The Dominion Of India And Another vs Shrinbai A. Irani And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 154 of 1953

Decision Date: 14 May, 1954

Coram: Natwarlal H. Bhagwati, Mehar Chand Mahajan, B. Jagannadhadas

The case was styled The Dominion Of India And Another versus Shrinbai A. Irani And Another and was decided on 14 May 1954 by the Supreme Court of India. The judgment was authored by Justice Natwarlal H. Bhagwati, who sat with Justices Mehar Chand Mahajan and B. Jagannadhadas, forming the Bench. The petitioner in the matter was identified as the Dominion of India and another, while the respondents were Shrinbai A. Irani and another. The citation of the decision appears as 1954 AIR 596 and 1955 SCR 206, with additional references listed as R 1955 SC 765 (33) RF 1956 SC 105 (6) MV 1971 SC 530 (374) F 1983 SC 259 (18) RF 1987 SC 117 (40) RF 1992 SC 81 (11). The operative statutory provision involved was the Requisitioned Land (Continuance of Powers) Ordinance, 1946, specifically clauses two paragraph three and three of that Ordinance. The headnote recorded that three shoprooms had been requisitioned on 15 April 1943 under the Defence of India Rules, and the requisition order stated that the property would remain requisitioned for the duration of the present war and six months thereafter, or for a shorter period as specified by the Food Controller of Bombay. The Court held that, on a plain grammatical reading of clauses two paragraph three and three of Ordinance XIX of 1946, any immovable property that was subject to a requisition order made under the Defence of India Act continued to be subject to requisition until the Ordinance itself expired, regardless of whether the original requisition order was limited or indefinite. The Court further explained that while ordinarily a non obstante clause should closely align with the operative portion of a section, it need not be co‑extensive if it functions to limit the clear terms of the enactment.

The judgment was filed under the civil appellate jurisdiction as Civil Appeal No. 154 of 1953, being an appeal by special leave against the judgment and decree dated 8 January 1953 rendered by the High Court of Judicature at Bombay in Appeal No. 117 of 1952, which arose from Suit No. 235 of 1949 in that High Court. The Government of India was represented by the Attorney‑General, M. C. Setalvad, and the Solicitor‑General, C. K. Daphtary, assisted by Porus A. Mehta, on behalf of the appellants. The respondents were represented by counsel N. A. Palkhivala and S. P. Varma. The judgment was pronounced on 14 May 1954, and Justice Bhagwati delivered the opinion of the Court. In his introductory observation, Justice Bhagwati noted that this appeal, taken on special leave from the Bombay High Court decision, raised a concise point concerning the construction of clause three of the Requisitioned Land (Continuance of Powers) Ordinance, 1946. The underlying suit that gave rise to this appeal had been commenced by the first respondent against the appellants and the second respondent, seeking the delivery of vacant and peaceful possession of three shop units located on the ground floor of the premises known as “Irani Manzil.” The first respondent owned the immovable property that had been requisitioned on 15 April 1943 by the Collector of Bombay exercising powers under rule 75‑A(1) of the Defence of India Rules, together with the Government Defence Co‑ordination Department notification No. 1336/OR/1/42 dated 15 April 1942. The requisition order, identified as Order No. M.S.C. 467/H, declared the necessity of securing public safety and efficient prosecution of the war, and directed that possession of the property be delivered immediately to the Food Controller, Bombay, subject to the condition that the property would remain under requisition for the period of the present war and six months thereafter, or for a shorter period as specified.

The first respondent had initiated a suit against the appellants and the second respondent, seeking vacant and peaceful possession of three shops located on the ground floor of the premises known as “Irani Manzil.” The first respondent asserted that she was the owner of the immovable property, which had been requisitioned on 15 April 1943 by the Collector of Bombay. The requisition was made under the authority of rule 75‑A(1) of the Defence of India Rules together with the Government Defence Co‑ordination Department Notification No. 1336/OR/1/42 dated 15 April 1942. The order of requisition, identified as Order No. M.S.C. 467/H, stated that it was necessary for public safety and the efficient prosecution of the war to requisition the property listed in the accompanying schedule. The order directed the Collector, M. A. Faruqui, to requisition the property and to command that possession be delivered immediately to the Food Controller, Bombay, subject to the condition that the property would remain under requisition for the duration of the present war and for six months thereafter, or for a shorter period as may be specified by the Food Controller.

