# [1955] 1 S.C.R. 206

- **Citation:** [1955] 1 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1953-01-08
- **Case number:** Civil Appeal No. 154 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-206-373
- **Pages:** 10

## Headnote

206
SUPREME COURT REPORTS
[1955}
THE DOMINION OF INDIA AND ANOTHER
fl.
SHRINBAI A. IRANI AND ANOTHER.
fMEHR CHAND MAHAJAN C.J., s. R. DAS, BHAGWATI,
•
-~ .·
}AGANNADHADAS and VENKATAilAMA AYYAR JJ.]
•
Requisitioned Land (Continuance of Powers)
Ordinance, 1946
(XIX of ]946), els. 2(3) and 3-Efject thereof on the existing requisi-
~
tion order in respect of immotfable property_,_Non obstante clause-
"
Interpretation of.
Three shoprooms were requisitioned on April '15, 1943, under
the
Defence
of India
Rules and the requisition order inter alia
stated .that "the said requisitioned :property shall be continued in
requisition during the period of. present war and six months there~
after or for such shorter period as may be specified by the Food
Controller, Bombay ..... . ~·
Held, that on a plain and grammatical construction of els. 2(3) /-
and 3 ·of Ordinance XIX of 1946, the immoveable property which
when the Defence of India
Act expired on the 30th September,
1946, was subject to any requisition
order
effected under the Act
and
the
rules
thereunder, continued to be
subject to requisition
until the expiry of Ordinance, no matter whether
the
requisit~on
order
to which
the immoveable property
was
subject was of a
limited duration or an indefinite period.
The ordinary rule is that there should
be a close approxima·
tion between ,the non obstante clause and the operative portion
of '>-
the
s~ction but the
non obstante clause need not necessarily and
al.ways .be co-extensive with the operative part if it has the effect
of cutting .down the clear terms of an enactment.
CIVIL
APPELLATE
JuRisDICTION : Civil
Appeal
No. 154 of 1953.
'-
Appeal by Special Leave against the Judgment and
Decree dated the 8th January, 1953, of the High Court
of Judicature at Bombay in Appeal ·No. 117 of 1952
"
arising out of Suit No. 235 of 1949 in the said High f
Court.
M. C. Setalvad, Attorney-General for India, and
C. K. Daphtary, Solicitor-General for
India,
(Porus
A. Mehta, with them) for the appellants.
N. A. Palkhivala and S. P. Varma for respondent
No. 1.
1954. May 14.
The
Judgment of the Court was,... l
delivered by BHAGW AT! J.
s:c.R.
SUPREME COURT REPORTS
BHAGWATI J~-This appeal by special leave from
a judgment, of. the High Court . of
Judicature at
Bombay in Appeal No. H7 of 1952 raises a short point
as to the construction of clause. 3 of the Requisitioned
Land (Continuance of Powers) Ordinance~ 1946.
The suit out of which this appeal arises was commenced by the
first respondent against the appellants and the second respondent for delivery of vac~nt
and peaceful possession of the three shops situated on
·the ground floor of the premises known as "Irani
Manzi!."
The first respondent was the owner of
the
said immovable property which had' been requisitioned
_on the 15th April, 1943, by the Collector of· Bombay
_in exercise of the powers conferred upon him by rule
. '·
75-A(1) of the Defence of India Rules read with the
'
Notification of the Government, Defence Co-ordination
Department, No. 1336/0R/1/42 dated the 15th April,
1942. · The order of requisition was in the following
terms:-
"Order No. M.S.C. 467/H-Whereas it is necessary
·for securing the public safety arid the efficient prose-
. cution of the war to requisition the property specified
~ in the schedule hereto appended .... '. ... I, M.A. Faiuqui,
the Collector of Bombay, do hereby requisition the
said property and direct that possession of the · · said
_property be delivered forthwith to the Food Controller,
. Bombay, subject to the following conditions :-
(1) The property shall be continued in
req~isition
· during the period of the present war and six months
thereafter or for such shorter period as may be specifi-
°' ·ed by the Food Controller, Bombay ............ ,,,"
The said premises were used for the purpose of hous-
. ing the Government Grain Shop No. 176,
By a letter dated the 30th July,· 1946/17th August,
1946, the
Controller of Government Grain
Shops,
. Bombay, wrote to the first res

## Text

206
SUPREME COURT REPORTS
[1955}
THE DOMINION OF INDIA AND ANOTHER
fl.
