State of Bombay vs Ali Gulshan

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 229 of 1953

Decision Date: 4 October, 1955

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam, Chandrasekhara Aiyar

In the matter titled State of Bombay versus Ali Gulshan, decided on 4 October 1955, the Supreme Court of India heard the appeal before a bench comprising Natwarlal H. Bhagwati, Syed Jaffer Imam, Aiyar N., and Chandrasekhara Das, Sudhiranjan Bhagwati, Natwaral H. Aiyar, T. L. Venkatarama Imam, and Syed Jaffer. The appellant was the State of Bombay and the respondent was Ali Gulshan. The judgment was delivered on the same date, 4 October 1955, and recorded under the citation 1955 AIR 810 and 1955 SCR (2) 867. The dispute involved the Constitution of India, specifically Article 31 relating to public purpose, and the Bombay Land Requisition Act of 1948 (Bombay Act XXXIII of 1948), particularly section 6, sub-section (4)(a). The question before the Court was whether the Government of Bombay could, under clause (a) of sub-section (4) of section 6, requisition certain premises for the purpose of “housing a member of the staff of a foreign consulate” and whether that purpose qualified as a public purpose within the meaning of the Act. The headnote of the decision stated that the Court held the requisition to be a valid exercise of the State’s power, characterising the purpose as a public purpose. The Court explained that the requisition was made more as a State purpose than as a Union purpose, and that “other public purpose” is a distinct category separate from Union and State purposes. Accordingly, the acquisition of property by the State, except for Union purposes, falls within the competence of the State under item 36 of the State List. The Court observed that an undertaking may serve State, Union, and general public purposes simultaneously, and that even if the accommodation of a consular staff member could be seen as a Union purpose, it does not cease to be a State or general public purpose. Consequently, the requisition was deemed valid. The Court further advised that statutes should not be interpreted in a way that renders words surplusage.

The civil appeal, numbered 229 of 1953, was filed under Article 132(1) of the Constitution, challenging the judgment and order dated 16 December 1952 of the Bombay High Court in Appeal No. 110 of 1952. Counsel for the appellant included the Attorney-General of India, accompanied by two additional counsel, while the respondent was represented by counsel named Rajinder Narain. The judgment was delivered by Justice Chandrasekhara Aiyer, who framed the central issue as whether the State of Bombay was entitled, under the specified clause of the Bombay Land Requisition Act, to requisition premises for “housing a member of the staff of a foreign consulate” as a public purpose. This issue formed the basis of the Court’s consideration in the appeal.

In this appeal the controversy began with a writ petition filed under article 226 of the Constitution by the respondent in the Bombay High Court, seeking an injunction against the State of Bombay so that it would not proceed with a requisition of certain premises. The petition was placed before Justice Tendolkar, who allowed the State to rely on the contention that the requisition was made for a “public purpose” as defined by the Bombay Land Requisition Act. On appeal, however, the High Court held that although the requisition was described as being for a public purpose, the order was nevertheless invalid because a public purpose must fall either within the domain of the Union or within the domain of the State, and the accommodation required for a member of a foreign consular staff was characterised as a Union purpose, thereby exceeding the powers of the State. Clause (a) of sub-section (4) of section 6, when reduced to the necessary wording, states: “The State Government may, by order in writing, requisition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient.” The Court did not challenge the constitutionality of the Act or its legislative competence. Since the premises were needed to house a consulate staff member, there was no doubt that the intention was a public purpose. The ultimate source of authority for requisition or acquisition of property is found in article 31 of the Constitution, which requires that such taking be for a public purpose and that compensation be paid. Article 31 applies with equal force to legislation enacted by the Union and by the States. Items 33 and 36 of List I and List II of the Seventh Schedule respectively empower Parliament and State Legislatures to make laws concerning acquisition or requisition of property. The reasoning of the learned appellate judges can be summarised as follows: a public purpose cannot exist outside the categories of Union purpose or State purpose; the phrase “any other purpose” in the statute must be read ejusdem generis with “the purpose of the State.” Consequently, providing accommodation for a foreign consular staff member is a “purpose of the Union” and not a “purpose of the State.” The Court could not accept this view from either perspective. Item 33 of the Union List refers to “acquisition or requisitioning of property for the purposes of the Union.” Item 36 of the State List deals with “acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.” Item 42 of the Concurrent List likewise speaks of “the purpose of the Union or of a State or for any other public purpose.”

