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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.