# LILAVATI BAI v. THE STATE OF BOl\fBAY

- **Citation:** [1957] 1 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 1955-03-29
- **Bench:** S. R. DAS c. ], Venkataramaayyar, B. P. Sinha, S. K. DAs, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lilavati-bai-v-the-state-of-bol-fbay-1368
- **Pages:** 18

## Headnote

Premises, Requisition rif-Constitutional ,1alidity of enactmentOrder of Government on
declaration of
vacancy-Enforceabilit;·-
Findings, if liable to be reopened-Power of C:ourt-Tenancy,
when
can be deemed to have been terminated-Ejusdem generis, applicability of-Death of a party before the passing of the Order-EjfectBombay Land Requisition Act (XXXIII of 1948),
as
amended by
·-..( Amendment Act II of 1950 and Second Ame?dment Act XXXIX ef
1950, ss.
5, 6, 6 Explanation
(a)-Constitutzon of Indza, Arts.
19(1) (f), 31, 32, 226.
By these t'.vo petitions, the petitioner challenged the constitutional validity of the Bombay Land Requisition Act,
1948, as
amended by the two amending Acts of 1950, and the enforceability
.of an order of requisition made by the Governor of Bombay under
s. 6 (4) (a) of the Act.
The petitioner a' the widow of the tenant
claimed to be in possession, while the case made on behalf of the
Government was that the tenant had before his death vacated the
premises and handed ovc.r possession to a lodg.o:r.
A copy of the
order of requisition was affixed to the premises and the petitioner
moved the High Court for a writ of inandamus, but the petition
was dismissed. The Act was passed by the State Legislature on
April I l, 1948, and by the first amending Act its life was extended
for two years and by the second the vvords "the purpose of the
State or any other public purpose" 'vere substituted for the \VOrds
"any purpose" occurring in s. 5 o[ the Act \Vith retrospective
effect from the date of the Constitution.
The Act came up for
consideration in a previous decision of this Court and arguments
were confined to grounds other than those spocifically covered by
that decision. It was contended on behalf. of the petitioner that
the Act was in conflict with Art. 31 (2) and.became invalid at the
cor:imencement of the Constitution and the c..mending Acts, for
which the assent of the
President had admittedly not
been
obtained, were ineffective under Art. 31(3) of the Constitution .
It was further contended that ss. 5 and 6 of the Act which made
the relevant findings of the Government conclusive had the effect
of impairing the powers of the Court, that it was nevertheless
open to the. Court to judge whether the facts found constituted
yacany. in law . and, lastly that the order in questi.on \vas
ineffective as the tenant was dead on the date it v1as made.
Hdd1 that the contentions raised on behalf of the petitioner
must be negatived.
1957
March 5.
1957
Lilavati Bai
v.
The State of
Bombay
722
SUPREME COURT REPORTS
'fhc constitutional validity of the Act \Vas no longer open to
question under Arts. 19(1)(f) and 31 (2) of the Constitution in
vie\v of the decision of this Court in State of Bombay v.
Bhanji
Munji (1955) 1 S.C.R. 777·
'fhe J\ct, \vhich did not oliviously come \Nithin the mischief
of cl. (6) of Art. 31, fell within the saving clause, cl. 5(a), of the
Article and \Vas an existing law \Vitbin the meaning of the
Constitution and, therefore, valid at the commencement of the
Constitution, although it did not contain the expression "for a
public purpose" as required by cl. (2) of the i\rticle.
Clause (3) of the Article, \vhich in terms applied to la\VS made
after the commencement of the Constitution, had no application
to the an1cnding Acts v·:hich \Vere in no \vay concerned \\'ith the
n1ain substantive provisions of the Act already pa5sed, and the
\Vant of the President's assent in no \Vay affected their validity.
As the Act was valid at the commencement of the Con':>Litu~
tion and continued to be so thereafter, not being in any \Vay
inconsist~nt \vith the provisions of Part III of the Constitution so
as to attract the operation of Art. 13, the Amending Acts \\·ere
equally valid in la"'·
Held further, that although in a proper case the High Court
or this Court in the exercise of their special jurisdictions under the
Constitution had po\ver to determine how far the provisions of
the Act had or had not been complied \vith,

## Text

_Characters 0–39,948 of 40,595. This is a partial read: ask again with offset=39948 for what follows._

• '
I
•
I .,.
S.C.R.
SUPREME COURT REPORTS
721
LILAVATI BAI
v.