SHRINBAI A. IRANI AND ANOTHER.
fMEHR CHAND MAHAJAN C.J., s. R. DAS, BHAGWATI,
•
-~ .·
}AGANNADHADAS and VENKATAilAMA AYYAR JJ.]
•
Requisitioned Land (Continuance of Powers)
Ordinance, 1946
(XIX of ]946), els. 2(3) and 3-Efject thereof on the existing requisi-
~
tion order in respect of immotfable property_,_Non obstante clause-
"
Interpretation of.
Three shoprooms were requisitioned on April '15, 1943, under
the
Defence
of India
Rules and the requisition order inter alia
stated .that "the said requisitioned :property shall be continued in
requisition during the period of. present war and six months there~
after or for such shorter period as may be specified by the Food
Controller, Bombay ..... . ~·
Held, that on a plain and grammatical construction of els. 2(3) /-
and 3 ·of Ordinance XIX of 1946, the immoveable property which
when the Defence of India
Act expired on the 30th September,
1946, was subject to any requisition
order
effected under the Act
and
the
rules
thereunder, continued to be
subject to requisition
until the expiry of Ordinance, no matter whether
the
requisit~on
order
to which
the immoveable property
was
subject was of a
limited duration or an indefinite period.
The ordinary rule is that there should
be a close approxima·
tion between ,the non obstante clause and the operative portion
of '>-
the
s~ction but the
non obstante clause need not necessarily and
al.ways .be co-extensive with the operative part if it has the effect
of cutting .down the clear terms of an enactment.
CIVIL
APPELLATE
JuRisDICTION : Civil
Appeal
No. 154 of 1953.
'-
Appeal by Special Leave against the Judgment and
Decree dated the 8th January, 1953, of the High Court
of Judicature at Bombay in Appeal ·No. 117 of 1952
"
arising out of Suit No. 235 of 1949 in the said High f
Court.
M. C. Setalvad, Attorney-General for India, and
C. K. Daphtary, Solicitor-General for
India,
(Porus
A. Mehta, with them) for the appellants.
N. A. Palkhivala and S. P. Varma for respondent
No. 1.
1954. May 14.
The
Judgment of the Court was,... l
delivered by BHAGW AT! J.
s:c.R.
SUPREME COURT REPORTS
BHAGWATI J~-This appeal by special leave from
a judgment, of. the High Court . of
Judicature at
Bombay in Appeal No. H7 of 1952 raises a short point
as to the construction of clause. 3 of the Requisitioned
Land (Continuance of Powers) Ordinance~ 1946.
The suit out of which this appeal arises was commenced by the
first respondent against the appellants and the second respondent for delivery of vac~nt
and peaceful possession of the three shops situated on
·the ground floor of the premises known as "Irani
Manzi!."
The first respondent was the owner of
the
said immovable property which had' been requisitioned
_on the 15th April, 1943, by the Collector of· Bombay
_in exercise of the powers conferred upon him by rule
. '·
75-A(1) of the Defence of India Rules read with the
'
Notification of the Government, Defence Co-ordination
Department, No. 1336/0R/1/42 dated the 15th April,
1942. · The order of requisition was in the following
terms:-
"Order No. M.S.C. 467/H-Whereas it is necessary
·for securing the public safety arid the efficient prose-
. cution of the war to requisition the property specified
~ in the schedule hereto appended .... '. ... I, M.A. Faiuqui,
the Collector of Bombay, do hereby requisition the
said property and direct that possession of the · · said
_property be delivered forthwith to the Food Controller,
. Bombay, subject to the following conditions :-
(1) The property shall be continued in
req~isition
· during the period of the present war and six months
thereafter or for such shorter period as may be specifi-
°' ·ed by the Food Controller, Bombay ............ ,,,"
The said premises were used for the purpose of hous-
. ing the Government Grain Shop No. 176,
By a letter dated the 30th July,· 1946/17th August,
1946, the
Controller of Government Grain
Shops,
. Bombay, wrote to the first respondent' that · as the
validity of .the requisitioning order was to expire on
. the 30th September, 1946,
the first respondent should
). ~. allow th~ Pepa,rtIT?-eJ.?-t . to . · re!f!.ain as. her tenantk . in
respect . of .. the premises_.. The . first .. respondent . replied
:by her advocate's letter dated
t~e 27th August, "1946,
195 ..
