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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: R. S. NANJI.

DATE OF JUDGMENT: 17/01/1956

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. SINHA, BHUVNESHWAR P.

CITATION:  1956 AIR  294            1956 SCR   18

ACT:  Bombay  Land  Requisition Act, 1948 (Bombay Act  XXXIII  of 1948), s. 5 (1)-Requisition of premises by Bombay Government for housing an officer of State Road Transport  Corporation- Whether  for a public purpose-Expression  ’public  purpose’- Meaninq of Road Transport Corporation Act, 1950  (Parliament Act  LXIV  of 1960), S.  19(1)(c)-Corporation  empowered  to provide  living  accommodation  for  its  employees-Premises requisitionedfor Corporation-Whether for a public purpose.

HEADNOTE: In exercise of the powers conferred by sub-section (1) of s. 5 of the Bombay Land Requisition Act, 1948 the Government of Bombay  requisitioned by an order dated 12th May  1952,  the premises  specified therein, for a public  purpose,  namely, for  bousiing  an  officer  of  the  State  Road   Transport Corporation  which is a public utility service.  On  a  writ application under Art. 226 of the Constitution filed by  the respondent the requisition order was set aside by the Bombay High Court on the ground that the requisition was not for  a public purpose and therefore could not have been made  under s. 5 of the Requisition Act.  On appeal by special leave  to the Supreme Court. 19 Held  (1) that in the circumstances of the present case  the requisition was for a public purpose and the impugned  order had been wrongly set aside by the High Court; (2) the phrase ’Public purpose’ includes a purpose, that is, an  object  or  aim, in which the general  interest  of  the community,   as  opposed  to  the  particular  interest   of individuals  is  directly  and  vitally  concerned.   It  is impossible  to  define  precisely  the  expression   ’public purpose’.  In each case all the facts and circumstances will require to be closely examined to determine whether a public purpose has been established; (3)  the Corporation has power to provide for its  employees suitable  conditions  of  service   including............... living  accommodation,  places for rest and  recreation  and other amenities vide s. 19(1) (c)  of  the  Road   Transport

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Corporation Act, 1950; (4)  the  provisions of the Road Transport  Corporation  Act read as a whole lead to the conclusion that if the  premises specified  in the impugned order had been requisitioned  for the  Corporation,  the  requisition would have  been  for  a public purpose; (5)in  the present case the Corporation is a public  utility concern  and the general interest of the public is  directly and  vitally concerned with its activities and  undertaking. Providing  living  accommodation  for  its  employees  is  a statutory  activity of the Corporation and it  is  essential for  it  to provide such accommodation in  order  to  ensure efficient working of the road transport system and therefore the impugned order was validly passed under the  Requisition Act. Hamabai  Framjee.Petit  v. Secretary of State for  India  in Council  ([1914]  L.R. 42 I.A. 44), The State of  Bombay  v. Bhonji Munji and Another ([1955] 1 S.C.R. 777) and The State of Bombay v. Ali Gulshan ([1955] 2 S.C.R. 867), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 235 of 1954. On Appeal by Special Leave from the Judgment and Order dated the  26th day of February 1953 of the Bombay High  Court  in Appeal No. 120 of 1952 arising out of the Order dated the II the  day  of September, 1952 of the said High Court  in  its Ordinary Original Jurisdiction in Misc.  Application No. 216 of 1952. M.C. Setalvad, Attorney-General of India (B.  Sen and R.  H. Dhebar, with him) for the appellant. Sri Narain Andley, J. B. Dadachanji and Rajinder Narain, for the respondent. 20 1956.  January 17.  The Judgment of the Court was  delivered by IMAMJ.--By  an  order  dated  12th  May  1952,   hereinafter referred  to  as the impugned order the  Government  of  the State of Bombay requisitioned under section 5 of the  Bombay Land  Requisition  Act, 1948 (Bombay Act  XXXIII  of  1948), hereinafter referred to as the Requisition Act, the premises specified  therein.   The impugned order, so far  as  it  is relevant to the present appeal, stated,   "Now,  therefore, in exercise of the powers  conferred  by sub-section (1) of section 5 of the Bombay Land  Requisition Act,  1948  (Bombay Act XXXIII of 1948)  the  Government  of Bombay  is  pleased  to requisition the  said  part  of  the building  for  a  public purpose,  namely,  for  housing  an Officer  of the State Road Transport Corporation which is  a public utility service".   The respondent filed a writ application under Article  226 of  the  Constitution  in  the Bombay  High  Court  and  the application  was  beard by Tendolkar, J. who set  aside  the impugned order.  Against his decision the appellant appealed and a Division Bench of the said Court affirmed the decision of  Tendolkar,  J. The present appeal is  by  special  leave against the decision of the High Court.   The principal ground upon which the impugned order was set aside was that the requisition was not for a public  purpose and therefore could not have been validly made under section 5 of the Requisition Act.    On  behalf  of the appellant,  the  Attorney-General  has urged  that  in the circumstances of the present  case,  the