THE STATE OF BOl\fBAY
(S. R. DAS c. ]., VENKATARAMAAYYAR, B. P. SINHA,
S. K. DAs and GAJENDRAGADKAR JJ.)
Premises, Requisition rif-Constitutional ,1alidity of enactmentOrder of Government on
declaration of
vacancy-Enforceabilit;·-
Findings, if liable to be reopened-Power of C:ourt-Tenancy,
when
can be deemed to have been terminated-Ejusdem generis, applicability of-Death of a party before the passing of the Order-EjfectBombay Land Requisition Act (XXXIII of 1948),
as
amended by
·-..( Amendment Act II of 1950 and Second Ame?dment Act XXXIX ef
1950, ss.
5, 6, 6 Explanation
(a)-Constitutzon of Indza, Arts.
19(1) (f), 31, 32, 226.
By these t'.vo petitions, the petitioner challenged the constitutional validity of the Bombay Land Requisition Act,
1948, as
amended by the two amending Acts of 1950, and the enforceability
.of an order of requisition made by the Governor of Bombay under
s. 6 (4) (a) of the Act.
The petitioner a' the widow of the tenant
claimed to be in possession, while the case made on behalf of the
Government was that the tenant had before his death vacated the
premises and handed ovc.r possession to a lodg.o:r.
A copy of the
order of requisition was affixed to the premises and the petitioner
moved the High Court for a writ of inandamus, but the petition
was dismissed. The Act was passed by the State Legislature on
April I l, 1948, and by the first amending Act its life was extended
for two years and by the second the vvords "the purpose of the
State or any other public purpose" 'vere substituted for the \VOrds
"any purpose" occurring in s. 5 o[ the Act \Vith retrospective
effect from the date of the Constitution.
The Act came up for
consideration in a previous decision of this Court and arguments
were confined to grounds other than those spocifically covered by
that decision. It was contended on behalf. of the petitioner that
the Act was in conflict with Art. 31 (2) and.became invalid at the
cor:imencement of the Constitution and the c..mending Acts, for
which the assent of the
President had admittedly not
been
obtained, were ineffective under Art. 31(3) of the Constitution .
It was further contended that ss. 5 and 6 of the Act which made
the relevant findings of the Government conclusive had the effect
of impairing the powers of the Court, that it was nevertheless
open to the. Court to judge whether the facts found constituted
yacany. in law . and, lastly that the order in questi.on \vas
ineffective as the tenant was dead on the date it v1as made.
Hdd1 that the contentions raised on behalf of the petitioner
must be negatived.
1957
March 5.
1957
Lilavati Bai
v.
The State of
Bombay
722
SUPREME COURT REPORTS
'fhc constitutional validity of the Act \Vas no longer open to
question under Arts. 19(1)(f) and 31 (2) of the Constitution in
vie\v of the decision of this Court in State of Bombay v.
Bhanji
Munji (1955) 1 S.C.R. 777·
'fhe J\ct, \vhich did not oliviously come \Nithin the mischief
of cl. (6) of Art. 31, fell within the saving clause, cl. 5(a), of the
Article and \Vas an existing law \Vitbin the meaning of the
Constitution and, therefore, valid at the commencement of the
Constitution, although it did not contain the expression "for a
public purpose" as required by cl. (2) of the i\rticle.
Clause (3) of the Article, \vhich in terms applied to la\VS made
after the commencement of the Constitution, had no application
to the an1cnding Acts v·:hich \Vere in no \vay concerned \\'ith the
n1ain substantive provisions of the Act already pa5sed, and the
\Vant of the President's assent in no \Vay affected their validity.
As the Act was valid at the commencement of the Con':>Litu~
tion and continued to be so thereafter, not being in any \Vay
inconsist~nt \vith the provisions of Part III of the Constitution so
as to attract the operation of Art. 13, the Amending Acts \\·ere
equally valid in la"'·
Held further, that although in a proper case the High Court
or this Court in the exercise of their special jurisdictions under the
Constitution had po\ver to determine how far the provisions of
the Act had or had not been complied \vith, the finding of the
State Government under s. 5 of the Act that the tenant had not
actually resided in the premises for a continuous period of six
1nonths immediately preceding the date of the order, and that under
s. 6, the pr~mises had become Vl:'.cant at about the time indicated
in the ord-::r, are cJnclusive and not collateral so as to be liable to
be re-opened and could not, therefore, be questioned either in
this Court under Art. 32 or in the High Court under Art. 226 of
the Constitution.
Rai Brij Raj Krishna v. S. K. Shaw
(1951)
S.C.R.
145
applied.
Hub!i Electricity Co. Ltd. v. Province of Bombay, (1948) L.R.
