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PETITIONER: THE DOMINION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: SHRINBAI A. IRANI AND ANOTHER.

DATE OF JUDGMENT: 14/05/1954

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  596            1955 SCR  206  CITATOR INFO :  R          1955 SC 765  (33)  RF         1956 SC 105  (6)  MV         1971 SC 530  (374)  F          1983 SC 259  (18)  RF         1987 SC 117  (40)  RF         1992 SC  81  (11)

ACT: Requisitioned  Land (Continuance of Powers) Ordinance,  1946 (XIX  of  1946),  cls.  2(3) and  3-Effect  thereof  on  the existing requisition order in respect of immovable property- Non obstante clause--Interpretation of.

HEADNOTE: Three shoprooms were requisitioned on April 15, 1943,  under the  Defence of India Rules and the requisition order  inter alia stated that is the said requisitioned property shall be continued  in requisition during the period of  present  war and six months thereafter or for such shorter period as  may be specified by the Food Controller, Bombay........ Held,  that on a plain and grammatical construction of  cls. 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  requisition  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 section but the non obstante clause need  not necessarily  and always be co-extensive with  the  operative part if it has the effect of cutting down the clear terms of an enactment.

JUDGMENT:

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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 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 delivered  by BHAGWATI J. 207 BHAGWATI J.-This appeal by special leave from a judgment  of the High Court of Judicature at Bombay in Appeal No. 117  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 vacant and peaceful possession of the  three  shops  situated  ’on the  ground  floor  of  the premises  known as "Irani Manzil." 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/OR/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 and the efficient prosecution  of the  war  to  requisition  the  property  specified  in  the schedule  hereto  appended.........  1,  M.A.  Faruqui,  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 requisition during the period of the present war and six ’months thereafter, or for such  shorter  period  as  may  be  specified  by  the  Food Controller, Bombay............... " The  said premises were used for the purpose of housing  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 the Department to  remain  as  her tenants  in respect of the premises.  The  first  respondent replied  by  her advocate’s letter dated  the  27th  August, 1946, 208 offering  the  tenancy to the Department on  certain  terms. These  terms  were not accepted but the  occupation  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 anend  and  also  complained that  it  was  contemplated  to transfer  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

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said  shops.   The  Controller of  Government  Grain  Shops, Bombay,  wrote to the first respondent 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  giver  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 the 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 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  High  Court.  of Judicature  at  Bombay being Suit No. 235 of  1949  claiming vacant and peaceful possession 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  requisitioning 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 contentions  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 leave 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

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27 210 were  to  expire  on  the  30th  September,  1946.   Various immoveable properties had been requisitioned in exercise  of the powers conferred by sub-rule I 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 and  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  Act promulgated on the 26th September, 1946, an Ordinance  being Ordinance No. XIX of 1946, the relevant provisions of  which may be set out hereunder "ORDINANCE  NO.  XIX OF 1946.  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 property which, when the Defence of India Act, 1939 (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  a& may appear to it to be expedient," 211 It  is  clear  from the preamble as also  clause  3  of  the Ordinance  that  the  occasion  for  the  enactment  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

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and  the  rules.  The latter category of orders  would  have ceased  to be operative and come to an end by reason of  the limitation 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  clause 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 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  under clause 3 of the Ordinance. 212 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 213 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

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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 out 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 rules were to continue 214 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  construc- tion  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 requisition  orders, which by accidentor design were to expire on the 30th Septem ber,  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 the 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 individual cases.  There may be cases in  which the  Ordinance worked to the prejudice of the owner  of  the requisitioned  land.   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 particular measure was lawfully enacted by  a legislative  authority  covering  the  particular  case   in question  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

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reached  the conclusion that clause 3 of the  Ordinance  had not  the  effect  of continuing  the  requisition  order  in question. Mr. Palkhivala at the close of the arguments appealed to  us that  his  client was a petty landlady  and  the  immoveable property which she owned was of a small value and the result of  an  order  of  remand would be to  put  her  to  further harassment  and  costs.  He pointed out to us  that  he  had particularly requested the Court of appeal not to decide the appeal merely on the short 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 decided 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. I: R. A. Gagrat, 216