The Dominion of
India
and Another
v.
Shrinbai A. Irani
and Another.
Blwgwati].
!'9;4
TM Dominion of
India
afuJ An~thn
.
v.
Shrirlbiii A~ rani
"and Arwth#.
B/uJgwati].
208
SUPREME 'COURT REPORTS
[1955]
offering the tenancy to · the Department on . certain
terms.
These terms were not ·accepted but the occupa"
tion of the premises continued
even after the 30th
September, 1946,
and the first respondent
complained
about such occupation after the period of requisition
of the said shops had come to an end and also complained that it was contemplated to tra~sfer the said
shops to a private· party
or
concern
without
any
reference to her in the matter.
By her advocate's
letter
dated · the 29th August, 1947, she gave to the
Collector of Bombay a notice to vacate the said shops
giving him two clear calendar months' time and asking
him to deliver over to her peaceful and vacant possession of the said shops.
The Controller of Government Grain Shops, Bombay, wrote to the first respond- /
ent
on the 1st
October, 1947, that the
second
respondent was being handed over the Government
Grain Shop No. 176 and that she should . give her
consent to the electric connection to be carried out in
the said
shops by the second
respondent. The first
respondent refused to give her consent . and protested
against
the
contemplated
action. The Collector of
Bombay by his letter dated the 15th January, 1948, ").
intimated to the first respondent that the requisitioning of he said shops was
continued after the 30th
September, 1946, by Act XVII of 1947 and as
possession of the said shops had been handed over to the
second respondent
vacant
possession
of the same
could not be given to the first respondent. Further
·correspondence ensued between
the
first
respondent's
attorneys and the Collector of Bombay in the course
of which the Collector of Bombay admitted that the
said shops had been sublet to the . second respondent
. but
contended that the
maintenance of
essential
,l -.
supplies was the purpose for which the premises in
question
were requisitioned and that as the second
respondent continued to serve the same purpose .. the
' first
respondent was not entitled to· peaceful and
. vacant possession of the premises. The ··first
respondent therefore filed a suit on the original side
of the c
)
.High Court of Judicature at Bombay. being Suit No.
235 of 1949 claiming vacant and peaceful possession
-
-
•
-
..
S.C.R.
SUPREME COURT REPORTS
209
of the premises as also compensation for wrongful use
and occupation thereof till delivery of possession was
given over to her.
The appellants were impleaded as defendants Nos.
1 and
2 in
the said suit and the second respondent
was impleaded as the third defendant. The suit was
contested by the appellants.
The second respondent
did not file any written statement nor did he contest
the suit.
The first respondent contended that the requlSltioning
order had expired, that the property was no
longer under requisition and therefore
the
possession
by the Government was wrongful. She next contended that the order was made for a specific purpose and
as that purpose no longer obtained the order was no
longer operative. She further contended that after
August, 1947, the user of the property was not by the
appropriate Government, viz., the Dominion of India,
but was by the State Government. She also contended
that the requisitioning order had ceased to be operative by reason of Act IX of 1951.
The trial Judge, Mr. Justice Coyajee, upheld all
these cont,.ntions of the first
respondent and decreed
the suit. The appellants preferred an appeal against
that decision and the Court of Appeal confirmed the
decree passed by the trial Court on the short point
as to whether clause 3 of Ordinance No. XIX of 1946
had the effect of continuing the requisitioning order.
It affirmed
the
conclusion of the trial Court that
there was no further extension of the duration of the
requisitioning order by the provisions of clause 3 of
the Ordinance and declined to go into the other questions
which
had
been mooted before the trial
Court and which had been decided by the trial Court
in favour of the first respondent. The appellants not
being satisfied with that judgment applied for lea'e to
appeal to the Supreme Court, but the High Court rejected that application. The appellants thereupon applied
for and obtained special leave under article 136 of the
Constitution.
It is common ground that the Defence of India Act,
1939 (XXXV of 1939), and the rules made thereunder
1954
Thi Dominion of
India and Another
y.,
Shrinbai
A. Irani
and ·Another,
BhagwatiJ.
