The State of Bombay vs Bhanji Munji and Anr.

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 12 October, 1954

Coram: Mehr Chand Mahajan, Vivian Bose

In the matter styled The State of Bombay versus Bhanji Munji and another, decided on the twelfth day of October in the year 1954, the Supreme Court of India heard a bench comprising Justice Mehr Chand Mahajan and Justice Vivian Bose, with Justice Bose delivering the opinion of the Court. The judgment that follows is intended not only to resolve the issues raised in Civil Appeals numbered one hundred forty-six and one hundred forty-seven of the year 1952, but also to address the matters common to all the appeals that arise from three separate petitions filed in the Bombay High Court seeking mandamus under article two hundred sixty-six of the Constitution. The High Court had granted those writs, and the State of Bombay subsequently filed appeals against the orders. The factual background is that the Governor of Bombay, through the Assistant Controller of Accommodation, issued requisition orders under section six paragraph four sub-paragraph a of the Bombay Land Requisition Act of 1948 in the cases numbered one hundred forty-five and one hundred forty-six of 1952, and under section five paragraph one in the case numbered one hundred forty-seven of 1952, thereby taking possession of premises belonging to the three respondents. The central question posed to the Court was whether those requisition orders exceeded the authority conferred by law, that is, whether they were ultra vires. The orders were challenged on several grounds, the foremost of which concerned their alleged conflict with articles nineteen sub-clause one f and thirty-one sub-clause two of the Constitution. The respondents comprised either owners or tenants of the premises that had been requisitioned. In the appeal numbered one hundred forty-five of 1952, the respondents were an uncle and his nephew; the uncle, who is identified as the first respondent, occupied the premises as a tenant, while the nephew and his family lived with the uncle in the same requisitioned dwelling. In the appeal numbered one hundred forty-six of 1952, the premises were held by a trust, with the first and second respondents acting as trustees, and a third respondent claiming to be a licensee residing on the property. The State of Bombay asserted that the third respondent was in fact a tenant, although this point was rendered immaterial by an assurance given by the learned Attorney-General that the petitioners’ possession would not be disturbed on account of the present proceedings. In the appeal numbered one hundred forty-seven of 1952, the sole respondent was a private limited company that occupied the requisitioned premises as a tenant for the purpose of conducting its business. The Bombay Land Requisition Act of 1948 was originally scheduled to expire in April 1950, but its continuance was secured by the passage of Bombay Act second of 1950. Subsequent amendments to sections five and six were effected by Bombay Act thirty-nine of 1950. Because those amendments were enacted after the Constitution had come into force and because the life of the principal Act was extended post-Constitution, it was contended that the provisions were subject to article nineteen sub-clause one f and article thirty-one sub-clause two, on the ground that the restrictions imposed on the right to hold, acquire, and dispose of property were neither reasonable nor in the public interest, and further because the Act failed to require that any such restriction be justified by a public purpose. The Court therefore began its analysis by concentrating on the appeals numbered one hundred forty-five and one hundred forty-six of 1952, which involved tenants and licensees.

In this case, the Court observed that the provisions of article 19 clause (1) sub-paragraph (f) were not applicable to tenants and licensees. The Court referred to the earlier decisions in The State of West Bengal v. Subodh Gopal Bose ([ 1954] S.C.R. 587) and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. & Others ([1954] S.C.R. 674). In those cases, the majority of the Judges agreed that article 19(1)(f) and article 31 dealt with different subjects and covered distinct fields. Although there was some discussion about the exact nature and scope of the difference, every Judge concurred that the two articles did not overlap. The Court therefore did not feel the need to revisit the detailed distinctions. It was sufficient, the Court said, to note that article 19(1)(f) read with clause (5) presupposes the existence of property that can be enjoyed and over which rights may be exercised; otherwise the reasonable restrictions contemplated in clause (5) could not be applied. If no property existed that could be acquired, held, or disposed of, then no restriction could be placed on the exercise of the right to acquire, hold, or dispose of it. Since clause (5) envisions the imposition of reasonable restrictions on those rights, the article must assume that such property exists. The Court stated that this principle had been decided in A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88), where it was held that the freedoms guaranteed by article 19 concerning a citizen’s person presuppose a free citizen and cease to exist when the citizen is deprived of liberty through preventive or punitive detention. In a similar manner, when there is a substantially total deprivation of property already held and enjoyed, the analysis must shift to article 31 to determine the justification for such deprivation.

