{"id":157804,"date":"1957-03-05T00:00:00","date_gmt":"1957-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lilavati-bai-vs-the-state-of-bombay-on-5-march-1957"},"modified":"2016-03-26T09:50:34","modified_gmt":"2016-03-26T04:20:34","slug":"lilavati-bai-vs-the-state-of-bombay-on-5-march-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lilavati-bai-vs-the-state-of-bombay-on-5-march-1957","title":{"rendered":"Lilavati Bai vs The State Of Bombay on 5 March, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Lilavati Bai vs The State Of Bombay on 5 March, 1957<\/div>\n
Equivalent citations: 1957 AIR 521, \t\t 1957 SCR 721<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P., Das, S.K., Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nLILAVATI BAI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BOMBAY\n\nDATE OF JUDGMENT:\n05\/03\/1957\n\nBENCH:\nSINHA, BHUVNESHWAR P.\nBENCH:\nSINHA, BHUVNESHWAR P.\nDAS, SUDHI RANJAN (CJ)\nAIYYAR, T.L. VENKATARAMA\nDAS, S.K.\nGAJENDRAGADKAR, P.B.\n\nCITATION:\n 1957 AIR  521\t\t  1957 SCR  721\n\n\nACT:\nPremises,   Requisition\t  of-Constitutional   validity\t  of\nenactment-Order\t of  Government on declaration\tof  vacancy-\nEnforceability-Findings,  if liable to be reopened-Power  of\nCourt-Tenancy,\twhen can be deemed to have been\t terminated-\nEjusdem\t generis, applicability of-Death of a  Party  before\nthe Passing of the Order-Effect Bombay Land Requisition\t Act\n(XXXIII Of 1948), as amended by Amendment Act 11 of 1950 and\nSecond Amendment Act XXXIX if 1950, Ss. 5, 6, 6\t Explanation\n(a)--Constitution of India, Arts. 19(1)(f), 31, 32, 226.\n\n\n\nHEADNOTE:\nBy  these  two\tpetitions,  the\t petitioner  challenged\t the\nconstitutional validity of the Bombay Land Requisition\tAct,\n1948,  as amended by the two amending Acts of 1950, and\t the\nenforceability\tof  an\torder of  requisition  made  by\t the\nGovernor  of  Bombay  under s. 6 (4) (a) of  the  Act.\t The\npetitioner  as\tthe  widow of the tenant claimed  to  be  in\npossession, while the case made on behalf of the  Government\nwas  that  the\ttenant\thad before  his\t death\tvacated\t the\npremises and handed over possession to a lodger.  A copy  of\nthe order of requisition was affixed to the premises and the\npetitioner moved the High Court for a writ of mandamus,\t but\nthe petition was dismissed.  The Act was passed by the State\nLegislature on April 11, 1948, and by the first amending Act\nits  life was extended for two years and by the\t second\t the\nwords  \"  the  purpose\tof the State  or  any  other  public\npurpose\"  were\tsubstituted  for the  words  ,,any  purpose\"\noccurring in S. 5 of the Act with retrospective effect\tfrom\nthe  date  of  the  Constitution.   The\t Act  came  up\t for\nconsideration  in  a  previous decision of  this  Court\t and\narguments   were  confined  to\tgrounds\t other\tthan   those\nspecifically covered by that decision.\tIt was contended  on\nbehalf\tof the petitioner that the Act was in conflict\twith\nArt.  3I (2) and became invalid at the commencement  of\t the\nConstitution and the amending Acts, for which the assent  of\nthe  President\thad  admittedly\t not  been  obtained,\twere\nineffective  under Art. 31 (3) of the Constitution.  It\t was\nfurther contended that ss. 5 and 6 of the Act which made the\nrelevant  findings  of\tthe Government\tconclusive  had\t the\neffect\tof  impairing the powers of the Court, that  it\t was\nnevertheless  open to the Court to judge whether  the  facts\nfound constituted vacancy in law and, lastly that the  order\nin  question was ineffective as the tenant was dead  on\t the\ndate it was made.