1954
The ·Dominion OJ
•Jndia and Another
.
"· . .
Shrinbai-A. Irani
·and AnotMi.
Bhagwati].
210
S'QPREME COURT REPORTS
[1955]
were to expire on the 30th. September, 1946. Various
immoveable properties had beeff requisitioned in exercise of the powers conferred by sub-rule 1
of rule 75A
of Defence of India Rules and all these requisitioning
orders would have come to an . end and the immoveable
properties released from requisition on the
expiration
of the Defence of India Act apd the rules made thereunder. These requisitions' had to be continued and an
emergency arose which made it necessary to provide
for the continuation of certain powers theretofore exercisable under the said Act and the said rules and the
Governor-General in exercise of the powers conferred
by section 72 of the Government of India ;'\ct promulgated on the
26th September, 19%,
an Ordinance
being Ordinance No. XIX of 1946, . the relevant provisions of which may be set out hereunder :-
"ORDINANCE NO. XIX OF I946. An Ordinance to provide for the continuance of certain emergency powers in relation to requisitioned land ....... .
Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the
Defence of India Act, 1939 (XXXV .of 1939),
expires,
is subject to any requisition effected under
rules made
under that Act, for the continuance of certain ··powers
theretofore exercisable under the said Act or the said
rules ............ the Governor-General
is
pleased
to
make and promulgate the following Ordinance :-. , ..... .
~ •' ................. .
2. DEFINITIONS ................... .
.
(3) "Requisitioned land" means immoveable pro-
-" .
•
l
perty · which, when ·the Defence of India Act, 1939
1
~
'(XXXV of 1939), expires is subject to any requisition
;
effected under the rules made under this .Act ........... .
Seen.
3. Continuance
of requisitions.-Notwithstanding the expiration of the Defence ·of India Act,
-1939 (XXXV of 1939), and the rules . made thereunder,
all requisitioned lands shall continue to be subject to
requisition until the expiry of this Ordinance and the
appropriate Government may use
or deal' with any -· )
requisitioned land in such manner as may appear to it
·to be expedient."
-
-
•
\
::
:S.C.R.
SUPREME COUR'.f REPORTS
211
It is clear from the preamble as also . clause 3 of the
'Ordinance that the occasion for the
.ena~tment 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 immoveable properties which
had been made thereunder.
It was therefore argued that those
requisition orders
'which would cease to be operative and come to an end
with the expiration of the Act and the rules were · ·the
•only orders which were intended to be continued by
virtue of clause 3 of the Ordinance and clause 3: would
;accordingly cover only such requisition orders as would
have ceased to be operative and come to an end. with
·the expiration of the Act and the rules and not- those
·orders which by reason of their inherent weakness: such
:as the limitation of the period of duration expire· .. ipso
facto on the date of the expiration of the Act and the
·rules. The latter category of orders would have ·ceased
·to be · operative and come to an end by reason ·of the
· Jimitation placed on the period of duration within the
'terms of _the orders themselves and their ·expiration
·would not
have depended upon the expiration· of. the
Act and the rules and were therefore not touched,.- by
clause 3 of the Ordinance. That· this was ·the . true
'.construction of clause 3 of the ·Ordinance was· · further
.. sought to be
supported by the non obstante · dause
:appearing therein, viz., "Notwithstanding the· expiration of the Defence of India Act, · 1939 (XXXV of 1939),
:and the rules made thereunder." The · non· ·obstante
clause was invoked in support of -the submission· that
;those orders which would· have ceased to be operativ.e
<and. come td an end· with the expiration of the Act 'and
··the· rules were the only orders which were intended- to
·;be contiriu~d ·u'n&r Clause 3 of the Ordinance; ·. · ,,, ,.
1954
The Dominion ef
India and Another
v.
Shrinbai A. Irani
,and Another.
Bhagwati].
1954
"TM Dominion of
India and dnoth11
v.
Shrinbai .A. Irani
·and Anotlin',
BhagwatiJ.