The Court also addressed the argument that the rule regarding article 19(1)(f) should apply only when there is a total deprivation of property, and that any remaining vestige of a right would keep article 19(1)(f) in play. That contention had already been answered in substance by the decision in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. & Others ([1954] S.C.R. 674). The Court explained that the two articles concerned substantial and substantive rights, not illusory or imaginary titles. When every form of enjoyment that normally accompanies an interest in property is removed, leaving only the bare shell of title, article 19 does not become applicable. The Court quoted the judgment in the same case, page 734, stating: “By substantial deprivation is meant the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that one must seek.” Applying this principle to the present matter, the Court observed that the right to occupy the premises had been lost, as also the

The Court observed that the lessee had lost the right to occupy the premises as well as the right to transfer, assign, let or sub-let, leaving only the bare husk of a leasehold title—a forlorn hope that the force of the law might somehow revive it before the lease expires. That observation led the Court to consider article 31 of the Constitution. The Act, which provides for compensation in section 8, required the Court to determine whether the requisition had been made for a public purpose. The principal legislation, being pre-Constitutional, was enacted at a time when fundamental rights were not yet part of the legal framework; consequently the original statute did not expressly require a statement of public purpose. Nevertheless, the preamble of the Act declared that “whereas it is expedient to provide for the requisition of land,” and the amended sections 5 and 6 now contain the words “for the purpose of the State or any other public purpose.” The Court noted that the then Chief Justice, Mahajan J., had explained in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga ([1952] S.C.R. 889, 940) that it is unnecessary for the statute to spell out the precise purpose for which property is taken, provided that the overall tenor and intention of the Act make it clear that the acquisition is for State or public purposes and that the intention is to benefit the community at large. Relying on that precedent, the Court held that the Act was not invalid on the ground of lacking an express public-purpose clause. The Court then turned to the specific requisition orders, holding that they could be upheld only if they complied with the provisions of the Act. The first issue was whether the orders were made for a State or public purpose as required by sections 5(1) and 6(4). The Court examined Civil Appeals Nos. 145 and 146 of 1952, which contained similar orders issued on different dates. Each order began: “Whereas, on inquiry, it is found that the premises specified below had become vacant on/or after the month of May 1950. Now, therefore, in exercise of the powers conferred by clause (a) of sub-section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay XXXIII of 1948) the Government of Bombay is pleased to requisition the said premises etc.” The petitions in these two cases were filed on 30 April 1951 and 4 April 1951 respectively. Affidavits in reply were filed on 18 June and 19 June, and in August 1951 the Government of Bombay issued a further order stating: “In continuation of the order dated … the Government of Bombay is pleased to declare that the premises mentioned in that order were requisitioned for a public purpose, namely housing a person having no housing accommodation on the date of the said order cited above.” It was argued that this later specification of purpose was of no avail and that …

The Court observed that the statement that the purpose mentioned later was merely an after-thought and therefore untrue was not convincing. It was held that it is not essential for an order of requisition to spell out the purpose of the requisition. The Court noted that omitting the purpose in the order is undesirable because, when the purpose is not stated, the authority must demonstrate the purpose by other means, which may expose the authority to the type of allegations presented in this case and creates a risk that a court might find those allegations credible. Nevertheless, the Court concluded that the failure to include the purpose in the requisition order is not fatal so long as the facts establishing the purpose are proved to the Court’s satisfaction by alternative evidence. The Court further referred to the principle set out in its earlier decision in Biswabhusan Naik v. The State of Orissa and applied that principle to the present circumstances.