The requisitioned premises were utilized to house Government Grain Shop No. 176. On 30 July 1946 (letter dated 17 August 1946), the Controller of Government Grain Shops, Bombay, wrote to the first respondent informing her that the validity of the requisition order was to expire on 30 September 1946 and requesting that the Department be allowed to remain as tenants of the premises. The first respondent, through her counsel, replied on 27 August 1946, offering the tenancy to the Department on certain terms. Those terms were not accepted, yet occupation of the premises continued beyond 30 September 1946. The first respondent thereafter complained that the occupation persisted after the requisition period had ended and that there were plans to transfer the shops to a private party without her involvement. By a letter dated 29 August 1947, her counsel gave the Collector of Bombay a notice to vacate the shops, granting two clear calendar months for the vacancy and requesting delivery of peaceful, vacant possession. On 1 October 1947, the Controller of Government Grain Shops wrote to the first respondent indicating that the second respondent was being handed over Government Grain Shop No. 176 and seeking her consent for an electric connection to be installed by the second respondent. The first respondent refused to give consent and protested the contemplated action. Subsequently, the Collector of Bombay, in a letter dated 15 January 1948, informed the first respondent that the requisition of the shops was being continued beyond 30 September 1946.

By virtue of Act XVII of 1947, the possession of the shops had been transferred to the second respondent, and because the second respondent already held vacant possession, the first respondent could not be granted peaceful and vacant possession. Subsequent correspondence occurred between the first respondent’s counsel and the Collector of Bombay. In those letters the Collector acknowledged that the shops had indeed been sub‑let to the second respondent, but he argued that the original purpose of the requisition was to maintain essential supplies. Since the second respondent continued to fulfil that purpose, the Collector maintained that the first respondent was not entitled to peaceful and vacant possession of the premises. Consequently, the first respondent instituted a suit in the original side of the High Court of Judicature at Bombay, designated as Suit No. 235 of 1949, in which she sought both vacant and peaceful possession of the premises and compensation for the alleged wrongful use and occupation until possession could be delivered to her. The appellants were named as defendants No. 1 and No. 2, while the second respondent was impleaded as the third defendant. The appellants contested the suit; the second respondent neither filed a written statement nor contested the proceedings.

The first respondent put forward several contentions. She asserted that the requisition order had expired, rendering the Government’s possession unlawful. She further argued that the order had been issued for a specific purpose, and because that purpose no longer existed, the order should be considered inoperative. She also claimed that after August 1947 the user of the property was not the Dominion of India, but the State Government, and that the requisition order had ceased to operate under Act IX of 1951. The trial Judge, Mr. Justice Coyajee, accepted all these arguments and decreed in favour of the first respondent, granting her the relief sought.

The appellants appealed the trial decision, and the Court of Appeal upheld the trial decree. The appellate court addressed only the narrow issue of whether clause 3 of Ordinance No. XIX of 1946 had the effect of extending the requisition order. It affirmed the trial court’s finding that clause 3 did not provide any further extension of the requisition’s duration, and it declined to consider the additional questions that had been raised before the trial court, all of which had been decided in the first respondent’s favour. Unsatisfied with this judgment, the appellants sought leave to appeal to the Supreme Court, but the High Court denied their application. The appellants then obtained special leave to appeal under article 136 of the Constitution. It was undisputed that the Defence of India Act, 1939 (XXXV of 1939), together with the rules made thereunder, was slated to expire on 30 September 1946, and that various immoveable properties had been requisitioned under the powers conferred by sub‑rule I of rule 75A of the Defence of India Rules. The expiration of the Act and its rules would have terminated those requisitions, releasing the properties, unless a continuation was effected by subsequent emergency legislation.