\nHeld,\tthat  the  contentions\traised\ton  behalf  of\t the\npetitioner must be negatived.\n93\n722\nThe constitutional validity of the Act was no longer open to\nquestion  under\t Arts.\t19  (1)\t (f)  and  31  (2)  of\t the\nConstitution in view of the decision of this Court in  State\nof Bombay v. Bhanji Munji<\/a> (1955) 1 S.C.R. 777.\nThe Act, which did not obviously come within the mischief of\ncl.  (6)  of Art. 31, fell within the saving clause,  cl.  5\n(a),  of  the  Article and was an existing  law\t within\t the\nmeaning\t of  the Constitution and, therefore, valid  at\t the\ncommencement  of  the  Constitution,  although\tit  did\t not\ncontain the expression \" for a public purpose \" as  required\nby cl. (2) of the Article.\nClause\t(3) of the Article, which in terms applied  to\tlaws\nmade  after  the commencement of the  Constitution,  had  no\napplication  to\t the  amending Acts which  were\t in  no\t way\nconcerned  with the main substantive provisions of  the\t Act\nalready passed, and the want of the President's assent in no\nway affected their validity.\nAs the Act was valid at the commencement of the Constitution\nand  continued\tto be so thereafter, not being\tin  any\t way\ninconsistent  with  the\t provisions  of\t Part  III  of\t the\nConstitution so as to attract the operation of Art. 13,\t the\nAmending Acts were equally valid in law.\nHeld further, that although in a proper case the High  Court\nor this Court in the exercise of their special jurisdictions\nunder  the Constitution had power to determine how  far\t the\nprovisions of the Act had or had not been complied with, the\nfinding\t of the State Government under s. 5 Of the Act\tthat\nthe  tenant had not actually resided in the premises  for  a\ncontinuous  period of six months immediately  preceding\t the\ndate  of  the  order,and that under s.6,  the  premises\t had\nbecome vacant at about the time indicated in the order,\t are\nconclusive  and not collateral so as to be liable to be\t re-\nopened\tand  could not, therefore, be questioned  either  in\nthis Court under Art. 32 or in the High Court under Art. 226\nof the Constitution.\nRai  Brij  Raj\tKrishna v. S. K.  Shaw,<\/a>\t (1951)\t S.C.R.\t 145\napplied.\nHubli  Electricity  Co. Ltd. v. Province of  Bombay,  (1948)\nL.R. 76 I.A. 57, held inapplicable.\nMohsinali Mohomed Ali v. The State of Bombay, (1951) 53 Bom.\nL.R. 94: A.I.R. 1951 Bom. 303, referred to.\nThe  words \" or otherwise \" occurring in explanation (a)  to\ns.  6 of the Act could not be construed as  ejusdem  generis\nwith  the words immediately preceding them and must be\theld\nto  cover  all possible cases of vacancy due to\t any  reason\nwhatsoever.\nSkinner & Co. v. Shaw & Co., (I893) 1 Ch.  D. 413,  referred\nto.\nAn order of requisition passed under s. 6 (4) (a) of the Act\nwas  not  of  the nature of an order passed  in\t a  judicial\nproceeding  and\t the death of one of the parties  could\t not\nmake it wholly ineffective, the only consequence being\tthat\nhis name as one of\n723\nthe  parties  to be served under S. 13 Of the  Act  must  be\nremoved from the order.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL  JURISDICTION:\t Petition  No.\t119  of\t 1955\twith
\nPetition for Special Leave to Appeal No. 140 of 1955.
\nPetition  under\t Article  32 of\t the  Constitution  for\t the
\nenforcement of fundamental rights and petition under Article
\n136  of the Constitution for `special leave to\tappeal\tfrom
\nthe  judgment and order dated March 29, 1955, of the  Bombay
\nHigh Court in appeal No. 63 of 1954.\n<\/p>\n
Hardayal Hardy and R.Jethmalani, for the petitioner.