76 I.A. 57, held inapplicable.
Mohsinali Mohomed Ali v.
The State of Bombay, (1951) 53
Bom. L.R. 94: A.1.R. 1951 Born. 303, referred to.
The \vords "'or other\vise" occurring in explanation (a) to
s. 6 of the .. t\ct could not be construed as ejusdem generis with the
\vords immediately preceding them and must be held to cover
all possible cases of vacancy due to any reason whatsoever.
Skinner & Co. v. Shaw & Co., (1893) 1 Ch. D. 413, referred to.
An order of requisition passed under s. 6(4)(a) of the Act
\vas not of the nature of an order passed in a judicial proceeding
and the death of one of the parties could not mako
it wholly
in effecti\·c, the only consequence being that his name as one of
S.C.R.
SUPREME COURT REPORTS
the ]XL· ties to be served under s. 13 of the Act must be remon,J
from the order.
ORIGINAL JuRISDICTION : Petition No. I I9 of 1955
with Petition for Sepcial Leave to Appeal No. I40 of
I955·
.
Petition under Article 32 of the Constitution for
the
enforcement of fundamental rights and petition
under Article l 36 of the Constitution for special leave
to appeal from the judgment and order dated March 29,
1955, of the Bombay High Court in appeal No. 63 of
1954·
Hardayal Hardy and R. ]ethmalani, for the petitioner.
C. K. Daphtary,
Solicitor-General of India
Porus
A. Metha and R. H. Dhebar, for the respondent.
I957· March 5.
The Judgement of the Court was
delivered by
SINHA J.-By this petition under Art. 32 of the
Constitution and Petition No. I40 of I955 for special
leave to appeal from the judgment of the Bombay High
Court dated March 29, 1955, in Appeal No. 63 of I954
confirming that of a single Judge of that Court dated
April ~n,
l 954, the petitioner challenges the constitutionality of the Bombay Land Requisition Act (Act
XXXIII), I 948, hf'.reinafter referred to as "The Act"
and the enforceability of the order dated January, 27,
I954, made by the Governor of Bombay in pursuance
of s. 6(4) (a) of the Act.
The petitioner is the widow of one Dharamdas
Chellaram, who was a tenant of the premises in ques- '
tion. The said Dharamdas Chellaram died in November I 953, leaving him surviving his
widow and a
daughter.
The petitioner alleged that she had been
occupying the premises irf question as a member of her
husband's family since I938 and that the tenant aforesaid had at no material date ceased to occupy the
premises.
She also alleged that one Narottam n~1s
Dharamsey Patel was a mere lodger who vvas oc; 1';iy~
ing a portion of the premises by leave and Jiccn. t of
her husand.
The said Narottamdas had no intucst
1957
Li/avati Bai
v.
The Stale ef
Bombay
Sinha],
1957
LiilavaJi Bai
v.
Thr State of
Bomba_y
Sinha J.
Sl1PREME COURT REPORT~
[1957J
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 Dharctmdas, the tenant,
had
vacated the premises in October 19.12 and had
handed over possession of the premises to the
said
Narottamdas Dharamsey Patel. Hence it is
alleged
that it was not a fact that at the time of her husband's
death in November 1953 the petitioner was residing
in the premises in question.
These facts had been
st~ted before the High Court also on an affidavit made
in opposition to the petitioner's case in the High Court.
The petitioner's grievance is that toward the end of
January 1954 she found pasted on the outer door of
the premises an order dated January 27, 1954 said to
have been made by the Governor of Bombay and
which is ;aid 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 eJICct to
the aforesaid Order.
The Order impugned is in these
terms
"No. RI\ I 1) M-13067
Office of the Controller of Accommodation,
Jehangir Building, l\fahatma Gandhi Road,
Bombay, January, 27, 195+
Order
\\"hcreas, on inquiry it is found that the premises
spccifif'd below had become vacant in the month of
October 1952 ;
Now, therefore, in exercise of the powecs conferred
by clause (a) of sub-section (4) of section 6 of the
Bombay Lane!
Requisition Act,
1948 (Bombay Act
XXXIII of 1948)
the Gm·ernment of Bombay is
pkasecl to requisition the said premises for a public
purpo c namely, for housing a Bombay State Government servant.
Premises
flat ;\o. 3 on the 1st floor of the Building known
as Hem Prabha situated at 68, Marine Drive, Bombay.
•
S.C.R.
SUPREME COURT REPORTS .
By order and in the name of
Governor of Bombay."