In the circumstances before the Court, it was observed that certain immovable properties had been taken over under the authority granted by sub‑rule I of rule 75A of the Defence of India Rules. All of the requisition orders that had been issued under that rule were scheduled to terminate automatically when the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder ceased to operate on 30 September 1946, at which point the properties would have been released from requisition. However, an emergency arose which made it necessary to preserve some of the powers that had previously been exercisable under the Act and its rules. Consequently, the Governor‑General, exercising the power conferred by section 72 of the Government of India Act as it stood on 26 September 1946, issued Ordinance No. XIX of 1946. The preamble of that Ordinance explained that the emergency required the continuation of certain powers in relation to land that would, upon the expiry of the Defence of India Act, remain subject to any requisition made under the rules. The Ordinance then set out a definition, stating that “requisitioned land” meant immovable property which, at the moment the Defence of India Act expired, was still subject to a requisition made under the rules made under that Act. Clause 3 of the Ordinance provided that, notwithstanding the expiry of the Act and its rules, all such requisitioned lands would continue to be subject to requisition until the Ordinance itself expired, and that the appropriate Government might use or deal with the land in any manner it considered expedient. From the language of the preamble and the terms of clause 3, the Court concluded that the purpose of the Ordinance was to address the impending lapse of the Defence of India Act and its accompanying rules. The effect of the Ordinance was to keep in force those requisition orders that would otherwise have ended with the expiry of the Act and the rules, thereby preserving the powers previously exercised under the Act and allowing the continuance of the requisition of the immovable properties that had been taken over. The argument advanced before the Court was that clause 3 was intended only to extend the life of those specific requisition orders that were set to become ineffective on the date of the Act’s expiration, and not to affect any other orders whose termination was governed by separate limitations. Thus, the Court understood that the ordinance’s clause 3 was directed solely at the continuation of the requisitions that would have otherwise ceased because of the expiry of the Defence of India Act and its rules.

Accordingly, the interpretation of clause 3 of the Ordinance was held to encompass only those requisition orders that would have ceased to be operative and come to an end solely because the Defence of India Act, 1939 and the rules made thereunder were expiring. It was expressly held that clause 3 did not extend to orders whose operative life was limited by their own terms, such that they were destined to terminate ipso facto on the date of the Act’s expiration. The latter category of orders, the Court observed, would have terminated because the orders themselves contained a limitation on the period of duration, and their termination was not dependent on the expiration of the Act and the rules. Consequently, those orders were not affected by clause 3 of the Ordinance.

The Court further explained that this construction of clause 3 was reinforced by the non obstante clause inserted in the provision, which read: “Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder.” The non obstante clause was relied upon to support the submission that only the orders which would have ceased to be operative because of the Act’s expiry were intended to be continued under clause 3. The argument possessed considerable force and was accepted by both the trial Court and the Court of Appeal. It was recognised that, absent the non obstante clause, the ordinary wording of the Ordinance could have been understood to cover the order that was in dispute.

The Court noted that the preamble, insofar as it could be used for this purpose, indicated that the Ordinance was enacted to provide for the continuation of certain powers concerning land that was subject to any requisition effected under the Act and the rules. Moreover, the definition of “requisitioned lands” in clause 2(3) also embraced immovable property that, at the moment the Defence of India Act, 1939 expired, was subject to any requisition made under that Act and the accompanying rules. Clause 3, therefore, applied to all such requisitioned lands, and, given the definition, covered immovable properties that were under requisition at the time of the Act’s expiration and were to remain under requisition until the Ordinance itself expired.

Applying a plain and grammatical construction to these provisions, the Court found it evident that once an immovable property was subject to a requisition on 30 September 1946—the date on which the Defence of India Act expired—that property continued to be subject to requisition until the Ordinance’s expiry, regardless of whether the underlying requisition order was of limited or indefinite duration. The sole criterion, according to the Court, was whether the immovable property in question was, on 30 September 1946, subject to any requisition that had been effected under the Act and the rules.

In this case, the Court explained that the plain grammatical construction indicated that any immovable property which, on 30 September 1946, was subject to a requisition made under the Defence of India Act, 1939 and its rules, would remain subject to that requisition until the Ordinance expired. The argument advanced by the other side sought to overturn this construction by invoking the non obstante clause. It was contended that the non obstante clause limited the operation of clause 3 of the Ordinance only to those situations where a requisition order would cease to be operative solely because the Act and the rules expired on 30 September 1946. According to that line of reasoning, if on that date there existed a requisition order whose own limited term was set to expire on 30 September 1946, the non obstante clause would shield that order from the effect of clause 3, thereby preventing its continuation until the Ordinance’s expiry. The argument further asserted that the legislature could not have intended to include such orders because they would terminate due to their inherent limited duration rather than because the Act and the rules ended, and consequently no provision was necessary to keep them in force. While the Court recognised the persuasive force of this argument, it observed that, although a non obstante clause is normally expected to closely mirror the operative portion of a provision, it does not invariably have to be co‑extensive with that operative part. A non obstante clause cannot diminish clear statutory language that, on a plain grammatical reading, admits only a single interpretation. In such circumstances, the clause must be read as a clarification intended to provide caution, not as a restriction on the scope of the operative provisions.