212
SUPREME COURT REPORTS
[1955]
There is considerable force in the argument and it
found favour with the trial Court as well as the Court
of appeal. It was recognised that but for the non obstante clause the plain wording of the Ordinance was
capable of covering the order in dispute. The preamble
in so far as it could be drawn upon for the purpose
showed that the Ordinance was being enacted to provide for the continuation of certain powers in relation
to land which was subject
to. any requisition
effected under the Act and
the rules. The definition
of requisitioned lands contained in clause 2(3) also
covered immoveable property which when the
Defence
of India Act,
1939, expired was subject to any requisition effected under the Act and the
rules. Clause 3
of the Ordinance covered all requisitioned lands which
having regard to the definition above mentioned covered immovable properties which when the Defence of
India Act, 1939, expired were subject to any requisition
effected under the Act and the rules and such requisitioned lands were to continue to be subject to requisition until the expiry of the . Ordinance. On a plain
and grammatical construction of these provisions it was
obvious
that once
you
had an immovable
property
which when the Defence of India Act expired, that is
on the 30th September, 1946, was subject to any requisition effected under the Act and the rules, that immovable 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 the 30th September, 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 clause 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
the rules. If there was in existence on the 30th
.September, . 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
-~ )
-
)
'
:I
S.C.R.
SUPREME COURT REPORTS
2B
was to expire on the 30th September, 1946, the non
obstante clause saved that from the operation of clause
3 of the Ordinance and such requisition order could not
continue in operation until the expiry of the Ordinance
as 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 the 30th September,
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.
While recognising the force of this argument it is
however necessary to observe that although ordinarily
there should be a close approximation between the
non obstante clause and the operative part of the section, the non obstante clause need not necessarily and
always be co-extensive 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 that 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 abundant caution and not by way of limiting
the 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 the Ordinance No. XIX of 1946, the words of
clause 3 read along with the definition of requisitioned
land contained in clause 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 clause 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 ntles were 'to continue
1954
The Dominion of
India and Anothn
v.
Shrinbai A. Irani
and Another. ·
Bhagwati].
1954
Thi Dominion of
India and Anothtr
v.
Shrinbai A. lranf
and Another.
iJhagWati·J.
214
SBPREME COURT REPORTS
[1955,J
to be subject · to requisition until the expiry of .the
Ordinance. 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
cpnstruction to be put upon the provisions of this · Ordinance· one
cannot get away from the fact that the express provisions of clause 3 of. the Ordinance covered all cases of
immoveable properties which on the 30th September,
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
reqms1uon
orders, w:hich ,by
accident or. design were to expire on the 30th September, 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 clause 3 read along with definition in clause 2(3)
of the Ordinance and were by the clear terms. · thereof
continued . until the expiry of the Ordinance. We. are
not here concerned with the .. equities of indiyidua,l .cases.
There may be cases in which the Ordinance worked to
the prejudice of the owner of the requisitioned laI)d. In
such cases the necessary relief could . be granted by the
appropriate Government by releasing. the . immoveable
property from requisition.
But the
Courts would be
helpless in the matter. . Once the conclusion was. reached that a partic9lar measure was lawfully enacted by
a legislative authority covering the particular . case in
que,stion 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.
. 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. clause 3 ()f the
Ordinance had .not the effect of continuing .the r,eq11isi-
.tion order in question.
. .
.
.. .
..
Mr .. Palkhivala at tJie close of the arguments appealed to us that his client . was a petty landlady,
~nd .the
immoveable property which she. owned was of .. aq~mall
. value and the result of ap order of remand would,. pe to
put her to further .harassment' and , cqs,ts .. He, pointyd
out to .us that he had . particulady r.equested .the Cpurt
.of appeal not to decide the appeal merely on . the. short
+
-
-
I
+
S.C.R.
SUPREME COUR'f REPORTS
215
point in regard to the construction Of' clause 3 of the
Ordinance, but to decide it on all the points which had
been canvassed before trial Court. But the Court of
appeal turned down his request and dt:cided 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. Palkhivala's 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.
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 brunt 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.
We therefore allow the appeal, set aside the decree
passed by the Court of appeal and remand the Appeal
No. 117 of 1952 for hearing and final disposal by the
Court of appeal on the other points which have been
raised in the matter after hearing both the parties.
There will be no order as to costs here as well as in the
Court of appeal.
Appeal allowed.
Agent for the appellants: R. H. Dhebar.
Agent for respondent No. 1 : R. A. Gagrat.
1954
The Dominion of
India and Another
v.
Shrinbai A. Irani
and Another.
BhagwatiJ.