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requisition was for a public purpose and the impugned  order had been wrongly set aside by the High Court.  In support of his submission he relied upon certain provisions of the Road Transport Corporations Act, 1950 (LXIV of 1950), hereinafter referred to as the Act, the decision of the Privy Council in the case of Hamabai Framjee Petit v. Secretary of State  for India in Council(1) and the decisions of this Court in (1)  [1914] L.R. 42 I.A. 44. 21 The  State of Bombay v. Bhanji Munji and Another(1) and  The State  of  Bombay v. Ali Gulshan (Civil Appeal  No.  229  of 1953)  decided on the 4th of October 1955(2).  On the  other hand,  Mr.  Andley, on behalf of the  respondent,  contended that to requisition the premises to house an employee of the State Road Transport Corporation, hereinafter referred to as the  Corporation, could not be regarded as a public  purpose because  that was a matter in which the general interest  of the  community was not directly and vitally  concerned.   He urged  that  although their Lordships of the  Privy  Council rightly   approved   the  observations  of   Batchelor,   J. concerning  the expression ’public purpose’, they  erred  in their  decision in Hamabai’s case.  In any event,  Hamabai’s case  could  be distinguished as in that case  there  was  a scheme  for  constructing  houses  for  Government  servants generally  and not procuring residential  accommodation  for one  particular  individual.  The validity of  the  impugned order was also questioned by him on the ground that  nothing had been established to prove that by housing an officer  of the  Corporation in the requisitioned premises the needs  or the  purposes of the Corporation would be served or that  it would contribute to the efficiency of the officer concerned.    Before Tendolkar, J. two points bad been raised (1)  that no enquiry, as required by section 5 of the Requisition Act, was held and (2) that the impugned order was invalid as  the requisition  was  not  for a  public  purpose.   The  former question was decided against the respondent while the latter was decided in his favour.  In appeal, the first point  does not appear to have been put forward as there is no reference to it in the judgments of the learned Judges of the Division Bench.   In  this  Court the only point  argued  was  as  to whether  the  requisition was for a public purpose  or  not. Before proceeding to consider that question it is  necessary to  make  some  reference  to  the  purpose  for  which  the Corporation is established, its compo. sition, the extent of control  exercised by the State Government over it  and  its activities. (1) [1965] 1 S.C.R. 777. (2) [1955] 2 S.C.R. 867. 22 It  was  not disputed before us that the  Corporation  is  a public utility concern and is governed by the provisions  of the Act.  The purpose for which the Corporation was  created may be gathered from the provisions of section 3 of the  Act which  enables  a  State  Government  to  establish  a  Road Transport  Corporation  having  regard  to  the   advantages offered to the public, trade and industry by the development of road transport, the desirability of coordinating any form of  road transport with any other form of transport and  the desirability  of extending and improving the facilities  for road transport in any area and of providing an efficient and economical system of road transport service.   The  Corporation  consists  of  a  Chairman  and   members appointed by the State Government who are removable by  that authority.   Where  capital is subscribed by  the  issue  of shares under section 23 of the Act provision is made for the