The Court further held that regardless of any presumed or expressed intention of the legislature when enacting Ordinance No XIX of 1946, the wording of clause 3, read together with the definition of “requisitioned land” contained in clause 2(3), is unambiguous. The language clearly encompasses all requisitioned lands—that is, all immovable properties which, on 30 September 1946, were subject to any requisition made under the Act and the rules—without distinction as to whether the requisition was for a limited period or for an indefinite period. Consequently, the Court concluded that it was not within the jurisdiction of the judiciary to speculate about the intended coverage of clause 3 when the only reasonable construction of its terms is that every such requisitioned property falls within its ambit.

The Court observed that the requisition orders made under the Act and its accompanying rules were intended to remain effective until the Ordinance itself expired. It emphasized that any governmental measure that interferes with a person’s personal liberty or property rights must be construed narrowly and with great caution. Nevertheless, despite this strict approach to interpretation, the Court held that the plain language of clause 3 of the Ordinance unmistakably covered every immoveable property which, on 30 September 1946, was subject to any requisition effected under the Act and its rules, regardless of whether the requisition was for a limited term or for an indefinite period. The Court further explained that the legislative purpose was to preserve the authority’s powers for the full duration of the emergency legislation. Moreover, even those requisition orders that were scheduled—whether by accident or by design—to terminate on 30 September 1946 would cease not only because their fixed term ended on that date but also because the Act and the Rules themselves expired on the same day. Consequently, such orders fell squarely within clause 3 when read together with the definition contained in clause 2(3) of the Ordinance, and the explicit terms of the Ordinance continued those orders until the Ordinance’s own expiry.

The Court noted that it was not required to pass judgment on the fairness of each individual case. It acknowledged that there might be situations in which the Ordinance operated to the prejudice of owners of requisitioned land. In those circumstances, the Court recognized that the appropriate Government possessed the power to grant necessary relief by releasing the immoveable property from requisition. However, the judiciary’s role was limited to that point; once it was established that a legislative measure had been lawfully enacted and applied to the specific situation, the courts were bound to give that measure its legitimate effect, unless there was clear evidence of bad faith or an abuse of power. The Court emphasized that judicial intervention could not substitute for executive action in providing such relief.

Accordingly, the Court concluded that both the trial Court and the Court of Appeal had erred in holding that clause 3 of the Ordinance did not continue the requisition order in question. At the close of oral arguments, counsel for the petitioner—identified only as Mr Palkhivala—urged the Court to consider that his client was a modest landlady whose immoveable property was of small value and that an order of remand would subject her to further harassment and costs. He further informed the Court that he had specifically requested the Court of Appeal not to limit its decision to the narrow issue of interpreting clause 3, but to address all the matters that had been raised before the trial Court. The Court of Appeal, however, declined this request and confined its judgment to the single point concerning clause 3, stating that it was unnecessary to examine the additional issues raised by counsel. The Court expressed regret that the Court of Appeal did not entertain the broader request, and noted that the judgment of the Court of Appeal on those additional points was not available for review.

The Court observed that the appellate court had addressed only those issues on which the trial court had previously ruled in favour, and had left untouched a number of other matters that the trial court had also considered. Because of this omission, the Court found it necessary to remit the case back to the appellate court, directing that the appeal be decided on every point that the trial court had examined. The Court expressed regret that the first respondent was forced to confront the appellants, who treated the proceeding as a test case. The appellants argued that the dispute must be litigated in full because it allegedly affected a series of other cases and involved substantial property interests, as claimed by counsel before the trial court. The Court stated that it did not wish to pass judgment on the appellants’ policy of selecting such test cases. Its only concern was the hardship suffered by the first respondent, who had been defeated on the preliminary issue. That preliminary issue had earlier been decided in her favour by both the trial court and the appellate court. While the Court declined to award costs to the first respondent, it stressed that fairness required each party to bear its own costs in both the present proceedings and in the appellate forum. Consequently, the Court allowed the appeal, set aside the decree issued by the appellate court, and ordered that Appeal No. 117 of 1952 be remanded for a fresh hearing. The appellate court was instructed to determine finally all remaining issues after hearing both parties and to render a final judgment on those matters. No order as to costs was made in either the present court or the appellate court, and the appeal was therefore allowed. The agents appearing for the parties were recorded as R. H. Dhebar for the appellants and R. A. Gagrat for the first respondent.