In this case, the Court observed that the statutory language referred to “the purpose of the Union or of a State or for any other public purpose.” By reading the three entries together, the Court found that the legislature had contemplated three distinct categories of purpose: a Union purpose, a State purpose, and any other public purpose. The Court noted that while every Union purpose and every State purpose were necessarily public purposes, there were situations where the purpose of an acquisition or requisition was public but did not fall strictly within either the Union or State categories. For example, the Court explained, if private benefactors acquired sites for hospitals or educational institutions, such acquisitions served a public purpose even though they were not directly Union or State purposes. The Court clarified that when a State purpose or a Union purpose is discussed, it implies duties and obligations imposed on the State or the Union to carry out particular actions for the benefit of the public or a segment of the public.

The Court further explained that cases in which the State acquired or requisitioned property to enable the creation of utilitarian institutions or schemes that had public welfare at their core would fall within the third category of “any other public purpose.” With respect, the Court indicated that the ejusdem generis rule of construction, which the lower court had applied to restrict the phrase “any other public purpose” to a purpose that was also a State purpose, had little relevance here. The Court stressed that the rule should be applied only within narrow limits and that broad or comprehensive words must be given their full natural meaning unless they are clearly intended to be restrictive. Moreover, the Court stated that the rule requires a distinct genus containing more than one species before it can be applied. If the words “any other public purpose” in the statute were intended to mean only a State purpose, they would become surplusage, and courts should avoid such a construction.

Even assuming that the law recognized only two purposes—State purpose and Union purpose—the Court found it difficult to classify the provision of accommodation for the staff of a foreign consulate as a Union purpose rather than a State purpose. The Court pointed out that Item I-1 in the Union List specified “diplomatic, consular and trade representation” as subjects within Parliament’s legislative competence, and that under article 73 of the Constitution, the Union’s executive power extended to all such matters. The Court argued that securing a room for a consular staff member did not amount to providing for consular representation, and therefore could not be said to be a Union purpose that the State could not legislate upon. The Court recorded that counsel for the respondent conceded that the Union had no duty to provide accommodation for consulate staff, and the Court agreed that the routine duties of a modern consul were to protect the interests and promote the commercial affairs of the State he represented, rather than to enjoy privileges comparable to those of an ambassador.

The Court observed that the ordinary duties of a consul in modern times were to protect the interests and promote the commercial affairs of the State which he represented, and that his powers, privileges and immunities were not comparable to those of an ambassador. It further noted that the trade and commerce of the State that appointed the consul, together with the State in which the consul was located, formed the consul’s principal concern. The Court stated that the State of Bombay was chiefly interested in its own trade and commerce and in the efficient performance of the foreign consul’s duties while he operated within Bombay. Accordingly, the Court was inclined to regard the purpose for which the requisition of a room was made in the present case as more a State purpose than a Union purpose. The Court also reminded that “other public purpose” constituted a separate category for which Bombay could legislate, because the acquisition or requisition of property for purposes other than those of the Union fell within the competence of the State under item 36 of the State List. The Court then considered an alternative viewpoint, explaining that an undertaking might possess three different aspects – it could serve a State purpose, a Union purpose and a general public purpose simultaneously. Even if the requisition of a room for a consular staff member were characterized as a Union purpose, the Court held that this characterization did not eliminate the existence of a State purpose or a general public purpose in the same act. On this basis, the Court concluded that the requisition had been validly made. For these reasons, the Court allowed the appeal, restored the order of Tendolkar J, and directed that costs be paid by the respondent to the appellant throughout.