\nC.   K. Daphtary, Solicitor-General of India, Porus
\nA.   Mehta and R. H. Dhebar, for the respondent.; 1957.
\nMarch 5. The Judgment of the Court was delivered by
\nSINHA J.-By this petition under Art. 32 of the\tConstitution
\nand  Petition  No. 140 of 1955 for special leave  to  appeal
\nfrom  the judgment of the Bombay High Court dated March\t 29,
\n1955, in Appeal No. 63 -of 1954 confirming that of a  single
\nJudge  of  that Court dated April 21, 1954,  the  petitioner
\nchallenges   the  constitutionality  of\t the   Bombay\tLand
\nRequisition Act (Act XXXIII), 1948, hereinafter referred  to
\nas  “The  Act”, and the enforceability ‘of the\torder  dated
\nJanuary\t 27,  1954,  made  by  the  Governor  of  Bombay  in
\npursuance of s. 6(4)(a) of the Act.\n<\/p>\n
The petitioner is the widow of one Dharamdas Chellaram,\t who
\nwas  a\ttenant\tof  the\t premises  in  question.   The\tsaid
\nDharamdas  Chellaram  died  in November\t 1953,\tleaving\t him
\nsurviving his widow and a daughter.  The petitioner  alleged
\nthat  she had been occupying the premises in question  as  a
\nmember\tof  her\t husband’s family since 1938  and  that\t the
\ntenant\taforesaid had at no material date ceased  to  occupy
\nthe  premises.\t She  also alleged  that  one  Narottam\t Das
\nDharamsey  Patel  was  a mere lodger who  war,\toccupying  a
\nportion of the premises by leave and licence of her husband.
\nThe said Narottamdas had no interest
\n724<\/span>
\nin  the premises in question and had, as a matter  of  fact,
\nvacated the portion in his occupation some time in the\tyear
\n1953.  On behalf of the State of Bombay, the respondent,  it
\nhas  been stated on affidavit by the  Accommodation  Officer
\nthat  it  is not a fact that the petitioner resided  in\t the
\npremises  in question and that the facts were that the\tsaid
\nDharamdas,  the tenant, had vacated the premises in  October
\n1952  and had handed over possession of the premises to\t the
\nsaid Narottamdas Dharamsey Patel.  Hence it is alleged\tthat
\nit was not a fact that at the time of her husband’s death in
\nNovember 1953 the petitioner was residing in the premises in
\nquestion.  These facts had been stated before the High Court
\nalso on an affidavit made in opposition to the\tpetitioner’s
\ncase in the High Court.\t The petitioner’s grievance is\tthat
\ntowards\t the  end of January 1954 she found  pasted  on\t the
\nouter door of the premises an order dated January 27,  1954,
\nsaid  to have been made by the Governor of Bombay and  which
\nis said to be the occasion for her moving the High Court  of
\nBombay for a writ of mandamus against the State of Bombay to
\nrefrain\t from  giving effect to the  aforesaid\tOrder.\t The
\nOrder impugned is in these terms:-\n<\/p>\n
\t\t   “No.\t RA (1) M- 13067
\nOffice\t of  the  Controller  of   Accommodation,   Jehangir
\nBuilding, Mahatma Gandhi Road, Bombay, January 27, 1954.\n<\/p>\n
\t\t\t   Order
\nWhereas, on inquiry it is found that the premises  specified
\nbelow had become vacant in the month of October 1952 ;
\nNow,  therefore,  in  exercise of the  powers  conferred  by
\nclause\t(a)  of sub-section (4) of section 6 of\t the  Bombay
\nLand  Requisition Act, 1948 (Bombay Act XXXIII of 1948)\t the
\nGovernment  of\tBombay is pleased to  requisition  the\tsaid
\npremises for a public purpose, namely, for housing a  Bombay
\nState Government servant.\n<\/p>\n
\t\t\t Premise,s
\nFlat  No.  3 on the 1st floor of the Building known  as\t Hem
\nPrabha situated at 68, Marine Drive, Bombay.