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representation  of the share-holders in the Corporation  and the  manner  in which they are to be elected  in  accordance with rules to be framed under the Act.  Its Chief  Executive Officer  or General Manager and its Chief  Accounts  Officer are  to  be appointed by the State  Government.   The  other officers and servants are to be appointed by the Corporation but the conditions of appointment and service and the scales of pay shall be determined by regulations made under the Act subject  to the provisions of section 34,  which  authorises the  State  Government  to  issue  directions  and   general instructions  to the Corporation and these instructions  may include   directions   relating  to  the   recruitment   and conditions of service.   The  Corporation  is under the effective  control  of  the State  Government.   In addition to what  has  already  been mentioned   when  referring  to  the  composition   of   the Corporation, the capital of the Corporation may be  provided by  the Central and State Governments in such proportion  as is  agreed between them.  When no such capital is  provided, the  Corporation may raise capital, as is authorised by  the State  Government,  by issue of shares.   These  shares  are guaran- 23 teed by that Government.  The budget of the Corporation  has to be submitted to the State Government for approval and its accounts  are to be audited by an auditor appointed by  that Government.  The balance of the net profits, after providing for  various matters mentioned in section 30 of the Act,  is to  be made over to the State Government for the purpose  of road development.  The Corporation can be superseded by  the State  Government or that Government may, after  an  enquiry under section 36, authorize a person by notification in  the official Gazette to take over the Corporation and administer its affairs during the period the notification is in force.   The activities of the Corporation are manifold in  pursuit of which there is a statutory duty to so exercise its powers as  to  provide,  secure  or promote  the  provision  of  an efficient,  adequate,  economical and  properly  coordinated system  of road transport in the State or part of it and  in any extended area (vide section 18 of the Act).  The  powers of  the  Corporation are stated in section 19  of  the  Act. These  powers, although not exhaustive, cover a wide  field. Particular  reference  need be made only to  some  of  them. Section 19(1) provides:   "Subject  to  the provisions of this  Act,  a  Corporation shall have power:- (a).................... (b).................... (c)to  provide  for  its employees  suitable  conditions  of service  including  fair wages, establishment  of  provident fund,  living accommodation, places for rest and  recreation and other amenities".   Section 19(2) excluding the explanation to clause (a)  and some  clauses with which we are not  immediately  concerned, states,   "Subject  to  the  provisions  of  this  Act,  the  powers conferred by subsection (1) shall include power:- (a)  to manufacture, purchase, maintain and  repair  rolling stock,  vehicles, appliances, plant, equipment or any  other thing  required for the purpose of any of the activities  of the Corporation referred to in sub-section (1). 24   (b)   to acquire and hold such property, both movable  and immovable,  as  the Corporation may deem necessary  for  the purpose of any of the said activities and to lease, sell  or otherwise transfer any property held by it.

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(d)  to purchase by agreement or to take on lease  or  under any  form  of  tenancy any land and to  erect  thereon  such buildings as may be necessary for the purpose of carrying on its undertaking."    The provisions of the Act read as a whole lead us to  the conclusion  that if the premises specified in  the  impugned order  had  been  requisitioned  for  the  Corporation,  the requisition  would have been for a public  purpose.   Indeed the  learned Judges of the High Court were of  this  opinion and  Mr. Andley did not contend to the contrary.   According to  him,  in  this case., the requisition was  not  for  the Corporation  but for an employee of the Corporation and  for his convenience which could not be a public purpose.   The  expression  ’public purpose’ has been  considered  in many cases and it is unnecessary to refer to them except the three  cases  cited by the Attorney-General.   In  Hamabai’s case(1)  the  observation  of Batchelor, J.  to  the  effect "General  definitions  are, I think, rather  to  be  avoided where  the avoidance is possible, and I make no  attempt  to define precisely the extent of the phrase ’public  purposes’ in  the lease; it is enough to say that, in my opinion,  the phrase,  whatever else it may mean, must include a  purpose, that is, an object or aim, in which the general interest  of the  community,  as opposed to the  particular  interest  of individuals, is directly and vitally concerned" received the approval  of the Privy Council.  Their  Lordships,  however, rejected  the  contention  that there cannot  be  a  ’public purpose’ in taking land if that land when taken is no it  in some  way  or other made available to the public  at  large. This  contention had been raised because the Government  had resumed  lands, which had been the subject of a lease and  a sana , the terms of which permitted the Government to resume the lands for any public purpose, with a view to erect (1)  [1914] L.R. 42 I.A. 44. 25 thereon dwelling houses for the use of Government  officials as their private residence on adequate rent.  The concluding portion  of the judgment of the Privy Council  is  important and  needs to be quoted.  It stated, "But here, so far  from holding  them to be wrong, the whole of the learned  judges, who  are thorough conversant with the conditions  of  Indian life,  say  that they are satisfied that the scheme  is  one which  will  redound  to  public  benefit  by  helping   the Government to maintain the efficiency of its servants.  From such  a conclusion their Lordships would be slow to  differ, and  upon  its  own statement it commends  itself  to  their judgment".   In Bhanji Munji’s case(1) the  requisition  was for housing a person having no housing accommodation.  After considering the affidavits, the facts and the  circumstances of the case, Bose, J . observed "The Constitution authorizes requisition  for  a  public purpose.  The  purpose  here  is finding  accommodation for the homeless.  If,  therefore,  a vacancy is allotted to a person who is in fact homeless, the purpose  is  fulfilled".   In  Ali  Gulshan’s  case(2)   the requisition  was for the purpose of housing a member of  the staff  of  a foreign Consulate.  This Court  held  that  the requisition was for a State purpose, which it is needless to say must be regarded as a public purpose.  An examination of these and other cases leads us to the conclusion that it  is impossible  to  precisely  define  the  expression   ’public purpose’.  In each case all the facts and circumstances will require to be closely examined in order to determine whether a  ’public  purpose’ has been established  Prima  facie  the Government is the best judge as to whether ’public  purpose’ is served by issuing a requisition order, but it is not  the

