Case: The Dominion Of India And Another Vs. Shrinbai A. Irani And Another

Bhagwati, J.1. This appeal by special leave from a judgment of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 raises a short point as to the construction of Cl. 3 of the Requisitioned Land (Continuance of Powers) Ordinance, 1946.2. The suit out of which this appeal arises was commenced by the first respondent against the appellants and the second respondent for delivery of vacant and peaceful possession of the three shops situated on the ground floor of the premises known as "Irani Manzil". The first respondent was the owner of the said immovable property which had been requisitioned on 15-4-1942 by the Collector of Bombay in exercise of the powers conferred upon him by R. 75-A (1)of the Defence of India Rules read with the Notification of the Government, Defence Co-ordination Department, No. 1336/OR/1/42 dates 15-4-1942.The order of requisition was in the following terms:"Order No. M. S. C. 467/H-Whereas it is necessary for securing the public safety and the efficient prosecution of the war to requisition the property specified in the schedule hereto appended .......... I. M. A. Faruqui, the collector of Bombay, do hereby requisition the said property and direct that possession of the said property be delivered forthwith to the Food Controller, Bombay, subject to the following conditions:1. The property shall be continued in requisition during the period of the present war and six months thereafter or for such shorter period as may be specified by the Food Controller. Bombay...... "The said premises were used for the purpose of housing the Government Grain Shop No. 176.3. By a letter dated 30-7-1946/17-8-1946 the Controller of Government Grain Shops, Bombay wrote to the first respondent that as the validity of the requisitioning order was to expire on 30-9-1946, the first respondent should allow the Department to remain as her tenants in respect of the premises. The first respondent replied by her Advocates letter dated 27- 8-1946 offering the tenancy to the Department on certain terms. These terms were not accepted but the occupation of the premises continued even after 30-9-1946 and the first respondent complained about such occupation after the period of requisition of the said shops had come to an end and also complained that it was contemplated to transfer the said shops to a private party or concern without any reference to her in the matter.4. By her Advocates letter dated 29-8-1947 she gave to the Collector of Bombay a notice to vacate the said shops giving him two clear calendar months time and asking him to deliver over to her peaceful and vacant possession of the said shops. The Controller of Government Grain Shops, Bombay, wrote to the first respondent on 1-10-1947 that the second respondent was being handed over the Government Grain Shop No. 176 and that she should give her consent to the electric connection to be carried out in the said shops by the second respondent. The first respondent refused to give her consent and protested against the contemplated action. The Collector of Bombay by his letter dated 15-1-1948 intimated to the first respondent that the requisitioning of the said shops was continued after 30-9-1946 by Act 17 of 1947 and as possession of the said shops had been handed over to the second respondent vacant possession of the same could not be given to the first respondent.5. Further correspondence ensued between the first respondents attorneys and the Collector of Bombay in the course of which the Collector of Bombay admitted that the said shops had been sublet to the second respondent but contended that the maintenance of essential supplies was the purpose for which the premises in question were requisitioned and that as the second respondent continued to serve the same purpose the first respondent was not entitled to peaceful and vacant possession of the premises. The first respondent therefore filed a suit on the original side of the High Court of Judicature at Bombay being Suit. N. 235 of 1949 claiming vacant and peaceful possession of the premises as also compensation for wrongful use and occupation thereof till delivery of possession was given over to her.6. The appellants were impleaded as defendants 1 and 2 in the said suit and the second respondent was impleaded as the third defendant. The suit was contested by the appellants. The second respondent did not file any written statement nor did he contest the suit.7. The first respondent contended that the requisitioning order had expired, that the property was no longer under requisition and therefore the possession by the Government was wrongful. She next contended that the order was made for a specific purpose and as that purpose no longer obtained the order was no longer operative. She further contended that after August 1947 the user of the property was not by the appropriate Government, viz., the Dominion of India but was by the State Government. She also contended that the requisitioning order had ceased to be operative by reason of Act 9 of 1951.8. The trial Judge, Mr. Justice Coyajee, upheld all these contentions of the first respondent and decreed the suit. The appellants preferred an appeal against that decision and the Court of Appeal confirmed the decree passed by the trial Court on the short point as to whether Cl. 3 of Ordinance 19 of 1946 had the effect on continuing the requisitioning order. It affirmed the conclusion of the trial Court that there was no further extension of the duration of the requisitioning order by the provisions of cl. 3 of the Ordinance and declined to go into the other questions which had been mooted before the trial court and which had been decided by the trial Court in favour of the first respondent. The appellants not being satisfied with that judgment applied for leave to appeal to the Supreme Court, but the High Court rejected that application. The appellants thereupon applied for and obtained special leave under Art. 136 of the Constitution.9. It is common ground that the Defence of India Act, 1939 (35 of 1939) and the rules made thereunder were to expire on 30-1-1946. Various immoveable properties had been requisitioned in exercise of the powers conferred by sub-r. 1 of R. 75A of Defence of India Rules and all these requisitioning orders would have come to an end and the immovable properties released from requisition on the expiration of the Defence of India Act and the rules made thereunder. The requisitions had to be continued and an emergency arose which made it necessary to provide for the continuation of certain powers therefore exercisable under the said Act and the said rules and the Governor-General in exercise of the powers conferred by S. 72. Government of India Act, promulgated on 26-9-1946 an Ordinance being Ordinance 19 of 1946, the relevant provisions of which may be set out hereunder:"ORDINANCE NO. 19 OF 1946. An Ordinance to provide for the continuance of certain emergency powers in relation to requisitioned land ....... Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the Defence of India Act, 1939 (35 of 1939). expires, is subject to any requisition effected under rules made under that Act, for the continuance of certain powers therefore exercisable under the said Act or the said rules ..... the Government General is pleased to make and promulgate the following Ordinance:2. DEFINITIONS ...........3. "Requisitioned land" means immoveable property which, when the Defence of India Act 1939 (35 of 1939), expires is subject to any requisition effected under the rules made under this Act.......Secn.3. Continuance of requisitions. --- Notwithstanding the expiration of the Defence of India Act, 1939 (35) of 1939), and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient.10. It is clear from the preamble as also Cl. 