This Order was meant to be served on ( l) Shri Hirabhai H. Patel, admittedly the landlord of the premises,
(2) Shri
Narottam Dharamsey Patel aforesaid, and
(3) Shri Dharamdas Chellaram, who, as already indicated, was dead at the date the Order was made.
The petitioner challenged the validity of the Order
of requisition set 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 filed a petition praying for special 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 judgment.
Before dealing with the contentions raised on behalf
of the petitioner, it is convenient first to set out, in so
far as it is necessary, the legislative history of the law
impugned and its certain salient features which are
relevant for purposes of this case.
This Act was passed
by the Provincial Legislature of Bombay on April l 1,
l 948, on being em powered . by the Governor-General
in exercise of powers conferred on him by s. 104 of the
Government of India Act, l 935.
Initially it was to
remain in force until March, 31, 1950.
But by the
amending Act, Bombay Land Requisition(Amendment)
Act, 1950 (Bombay Act No. II of 1950) published on
March 28, 1950, its life was extended up to the end of
March 1952.
By the amending Act, ss. 8-A, 8-B and
9-A were added making substantial changes which
need not be set out here, as they do not enter into the
controversy.
The
life of the Act was subsequently
extended further, up to the end of December 1958. By
the Bombay Land Requisition (Second Amendment)
Act, 1950 (Act XXXIX of 1950), the Act was further
amended so as to substitute the words "the purpose of
the State or any other public purpose" for the words
"any purpose" in s. 5 of the Act.
This was obviously
done to satisfy the requirements of Art. 3 l of the
1957
Lilavati Bai
V.
I~
The State of
Bombay
Sinha].
1957
Li!at1;ti Bai
"·
The State of
Bombay
Sinha].
SUPRE~,IE COCRT REPORTS
[ 1q· -1
• :JI
Cor,sritution. Consequential changes \\ere also me.de
in ss. 6 <'nd 7 of the Act.
By s. 6 of the amending
Act it v:"s proYiciccl that "The amendments made by
this ,\ct shall be deemed to ha·:e been and ahrnys
to h«YC been ll1'1c:e with effect from the 26th Janua;·y
1950, ..... ".
Tines
the
2mendrnent
was
gi\-en
rctrospcctiYc operation.
The pru\·isions of ss. 5, 6 and
I 3 <eftcr the amc,,dmcnts aforesaid
\omitting the
portions not necessary for our purpose) arc in these
terms :-
".'· ( 1) If in the opinion of the State Government
it is necessary or expedient so to do, the State GoYernment may by order in writing requisition any land for
puij,ose of the State or 01ry other jJUb/ic jm1j1osc :
Provided that no building or part thereof wherein
the O\\ner, the lanc:jord or the tenant, as the case may
be, has actually resided for a continuous periorl of six
months immediately preceding the date of the order
shall be requisitioned under this section.
( 2) Where any building or pan thereof is to be
requisitioned under sub-section (r), the State GO\ernmcnt shall make such enquiry as it deems fit and make
a declaration in the order or requisition that the owner,
the landlord or the tenant, as the case may be, has not
actually resided therein for a continuous period of six
months immediately preceding the date of the order
and such declaration shall lie conclusive evidnzce
that
the owner, landlord or tenant has not so resided.
6. ( 1) If any premises situate in an area specified by
the State Government by notification in the Official
Gazette, are vacant on the elate of such notification
and wherever any such premises are vacant or become
yacant after such date by reason of the landlord, the
tenant or the wb-tenanL as the case may be, ceasing
to occupy the premises or by reason of the release of th"
premise' from requisition or by reason of the premises
bf'ing nc\\·ly erected or reconstructed or for any other
reason the l;mdlorcl of such premises shall give intimation thereof in the prescribed form
to an officer
authorised in this behalf by the State Government.
S.C.R.
