed out & 3-30 p. m. inserted. All I can infer from these alterations is that there was some urgency in the matter & it may well be that the Minister had no accommodation & that accommodation had to be found for him immediately. In any event, I cannot infer dishonesty or ''mala fides'' from these corrections in the order. If these corrections could suggest dishonesty I should have imagined that if it was necessary to alter the date & time, a new order would have been drawn up; so that attention would not be drawn to the fact that the date & time had been altered.

There is no evidence at all before us from which we could infer that a residence was not required for the Minister. If material had been placed before us upon which we could hold that the Minister was already comfortably housed, we might have inferred, although I do not say we would have inferred, that the order was not honest. There is however nothing to suggest that the Minister did not require this property immediately as a residence & therefore it is quite impossible for this Court to hold that the order was ''mala fide''.

Panchanan Das Choudhury who apparently does not wish well of the petitioner may have informed Govt. that these premises were available & his motives may not have been all that they should be. But that does not mean that Govt. having received the information acted other than perfectly, properly & honestly. It seems to me that it is quite impossible to say that this order was mala fide'', because obviously it was made to provide the Excise Minister with a residence. After the order was made the Excise Minister took up his residence in the premises & has remained there ever since. It seems to me quite clear that the facts show that the order must have been made honestly & that being so, it cannot be suggested that the order was ''mala fide.''

Very recently it was pointed out by the Supreme Court that orders of detention cannot be set aside though there exist strong grounds for suspecting that the orders were not bona fide. Before a Court can hold that orders of Govt. are ''mala fide'' facts must be established upon which the Court can hold affirmatively that an order was not honestly made or not made under a particular provision. It is not sufficient to place facts which raise a suspicion that the order might not have been mads honestly. In this case though the facts relating to Panchanan Das Choudhury show that he might have been concerned for his own purposes in letting Govt. know that this property was available, nevertheless there is nothing to show that Govt. was influenced in any way against the petitioner & made this order dishonestly.

It was urged that we should be satisfied that the Govt. or the officer responsible had applied his mind to the matter & after doing so had made this order. We cannot possibly hold otherwise having regard to the fact that the order was made to house a Minister & once it was made the Minister took possession & remained in the premises ever since. On the facts we are perfectly satisfied that the order cannot be challenged on the ground that it was made ''mala fide'' or on the ground that it was not warranted by the provisions of the Act.

Lastly, it was contended that the Act under which the order was made, namely. Act V (5) of 1947 is ''ultra vires'' the Constitution of India. Reference is made to Art. 19(1) (f) of the Constitution which provides:

All citizens shall have the right:

XXX or XXXX

(f) to acquire, hold & dispose of property." CI. (5) of this Article provides:

Nothing in Sub-Cls. (d), (e) & (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interest of any Scheduled Tribe.

The argument is that the Act imposes such restrictions on the right to acquire, hold & dispose of property as cannot be described as reasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe.

In my judgment this Article has no application to eases where a state or any person is empowered to deprive another of his property. The relevant Article in my opinion is Art. 31. Cl. (1) of that Article reads:

No person shall be deprived of his property save by authority of law.

If a validly enacted law gives the State or a person a right to deprive another of his property, then such deprivation would be in accordance with Art. 31 of the Constitution.

Cl. (2) of Art. 31 is in these terms:

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 such 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 principles on which, & the manner in which, the compensation is to be determined & given.

This clause clearly allows legislation of the type of Act V (5) of 1947, provided compensation for the property taken is either fixed by the statute or the statute specifies the principles & the manner in which the compensation is to be determined. It is common ground that this statute under which the Govt. acted does comply with the provisions of Cl. (2) as to compensation, & if the case was governed by Art. 31 we should be bound to hold that Act was ''intra vires'', because it came precisely within the provisions of Cls. (1) & (2) of Art. 31.

Cl. (5) of Art. 31 however provides:

Nothing in CI. (2) shall affect the provisions of any existing law other than a law to which the provisions of CI. (6) apply.

Cl. (6) applies to enactments made not more than eighteen months before the commencement of the Constitution. The enactment before us was made in 1947 well over two years before the Constitution, came into force. Therefore the provisions of Cl. (2) requiring compensation would not make this Act ''ultra vires'' even if no compensation was provided for as it had been passed more than eighteen months before the Constitution came into force.

In my opinion it is quite clear that Art. 19 (1) (f) of the Constitution has no application to cases where a State, authority or person has compulsorily acquired property or obtained possession of property. The relevant provisions are to be found in Art. 31 & it appears to me when tested by the provisions of Art. 31 this Act is ''intra vires'' & legal. What the Act does is to deprive the person of possession of the property & it cannot be said to be an enactment restricting his right to acquire, hold & dispose of the property as that phrase is used in Art. 19 (1) (f). It does far more than restrict his'' right to hold the property. It deprives him at least temporarily of possession of the property altogether. That being so, the case falls within Art. 31 & the legislation to my mind is ''intra vires''.

No other point was taken & that being so this petition fails & I would dismiss it with costs. Certified for two Counsel.

The interim injunction is discharged.

Banerjee, J.

I agree.