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sole  judge.   The courts have the jurisdiction  and  it  is their  duty to determine the matter whenever a  question  is raised  whether  a  requisition order is or  is  not  for  a ’Public  purpose’.  The cases of Hamabai, Bbanji  Munji  and Ali  Gulshan  are  merely illustrative.   In  each  of  them primarily  the person directly and vitally concerned  -would be the person to whom the residential accommodation would be (1)  [1955] 1 S.C.R. 777. (2) [1955] 2 S.C.R. 867, 4 26 allotted with which prima facie the general interest of  the community  would not be directly concerned at all.  We  must regard Hamabai’s case as a decision to the ,effect that  the general   interest  of  the  community  was   directly   and vitallyconcerned  with  the  efficiency  of  the  Government servants  because  it would be to its benefit to  have  such servants and, therefore, providing living accommodation  for them  was a public purpose.  The decision in  Bhan   Munji’s case  must be read as one in which the general  interest  of the  community was directly and vitally concerned with  pre- vention of lawlessness and disease and to house the homeless in  order to avoid such a contingency was a public  purpose. In Ali Gulshan’s case a State purpose was served because the State Government was interested in its own trade or commerce and  in the efficient discharge of his duties by  a  foreign Consul who would be concerned with such trade or commerce.   In  the  present  case  it is  possible  to  construe  the impugned order as a requisition on behalf of the Corporation as it does not name any individual for whom the  requisition is  being made.  In other words the  requisitioned  premises were at the disposal of the Corporation to house one of  its officers to be named later on.  Apart from that, there is  a statutory power in the Corporation under section 19 (1)  (c) of the Act to provide living accommodation for its employees and under section 14 the Corporation appoints such number of its officers and servants as it considers necessary for  the efficient performance of its functions.  It may be  assumed, therefore, that the Corporation appoints only such  officers as  are needed for the efficient discharge of its  functions and  that the State Government was requested to  requisition some premises as living accommodation for one of them  whose posting  at Bombay was necessary.  Indeed the  affidavit  of Mr.  Nadkarni,  Accommodation Officer of the  Government  of Bombay,  states that the official of the Corporation has  to perform  his  duties  in  Bombay.   Having  regard  to   the provisions of section 19 (2) (a)   and  (b) of the Act,  the power in the Corporation 27 to  provide living accommodation for its employees  must  be regarded,  as one of its statutory  activities  undersection 19(1).  Theword ’acquire’ may include the power to  purchase by agreement but is wide enough to enable the Corporation to request  the State Government to acquire property under  the Land Acquisition Act (I of-] 894) in order to provide living accommodation  for  its employees.  The  activities  of  the Corporation under section 19 (1) are so interlinked with its successful functioning as a Road Transport Corporation  that requisitioning  or  acquisition of property to  advance  and ensure  those  activities must be regarded as for  a  public purpose.  It would not be sufficient to merely establish the Corporation.   It  has  to have an  adequate  and  efficient staff,  living  accommodation forwhom would be  an  absolute need  of the Corporation. Its officers have to be  efficient in  the discharge oftheir duties, for upon them depends  the

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successful  working of the road transport system upon  which the  public  must  rely and thus it would  be  directly  and vitally  concerned with the efficiency of ’the employees  of the Corporation.  It was suggested that a line must be drawn somewhere, otherwise there was no guarantee to what  lengths the  powers  of  requisition  might  be  exercised  by   the Government.   It is sufficient to say that each  case  would have to be decided upon the facts and the circumstances  ap- pearing  therein.  Here the Corporation is a public  utility concern  and  the  general  interest  of  the  community  is directly  and vitally concerned with its activities and  its undertaking.   A  breakdown  in  the  Organisation  of   the Corporation,  leading to dislocation of the  road  transport system would create a chaotic condition to the detriment  of the   interest   of   the   community.    Providing   living accommodation  for its employees is a statutory activity  of the  Corporation and it is essential for it to provide  such accommodation in order to ensure an efficient working of the road  transport system and it must, therefore, be held  that the impugned order was validly passed under the  Requisition Act.   In the result the appeal is allowed and the decision 28 of the High Court is set aside. Costs  in  the  appeal in this Court shall be  paid  by  the appellant  to  the  respondent  as  directed  by  the  order granting Special Leave.  Each party, however, will bear  his own costs in the High Court.