:c>UPRE~lE COURT REPORTS
(4) \Vhether or not an intimation μnclcr suL-section
( 1) is given and notwithsta11ding anything contained
in section 5, the State Government may by order in
writing --
(a) i·cquisitiun tlie premises for the purpose ufthe
State or any other public purpose and may use or deal
with the premises for any such purpose in such manner
as rnJy appear to it to be expedient, or
Provided that where an rm\cr is to be made under
clause (a) ffquisitioninu; the premises in respect of
which no intimation is gin'.ll by the landlord, the State
GoYCrnment shall make such inquiry as it deems fit
and make a declaration in the order that the premises
were vacant or had become vacant, on or after the
date referred to in sub-section ( 1) and such declaration
shall be conclusive evidence that the premises were or
had so become vacant :
Explanation-For the purposes of this section,-
( a) premises which art". in the occupatir:ll of the
landlord, the tenant or the sub-tenant, as tl;c case may
be, shall be decm1'.d to be or become vacant when :,11ch
landlord
ceases to be
in occupation or when such
tenant or sub-tenant ceases to be in occupation upon
termination of his tenancy, eviction, assignment or
transfer in anv other manner of hi~ interest in the
premises or otherwise, not withstanding any instrument
or occupation by any other person prior to the
date
when wch landlord, tenant or sub-tenant so ceases to
be in occupation;
1 3. ( 1) Every order made under ss. 5, 6, 7, 8-A or
8-B or sub-section ( 7) of section g or section 12 shall-
( a) if it is an order of a general nature or affecting
a cb:,s of persons, be
published in
the
manner
pm:cribecl by rules made in this behalf ;
(b) if it is an order affecting an individual, corporation, or firm, be served in the manner provided for
the service of a summons in Ruic 2 of Order XXIX or
Rule 3 of Order XXX, as the case may be, in the First
Schedule of the Code of Civil Procedure, 1908 ;
1957
Li/a,,ali Bai
v.
The State qf
Bombay
Sinha].
1957
Lilavati Bai
V,
I'k State of
Bombay
Sinha].
SUPREME COURT REPORTS
[I 95 7)
(c) ifit is an order affecting an individual person
other than a corporation or firm, be served on the
person·-
(i) personally, by cleliverillg or tendering to
him the order, or
\;i) by post, or
(iii) where the person cannot
be
found, by
leaving an authentic copy of the order with some adult
male member of his family or by affixing such copy to
some conspicuous ;Jart of the premises in which he is
k:iown to ha\'e last resided or carried on business or
worked fo~ g-ain.
(2) \\'here a question arises whether a person \\'aS
duly informed of an order made in pursuance of sections :1, 6, 7, 8-A or 8-B or, sub-section (7) of section 9
or section 1 2 compliance with the requirements of subsection i 1) shall be conclusi11e proof that he was so
informed ; but failure to con·1ply with the said requirements shal! not preclude proof by other means that he
was so informed, or affect th~ validity of the order.
............................ ". (Gnderlining
ours).
At the outset it is neccss;,ry to state that the ma:n
grouncls of attar,k against the constitutionality of the
Act based on such fundamental rights ;ls are recognised
by Ans. 19!1)([) and 31 (2) of the Constitution must be
o\·erruled in view of the decision of the C01•stitution
Bench r,f this Court in State of Bombay v.
Bhanji
Munji (').
In that case this Court upheld the validity
of the Act with reference to the provisions
of
the
a;·ticles aforesaid of the Constitution.
But the learned
counsel for the netitioner comended that he attacked
the 1'ircs of the Act on grounds other than those which
had hccn speciiically dealt with by this Court in the
clec;sion jus.t referred to.
\Ve now proceed to deal with
those fresh grounds on their merits.
It was contended
that the Act became invalid on January 26,
1950
inasmuch as it was in conflict with Art. 3r(2) of the
Constitution.
The Act was, therefore, as good as dead
by the time Act II of 1 950 extending the life of the
Act was enacted as aforesaid. The Act being void, its
extension
by Act II of
1950 was equally void.
(1) fI93:J] Is. c. R. 777.
S.C.R.
SUPREME COURT REPORTS
Similarly, it was further argued that the amendments
effected by the amending Act II of 1950 and Act
XXXIX of 1950 required the assent of the President
and that as admittedly no such assent had been given,
they had no effect as provided in Art. 3 l ( 3) of the
Constitution.
This chain of submissions is founded on
the admitted non-compliance with the requirements of
Art. 3 l (3).
It has not been contended that the Act
when passed on April l l, r 948, was not good law. It
is also clear that the Act is not covered by the provisions of cl. (6) of Art. 3 I. The Acr is thus covered by
the saving clause, cl. 5(a), being an existing law other
than a law to which the provisiom of cl. (6) apply. The
Act, therefore, would be valid evefl if the provisions of
cl. ( 2) of Art. 3 l are not in terms fully satisfied, in so
far as the Act did not before its amendment bv Act
XXXIX of r950 contain the expression "for a public
purpose".
As already pointed out, this Court in the
case cf T!te State of Bombay v. Blzanji Munji (1) has laid
it down that the Act was 11ot 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 purpo·,e, 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. 3 l has, therefore, no force.
Act II of 1950, in so far :rs 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 Act3 are merely an extension or explanatory of the substantive Act which is an existing
law within the meaning of the Constitution.