The Court found that, in the matters before it, there was clear proof of a public purpose. Such proof was contained in the affidavits submitted on behalf of the State and in the subsequent orders that had been quoted, which identified the purpose as the provision of housing for persons without any accommodation. At the relevant time, the Court noted, Bombay was experiencing an acute housing shortage, largely caused by the arrival of large numbers of refugees. This shortage raised concerns about public decency, public morals, public health and the risk of lawlessness and crime, thereby arousing the public conscience on humanitarian grounds. The Court described a class of opportunistic landlords who were profiting from the misery of those lacking decent shelter, and observed that the efficiency of the administration was jeopardised because government servants themselves were unable to secure suitable accommodation. The Court stated that modest measures to address the problem had proved ineffective, making it necessary for the government to adopt more drastic steps, which it undertook in the interest of the public welfare. Accordingly, the Court concluded that the requisition had a clear public purpose and yielded an undeniable public benefit. The Court also recorded that the opposing argument attempted to narrow the issue by focusing on individual cases and by isolating passages of the reply affidavit. That argument relied on facts taken from the affidavit. The Court then recounted that, in 1947, the Government of Bombay enacted the Bombay Land Requisition Ordinance and invited applications for the allocation of vacant premises from the general public, which suggested a general public purpose for the public good. However, the effective operation of the scheme required the cooperation of landlords and tenants, who were legally required to notify vacancies as they arose. The Court found that, in many instances, such notifications were not made, resulting in the suppression of a substantial amount of accommodation that ought to have been available for distribution. In response, the Government introduced a new category of beneficiaries—individuals who supplied information about so-called “suppressed vacancies” and “nominal occupation.” The Government decided to allocate the discovered vacant premises to the first informant, provided that the informant genuinely needed accommodation. The Court noted that the allottees whose appeals were before the Court belonged to this class of informants.

The Court observed that the allottees in the present appeals belonged to the group of first informers who disclosed “suppressed vacancies” and “nominal occupation.” Even after introducing this class, the Court noted that applications continued to outnumber the available premises, leaving insufficient accommodation for government servants and other government uses. Consequently, in 1949 and again in 1950, the Government announced that it would no longer consider further applications from the general public and would limit allotments to government and other public purposes. The Court explained that, at the time of the present allotments, the policy was not aimed at benefiting the public at large but rather at preserving a privileged pool for government officers and servants. To encourage landlords and tenants to disclose vacant premises, the Government offered the discovered vacancies to the first informers who had identified them, provided those informers genuinely needed accommodation. The Court said this approach was intended to demonstrate that suppressing vacancies would not be rewarded, thereby prompting compliance with the legal requirement to notify vacancies, and ultimately to increase the amount of housing available to the privileged class of government personnel. The Court further noted that when the decision to reward informers was taken in 1947 and when the Bombay Land Requisition Act was enacted in 1948, there was no necessity for a public-purpose justification, a point that formed part of the argument presented.

The Court then turned to the State’s affidavit, which asserted that the legislation’s purpose was to achieve an equitable distribution of accommodation. The State’s statement read that, because a vacancy would not have been discovered without the informant’s intimation, it was fair, just, and conducive to equity to allot the premises to the first informer who genuinely needed housing. The High Court, and subsequently the parties, argued that reserving a share of the scarce vacancies for informers—regardless of whether their need matched that of other homeless persons—was not equitable and fell outside the legislative aim of equitable distribution. The Court rejected this line of reasoning, observing that the Constitution empowers requisitions only for a public purpose, and in this case the purpose was to provide shelter to the homeless. Accordingly, if a vacant dwelling was allotted to a person who was genuinely homeless, the public purpose was fulfilled. The Court acknowledged that a particular allotment could be challenged on grounds such as fraud, discrimination, nepotism, bribery or corruption, but none of those allegations were raised in the present proceedings. The only contention was that there was no public purpose, a contention the Court found unpersuasive. Finally, the Court affirmed that the Government must be granted a wide discretion to implement the policy of the Act, especially when the number of vacant units is limited and the number of homeless persons is large, and that the Courts should not intervene merely because alternative schemes might exist.

