Case: Lilavati Bai Vs. State of Bombay

2. The petitioner is the widow of one Dharamdas Chelleram, who was a tenant of the premises in, question. The said Dharamdas Chellarm died in November 1951, leaving him surviving his widow and a daughter. The petitioner alleged that she had been occupying the premises in question as a member of her husbands family since 1938 and that the tenant aforesaid had at no material date ceased to occupy the premises. She also alleged that one Narottam Das Dharamsey Patel was a mere lodger who was occupying a portion of the premises by leave and licence of her husband. The said Narottam das had no interest in the premises in question and had as a matter of fact, vacated the portion in his occupation some time in the year 1953. On behalf of the State of Bombay, the respondent it has been stated on affidavit by the Accommodation Officer that it is not a fact that the petitioner resided in the premises in question and that the facts were that the said Dharamdas, the tenant, had vacated the premises in October 1952 and had handed over possession of the premises to the said Ngrottamdas Dharamsey Patel. Hence it is alleged that it was not a fact that at the time of her husbands death in November 1953 the petitioner was residing in the premises in question. These facts had been stanted before the High Court also on an affidavit made in opposition to the petitioners case in the High Court. The petitioners grievance is that towards the end of January 1954 she found pasted on the outer door of the premises an order dated January 21, 1954, said to have been made by the Governor of Bombay and which is said to be the occasion for her moving the High Court of Bombay for a writ of mandamus against the State of Bombay to refrain from giving effect to the aforesaid Order. The Order impugned is in these terms: -"No. RA (1) M-13067Office of the Controller of Accommodation,Jehangir Building, Mahatma Gandhi Road,Whereas, on inquiry it is found that the premises specified below had become vacant in the mouth of October 1952;Now, therefore, in exercise of the powers conferred by clause(a) of sub-section(4) of S.6 ofthe Bombay Land Requisition Act, 1948(Bombay Act XXXIII of 1948) the Government of Bombay is pleased to requisition the said premises for a public purpose, namely, for housing a Bombay State Government servantPremises. -Flat No.3 on the 1st floor of the Building known as Hem Prabha situated at 68, Marine Drive, BombayBy order and in the name of4. The petitioner challenged, the validity of the Order of requisition act out above. Her petition was heard by Tendolkar, J., who by his judgment dated April 21, 1954, dismissed the same. The petitioner moved this Court for an appropriate writ, direction or order under Art. 32 of, the Constitution, challenging the vires of the Act, as also the, legal efficacy of the Order impugned. She also fixed a petition praying for serial leave to appeal from the judgment aforesaid of the Bombay High Court. Both the matters have been heard together and will be governed by this judgement

Reasoning:
1. The Act is thus covered by the saying clause. Cl. 5 (a), being an existing law other than a law to which the provisions of Cl. (6) apply. The Act, therefore would be, valid even if the provisions of Cl. (2) of Art. 31 are not in terms fully satisfied, in so far as the Act did not before its amendment by Act XXXIX of 1950 contain the expression "for a public purpose." As already pointed out, this Court in the case of the State of Bombay v. Bhanji Munji (A) has laid it down that the Act was not invalid even after the commencement of the Constitution simply because it is not provided in express terms that the acquisition or requisition had to be for a public purpose, provided that from the whole tenor and intendment of the Act it could be gathered that the requisition was for a public purpose, and for the benefit of the community at large. The amending Act only made explicit what had been left to be gathered from the whole tenor of the Act, as pointed out by this Court in the case cited above. The argument that the amending Acts, II of 1950 and XXXIX of 1950, required the assent of the President under Cl. (3) of Art. 31 has therefore, no force Act II of 1950, in so far as it affects the present controversy, only extended the life of the Act by two years and Act XXXIX of 1950 only made explicit what was not so in the Act as originally passed, and are not such laws as come within the purview of Cl. (3) of Art. 31 inasmuch as those Acts are merely an extension or explanatory of the substantive Act which is an existing law within the meaning of the Constitution. Clause (3) of Art. 31 in terms applies to a law made by the Legislature of a State, after the commencement of the Constitution; whereas the Act had been passed in its substantive form in April 1948. Hence there is no difficulty in holding that the Act which was good law before the commencement of the Constitution did not become void under Art. 13 of the Constitution, because there was nothing in the Act which was inconsistent with the provisions of Part III of the Constitution. If the Act was good law after the commencement of the Constitution it follows that the amendments aforesaid made in 1950, were equally good law, even though the assent of the President had not been obtainedSecondly, the decision of this Court in 1955-1 SCR 777  : ((S) AIR 1955 SC 41  ) (A) itself has ruled to the contrary with reference to the provisions of Art. 31 (2). We cannot, therefore, go back upon our decision in the case aforesaid. On these considerations the petition under Art. 32 of the Constitution must fail on the ground that no fundamental rights of the petitioner as would entitle her to seek redress from this Court, have been contravenedit is well settled that observations made with reference to the construction of one statute cannot be applied with reference to the provisions of another statute which is not in pari materia with the statute which forms the subject matter of the previous decision. The Judicial Committee was dealing with the provisions of S. 4 (1) ofthe Indian Electricity Act,, which did not contain the words conclusive evidence or any words to that effect. That decision of the Judicial Committee, if it can at all be applied to the Act now before us, is against the petitioner in so far as it has construed the words "opinion of the Provincial Government." Those words or words of similar import appear in the beginning of S5. In the words of the Judicial Committee, those words signify the subjective opinion of the Government and not an opinion subject to the objective tests. The observations quoted above only show that on a proper construction of the provisions of the statute then before the Judicial Committee the opinion of the Government, if it was made non-justifiable, was confined to the question of whether there had been a wilful and unreasonably prolonged default, but did not cover the question of the opinion of Government relating to the obligations imposed by the statute on the licensee, by or under the Act.Hence those observations are absolutely of no assistance to the petitioner on the question of the full implication of the rule making certain matters "conclusive evidence" under the provisions of Ss. 5 and 6 of the ActIn the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise." Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenants occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenants interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenants occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our noticeThe Act has made a specific provision to the effect that the determination on the questions referred to in Ss. 5 and 6 of the Act by the State Government shall be conclusive evidence of the declaration so made. But that does not mean that the jurisdiction of the High Court under Art. 226 or of this Court under Art. 32 or on appeal has been impaired. In a proper case the High Court or this Court in the exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with. But the special powers aforesaid of this Court or of the High Court cannot extend to reopening a finding by the State Government under S. 5 of the Act that the tenant has not actually resided in the premises for a continuous period of six months immediately preceding the date of the order or under S.6 that the premises had become vacant at about the time indicated in the order impugned. Those are not collateral matters which could on proper evidence be reopened by the courts of law. The Legislature in its wisdom has made those declarations conclusive and it is not for this Court to question that wisdomIn our opinion, there is no substance in this contention either.An order like the one passed under S. 6 (4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity.But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioners husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation.The fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under S. 13 of the Act should be erased from the order.But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioners husband had died before the date of the order impugned it could affect only the so called "lodger", who had been on the findings, left in occupation of the premises after October 1952. He has not made any complaint about non-service.The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in question at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of S. 13. In any event, as the, concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order".