Clause (3}
11) [1955] 1 S. C.R. 777.
1957
Li/avati Bai
v.
The State of
Bombay
Sinha].
1957
Li!avati Bai
V.
The State of
Bomhqy
Sinha].
SUPREME COURT KEPORTS
of Art. 3 r 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 I 948.
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. I 3 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
~rns good law afte'!" the commencement of the
Constitution, it follows that the amendments aforesaid
made in 1950, were eqnally good law, even though the
assent of the President had not been obtained.
Secondly, the decision of this Court in The State of
Bombay v. Bhanji Mv11ji (') (snpra) itself has ruled to
the contrary with reference to the provisions of Art. 31
(2) . V\'e cannot, therefore, go back upon our decision
in the case aforesaid.
On these considerations the pc•ition 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, h~.,·c
been contravened.
It remains to consider the other arguments advance!
on behalf of the petitioner which have a bearing on the
petition for special leave to appeal from the judgement
of the Bombay High Court. It has been contended
that s;. 5 and 6 of the Act quoted above and underlined by us have made certain matters conclusive, so
that the High Court or even this Court could not go
behind the order of the State Government holding that
the tenant had not resided in the premises for a
continuous period of six months immediately precerling
the date of the order (s. 5), or that the premises had
become vacant in the month of October 19.')2, as stated
in the Order impugned in thie case.
It is contended
that the legislature had, by making those provisions
rendering those matters conclusively proved, impaired
the powers of the High Court under Art. 226 and of
this Court under Art. 32 of the Constitution.
Anotl,~r
branch of the argument is that the declaration
of
vacancy is dependent upon a collateral facl ,-.hich has
(1) [19:,51 1 $.C.R. iii·
S.C.R.
SUPREME COURT REPORTS
73 1
to be found by the Government on such enquiry as it
may deem fit and proper and its conclusion ori such a
collateral fact could not be placed by the Act beyond
scrutiny by the High Court or by this Court.
In this
connection it was also argued that on the question of
vacancy the finding of the State Government may be
conclusive on the "factual aspect" but not on the
"legal aspect" of the matter. In other words, it was
contended that it was still open to the courts to find
whether the facts found constituted in law "vacancy"
as defined in the Act.
In this connection strong
reliance was placed on the following observations of the
Judicial Committee of the Privy Council in the case of
Hubli Eiectricity Co Ltd. v. Province ef Bombay (1) at
pages 65 and 66 :--
"The question what obligations are imposed on
licensees by or under the Act is a question of law.
Their Lordships do not read the section as making
the government the arbiter on the construction of the
Act or as to the obligations it imposes. Doubtless the
government must, in expressing an opinion for the
purpose of the section, also entertain a view as to the
question of law. But its view on law is not decisive.
If in arriving at a conclusion it appeared that the
government had given effect to a wrong apprehension
of the obligations imposed on the licensee by or under
the Act the result would be that the Government had
not expressed such an opinion as is referred to in the
section."
There are several answers to this contention.
In
the first place, it is well settled that observations made
with reference to the construction of one statute cannot
be appHed with reference to the provisions of another
stamte 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 (I) of the Indian Electricity Act, I 910,
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
(1) [1948] L. R. 76 I. A. 57.
1957
Lilavati Bai
v.
The State ef
Bombay
Sinha].
1957
Lilavati Bai
v.
T~
Stat~ of
Bombay
Si.ma].
732
SUPREME COURT REPORTS
[ 195 7]
it has construed the words "opinion of the Provincial
Government".
Those words or words of similar import
appear in the beginning of s. 5.
In the words of the
Judicial Committee, those words signify the subjective
opinion of tht; Government and not an opinion subject to
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-justiciable,
was confined to the question of whether there Lad
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 Act.
This
question appears to ha\·e been canvassed in a number
of cases in the High Court of Bombay.
In the case of
]agatchandra v. Bomba)' Province (1) TGndolkar J. had
ruled that the declaration made by the Government
shall be "conclusive evidence with regard to all facts
involved in the determination of v.1cancy but that it
was not conclusive with regard to the iafcrences to be
drawn from or the lcg't! conseque:1ces of such focts.
The correctness of that proposition was questioned in
anothc:r case before another learned J u<lge of that
Court, Shah J., who referred it to be determined b,· a
larger Bench. Chagla C. J. and Gajcndragadkar J. (now
one of us) examined that question in some detail and
O\·erruled the decision of Tendolkar J. (Vide 1Hohsinali
Mohomed Ali v. The State of Bomba_y(')). The Bombay
High Court in the last r1entioned case held that on a
declaration being made by the State Government that
there "·as a vacancy, it was conclusive both as t0 the
facts and the constituent elements of "vacancv". ;tS
understood under the Act.