Because the number of vacant premises was small while the number of homeless persons was large, the Court observed that some selection inevitably had to be made. It held that, provided the selection was carried out on broad principles and in a reasonable manner, the Courts could not intervene merely because alternative methods were conceivable or even preferred. The responsibility to choose among the various possible schemes rested with the Government. In exercising that discretion, the Government was required to balance several conflicting considerations. These included the urgency of providing shelter, the necessity of acting swiftly, the public expense that would be incurred by conducting lengthy investigations into the private affairs of thousands of applicants, the need to preserve public morale by protecting an honest landlord who complied with his duties from the unfair competition of a dishonest person who concealed vacancies and earned illicit profits, and the equitable maxim that “equity helps the vigilant.” After weighing these factors, the Court concluded that neither the requisition order nor the allotment order in Civil Appeals Nos. 145 and 146 of 1952 exceeded the Government’s authority.

The Court then examined a further issue that arose in Civil Appeal No. 146 of 1952. The statute permitted requisition only of premises that fell within the definition given in section 4(3). It was contended that the premises involved were not “premises” within that meaning and therefore could not be requisitioned. The dispute turned on whether the premises were “let” or “intended to be let.” The trial judge placed the burden of proof on the State Government and instructed its counsel to produce evidence if it wished to meet that burden. The Government responded that it did not intend to present any evidence. The Court understood this stance as an attempt by the Government to obtain a ruling on the allocation of the burden, a question that repeatedly arose and could not wait for the presentation of evidence by both sides. The Attorney-General assured that the petitioners’ possession would not be disturbed; the Government merely sought a decision on the point of law. Because no contrary evidence was offered, the trial judge accepted the factual findings contained in the petitioners’ affidavit and decided in their favour. On appeal, the Chief Justice of the Bombay High Court and Justice Bhagwati upheld the trial judge’s decision. The Court, however, found that the burden had been wrongly placed. The petitioners had alleged that the Government had issued an illegal order, yet the order, on its face, conformed to the statutory authority and therefore was not illegal. Consequently, the onus was on the petitioners to demonstrate illegality, especially since the question of whether they had let or intended to let the property was a matter of their special knowledge. In view of the Attorney-General’s assurance, the Court saw no need to pursue the matter further, dismissed the appeal, and ordered that no costs be awarded. The Court also addressed Civil Appeal No. 147 of 1952, where the requisition order under section 5(1) raised the same issues. Although no public purpose was initially mentioned, a subsequent order dated August 1951 identified the purpose as providing housing for a person without accommodation. Relying on the same reasoning, the Court held that a public purpose existed and that the requisition orders were valid. The question of whether a mandamus could now be issued became unnecessary. Accordingly, Civil Appeals Nos. 145 and 147 were allowed, the corresponding petitions were dismissed, and no order as to costs was made.

In this matter the Court observed that the question of whether the petitioners had intended to let the building or any part of it was a factual issue over which the petitioners possessed special knowledge. The Court, however, held that because the learned Attorney-General had given an assurance that the petitioners’ possession would not be disturbed, it was unnecessary to examine that factual issue further. On that basis the Court ordered that the appeal be dismissed, relying on the assurance that had been given, and directed that no order as to costs be made at all. The Court then turned to Civil Appeal No. 147 of 1952, in which the requisition order was made under section 5(1). The same questions that had arisen in the earlier appeals resurfaced. As in the two preceding cases, the requisition order itself did not state a public purpose; however, a subsequent order dated August 1951 identified the purpose as providing accommodation for a person who was otherwise without housing. Applying the reasons already expressed, the Court held that a public purpose was indeed disclosed and therefore concluded that the requisition orders were valid. The Court further noted that the remaining issue, namely whether a writ of mandamus could now be issued, became unnecessary to consider in view of the earlier determinations. Accordingly, Civil Appeals Nos. 145 and 147 of 1952 were allowed and the petitions in those two appeals were dismissed, with the same statement that no order as to costs would be made. With respect to Civil Appeal No. 146 of 1952, the Court dismissed the appeal because of the undertaking given by the learned Attorney-General, and consequently left the order of the High Court undisturbed. In light of that undertaking the Court saw no need to decide whether a mandamus could or should have been issued, and reiterated that this appeal was dismissed without any order as to costs. Finally, the Court concluded that the appeal was dismissed.