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act,1939 and the rules made thereunder. All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition. It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immovable properties which had been made thereunder.11. It was therefore argued that those requisition orders which would cease to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued by virtue of Cl. 3 of the Ordinance and Cl. 3 would accordingly cover only such requisition orders as would have ceased to be operative and come to an end with the expiration of the Act and the rules and not those orders which by reason of their inherent weakness such as the limitation of the period of duration expire ipso facto on the date of expiration of the Act and the rules. The latter category of orders, would have ceased to be operative and come to an end by reason of the limitation placed on the period of duration within the terms of the orders themselves and their expiration would not have depended upon the expiration of the Act and the rules and were therefore not touched by Cl. 3 of the Ordinance.12. That this was the true construction of Cl. 3 of the Ordinance was further sought to be supported by the non-obstante clause appearing therein viz "notwithstanding the expiration of the Defence of India Act, 1939 (35 of 1939) and the rules made thereunder". The non-obstante clause was invoked in support of the submission that those orders which would have ceased to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued under Cl. 3 of the Ordinance.13. There is considerable force in the argument and if found favour with the trial court as well as the Court of Appeal. It was recognised that but for the non-obstante clause the plain wording of the Ordinance was capable of covering the order in dispute.14. The preamble in so far as it could be drawn upon for the purpose showed that the Ordinance was being enacted to provide for the continuation of certain powers in relation to land which was subject to any requisition effected under the Act and the rules. The definition of requisitioned lands contained in C. 2(3) also covered immoveable property which when the Defence of India, Act, 1939 expired was subject to any requisition effected under the Act and the rules. Clause 3 of the Ordinance covered all requisitioned lands which having regard to the definition above mentioned covered immoveable properties which when the Defence of India act, 1939 expired were subject to any requisition effected under the Act and the rules and such requisitioned lands were to continue to be subject to requisition until the expiry of the Ordinance.15. On a plain and grammatical construction of these provisions it was obvious that once you had an immoveable property which when the Defence of India Act expired, that is on 30-9-1946, was subject to any requisition effected under the Act and the rules, that immoveable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration. The only test was whether the immovable property in question was on 30-9-1946 subject to any requisition effected under the Act and the rules. This construction was sought to be negatived by having resort to the non-obstante clause which, it was submitted, restricted the operation of Cl. 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and the rules.16. If there was in existence on 30-9-1946 any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and was to expire on 30-9-1946 the non-obstante clause saved that from the operation of cl. 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance is therein provided. Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to be continued.17. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be coextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of ambit and scope of the operative part of the enactment. Whatever may have been the presumed or the expressed intention of the legislating authority when enacting Ordinance 19 of 1946 the words of Cl. 3 read along with the definition of requisitioned land contained in Cl. 2 (3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by Cl. 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939 expired were subject to any requisition effected under the Act and the rules were to continue to be subject to requisition until the expiry of the Ordinance.18. No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.19. We are not here concerned with the equities of individual cases. There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.20. We have therefore come to the conclusion that both the trial Court and the Court of Appeal were in error when they reached the conclusion that Cl. 3 of the Ordinance had not the effect of continuing the requisition order in question.21. Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand could be to put her to further harassment and costs. He pointed out to us that he had particularly requested the Court of Appeal not to decide the appeal merely on the short point in regard to the construction of Cl. 3 of the Ordinance, but to decide it on all the points which had been canvassed before the trial Court. But the Court of Appeal turned down his request and decided the appeal only on that point stating that it was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it. It is to be regretted that the Court of Appeal did not respond to Mr. Palkhivalas request, but we have not had the benefit of the judgment of the Court of Appeal on those points which found favour with the trial Court and which were not considered by the Court of Appeal and we cannot help remanding the matter to the Court of Appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court.22. It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.23.

Decision:
1[ds]It is clear from the preamble as also Cl. 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act,1939 and the rules made thereunder. All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition. It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immovable properties which had been madea plain and grammatical construction of these provisions it was obvious that once you had an immoveable property which when the Defence of India Act expired, that is on 30-9-1946, was subject to any requisition effected under the Act and the rules, that immoveable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration. The only test was whether the immovable property in question was on 30-9-1946 subject to any requisition effected under the Act and the rules. This construction was sought to be negatived by having resort to the non-obstante clause which, it was submitted, restricted the operation of Cl. 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and thethere was in existence on 30-9-1946 any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and was to expire on 30-9-1946 the non-obstante clause saved that from the operation of cl. 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance is therein provided. Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on 30-9-1946 and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to bedoubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Cl. 3 of the Ordinance covered all cases of immovable properties which on 30-9-1946 were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30-9-1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Cl. 3 read along with the definition in Cl. 2 (3) of the Ordinance and were by the clear terms thereof continued until the expiry of themay be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Court would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala-fides or abuse of power were alleged.It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases and the properties involved would be considerable as alleged by Mr. Seervai before the trial Court. We are not concerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the burnt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of Appeal. We cannot make any order for costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of Appeal.