The High Court reiie,'l in
this connection on the observations
of the Judicial
(1) ,.\.LR. 1950 Il•Jn1. 144.
(2) [1951] 53 Boin.L.H. ~.J.; :\.I.R. :951 Born. 303.
S.C.R.
SUPREME COURT REPORTS
733
Committee of the Privy Council in Moosa Goo/am Arif!
v. Ebrahim· Goolam Ariff(1)
and of Lord Cairns in
Peel's
case(2), and of Lord Parker of. Waddington in
Bowan v. Secular Society Ltd. (3).
In this connection the learned counsel for the petitioner also pressed in aid of his agrument the well
known distinction between the jurisdiction of a court
or authority to decide a certain fact as one of the issues
in the controversy and certain collateral facts on which
the jurisdiction to determine the controversy could
arise.
It was argued that the finding on the question
of vacancy by the State Government was a "jurisdictional fact" in the sense that unless it was found that
there was a vacancy, the jurisdiction of the State
Government to make the declaration and to requisition
the premises could not arise.
This aspect of the
matter has been considered by this Court in the case of
Rai Brij
Raj Krishna v. S. K. Shaw & Brutlzers (4).
That case concerned the construction of the p!'ovi-sions
sion .. of the Bihar Buildings (Lease, Rent and Eviction)
Control Act (Bihar Act III) of 190· This Court held that
the Controller had been vested with the jurisdiction to
determine all questions including the question whether
or not there was non-payment of rent and on finding
that there was default in the payment of rent, with
the jurisdiction to order eviction of the tenant.
The
finding of the question of default was not a jurisdictional finding ~n the sense in which learned counsel for
the petitioner asks us to hold with reference to the
finding of the State Government in this case that
there has been '.l vacancy.
In the reported case this
Court held further that even if the Controller had
wrongly
decided
the question
of defatilt
in the
payment of rent, his effective order on the question of
eviction could not be challenged in a court of law.
Mr. Justice Fazl Ali delivering the judgment of the
court made reference to the well known observations
of Lord Esher, M.R. in the case of Queen v. Commissioners for Special Purposes of the Income
tax(5) and to
(1) [1912] L.R. 39 I.A. 237
(2) [18G7J L.R. 2 Ch. App. 674.
(3) [1917] A.C 406.
(4) [:951] S.C.R. 145.
(5) [1888] 21 Q.B.D. 313, 319.
Lilavati Bai
~.
The Stale OJ
Bombay
Sinha].
1957
Lilavati Bai
v.
TJ,e State qf
Bombay
Sinha].
734
SUPREME COURT REPORTS
[ 195 7 J
the observations of the Privy Council in the case of
the Colonial Bank of Australasia v.
Willan(').
After
referring to those observations and to the provisions
of the statute then before the Court, this Court
held that the Act empowered the Controller alone
to decide whether or not there was non-payment
of rent
and
that
decision
was
essential
to
his order for eviction of the tenant under s.
r r.
That decision of the Controller, the Court further
held, could not be challenged in a court
of law.
The decision of this Court just referred to is an apt
illustration of the rule which applies with equal force
to the provisions of the Act now before us.
The 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 elate
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 maclc those
declarations conclusive and it is not for this Court to
question that wisdom.
As an offshoot of the agrument that we have just
been examining it was contended on behalf of the
petitioner that Explanation :a) to s. 6 quoted above
contemplates a vacancy when a tenant (omitting other
words not necessary) "Ceases to be in occupation upon
(1) [1H-;+} 5 l'.C: ·1-17·4-t-3
,.
' •
S.C.R
SUPREME COURT REPORTS
735
termination of his tenancy, eviction, or assignment or
transfer in any other manner of his interest in the
premises or
otherwise".
The
argument
proceeds
further to the effect that in the instant case admittedly
there was no termination, eviction, assignment or
transfer and that the words "or otherwise" must be
construed as ejusdem generis with the words immediately preceding them ; and that therefore on the facts
as admitted even in the affidavit filed on behalf of the
Government there was in law no vacancy.
In the
fir$t place, as already indicated, we cannot go behind
the declaration made by the Government that there
v1·as 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 arc not words of limitation but of
extension so as to cover all pos~ible ways in which a
vacancy may occur.
Generally speaking, a tenant's
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 tellant's interest.
But the legislature,
when it used the words "or otherwise", apparently
intended to cover other cases which may not come
within the meanint, of the preceding clauses, for
example, a case where the tenant's occupation has
ceased as a result of trespass by a third party. The
frgislature, in our opinion, intended to cover all
lJo;;sible 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 notice.
On the other hand, by way of illustration of decisions
to the contrary may be cited the case of Skinner & Co.
v. Shew & Co. (').
In that case the Court of Appeal
[1) [1893] 1 Ch. D .. p3.
2-99 s. c. I./59
1957
Lilavati Bai
v.
The State of
Bombay
Sinha].
1957
Lilavati Bai
v.
The State of
Bomba)'
Sinha],
SUPREME COURT REPORTS
[ 1957]
had to consider the words
of s. 32 of the Patents,
Designs & Trade Marks Act, 1883 (46 & 47 Viet. c.57),
to the following effect :-
"\\There any person claiming to be the patentee of
any invention, by circulars, advertisements or otherwise threatens any
other person
with any
legal
d.
,,
procee mgs ............... .
Their Lordships repelled the contention that the words
"or otherwise" occurring in that section had to be read
ejusdem generis with "circulars", and "advertisements".
They observed that by so doing they will be cutting
down the intendment of the provisions of the statute
when clearly the words "or otherwise" had been used
with a contrary intention.
The rule of ejusdem generis
is intended to be applied where general words have
been used following particular and specific words of
the same nature on the established rule of construction
that the legislature presumed to use the general words
in a restricted sense; that is to say, as belonging to
the same genus as the particular and specific words.
Such a restricted meaning has to be given to words of
general import only where the context of the whole
scheme of legislation requires it.
But where
the
context and the object and mischief of the enactment
do not require such restricted meaning to be attached
to words of general import, it becomes the duty of the
courts to give those words their plain and ordinary
meaning. In our opinion, in the context of the object
and mischief of the enactment there is no room for the
application of the rule of ejusdem generis.
Hence it
follows that the vacancy as declared by the order
impugned in this case, even though it may not be
covered by the specific words used, is certainly covered
by the legal import of the words "or otherwise".
The only other contention which remains to be dealt
with is that the order impugned in this case is not
enforceable because it was
directed
against
the
petitioner's husband, who was dead at the date of the
order, besides the other two persons indicated in it
who were not concerned with the premises.
In our
opinion, there is no substance in this contention either.
An order like the one passed under s. 6(4) (a) of the Act
S.C.R.
SUPREME COURT REPORTS
737
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
premise~ to the so called "lodger" or
"paying guest".
Admittedly the petitioner's 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 petitioner's 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. I 3 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 ca5e 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
petitioner's 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 I 952. 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 questiou 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
1957
Li/1JDaJi Bai
v.
TM Stale ef
Bombay
Sinha].
1957
Lilai'ali Baj
v.
Tk Stole ef
llomba;
Sin.ha J~
1957
March 7.
SUPREME COURT REPORTS
the order impugned.
Hence in the instant case there
is no need to apply the rule of conclusive proof as laid
dmrn 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".
As all the g,rounds urged in support of the petitions
fail, they are dismissed with costs, one set.
Petitions dismissed.
SOHANLAL
v.
THE UNION OF INDIA
( BHAGWATI, jAGANNADHADAs, ]AFER IMAM, Gov1NDA
MENON and J. L. KAPUR JJ.)
Jl'rit
~f mandamus-Disputed qulstions of
fact and !awDisf,11!e rrgarding tit/e-T11hether
ronrf£1' by
U!~Y of writ approj1riate
-l1.litt! writ can issue to private
iu_dividual-~S'tate illegally evicting
jJtrso11 fronl house-.A1wther person takzug possession bona fide
u:ithout
!:11ou1/edge qf illegal eviction-r11hether ivrit can t"ssue against such
j;enon-Consti!ution ~f India, Art. 226 .
.J, a displaced person, "'·as.found /1ri1nafacie entitled to allotment of~. house and the Accomn1od~tion Officer moved his family
into the house on I\1ay 10, 1952, but no letter of allotment ,\·as
issued to him.
Later, ,\·hen certain facts became knc\vn which in
tht" opinion of the Union of India disentitlcd J to the allotment,
he "·as informf'"<l that the house could not be allotted to him.
J \vas c,·icted fr01n the house on September 27, 1952,
,...,.·ithout being gi,·en 1 s days notice as reqnircd hy s. 3 of the Public
Premise-; Eviction Act (XXVII of i950).
~fhe house \Vas then
allotted to S and he \\·as given possession on October 3, 1952. J
filed a petition under Art. 226 of the Constitution in the High
Court.