\nBy order and in the name of Governor of Bombay.”
\nThis  Order was meant to be served on (1) Shri\tHirabhai  H.
\nPatel,\tadmittedly  the landlord of  the  premises,(2)\tShri
\nNarottam Dharamsey Patel aforesaid, and (3)  Shri  Dharamdas
\nChellaram,  who, as already indicated, was dead at the\tdate
\nthe Order was made.The petitioner challenged the validity of
\nthe  Order of requisition set out above.  Her  petition\t was
\nheard  by Tendolkar J. who by his judgment dated  April\t 21,
\n1954,  dismissed the same.  The petitioner moved this  Court
\nfor an appropriate writ, direction or order under Art. 32 of
\nthe Constitution, challenging the vires of the Act, as\talso
\nthe legal efficacy of the Order impugned.  She also filed  a
\npetition  praying  for\tspecial leave  to  appeal  from\t the
\njudgment  aforesaid  of\t the Bombay High  Court.   Both\t the
\nmatters\t have  been heard together and will be\tgoverned  by
\nthis judgment.\n<\/p>\n
Before dealing with the contentions raised on behalf of\t the
\npetitioner, it is convenient first to set out, in so far  as
\nit is necessary, the legislative history of the law impugned
\nand  its  certain salient features which  are  relevant\t for
\npurposes  of  this  case.   This  Act  was  passed  by\t the
\nProvincial Legislature of Bombay on April 11, 1948, on being
\nempowered  by  the Governor-General in\texercise  of  powers
\nconferred  on him by s. 104 of the Government of India\tAct,
\n1935.\tInitially it was to remain in force until March\t 31,
\n1950.\tBut  by the amending Act,  Bombay  Land\t Requisition
\n(Amendment) Act, 1950 (Bombay Act No. 11 of 1950)  published
\non  March 28, 1950, its life was extended up to the  end  of
\nMarch 1952.  By the amending Act, ss. 8-A, 8-B and 9-A\twere
\nadded  making substantial changes which need not be set\t out
\nhere,  as they do not enter into the controversy.  The\tlife
\nof the Act was subsequently extended further, up to the\t end
\nof  December 1958.  By the Bombay Land\tRequisition  (Second
\nAmendment)  Act,  1950\t(Act XXXIX of  1950),  the  Act\t was
\nfurther\t amended so as to substitute the words “the  purpose
\nof  the\t State or any other public purpose” for\t the  word,,
\n“any  purpose” in s. 5 of the Act.  This was obviously\tdone
\nto satisfy the requirements of Art. 31 of the
\n726<\/span>
\nConstitution.  Consequential changes were also made in ss. 6
\nand  7\tof  the Act.  By s. 6 of the  amending\tAct  it\t was
\nprovided  that\t“The amendments made by this Act  shall.  be
\ndeemed to have been and always to have been made with effect
\nfrom  the  26th\t January  1950……………….  Thus\t the
\namendment was given retrospective operation.  The provisions
\nof ss. 5, 6 and 13 after the amendments aforesaid  (omitting
\nthe  portions  not necessary for our purpose) are  in  these
\nterms :-\n<\/p>\n
“5.  (1)  If in the opinion of the State  Government  it  is
\nnecessary or expedient so to do, the State Government may by
\norder  in writing requisition any land for purpose,  of\t the
\nState or any other public purpose:\n<\/p>\n
Provided that no building or part thereof wherein the owner,
\nthe landlord or the tenant, as the case may be, has actually
\nresided\t for a continuous period of six\t months\t immediately
\npreceding the date of the order shall be requisitioned under
\nthis section.\n<\/p>\n
(2)Where any building or part thereof is to be requisitioned
\nunder sub-section (1), the State Government shall make\tsuch
\nenquiry as it deems fit and make a declaration in the  order
\nof  requisition that the owner, the landlord or the  tenant,
\nas  the case may be, has not actually resided therein for  a
\ncontinuous  period of six months immediately  preceding\t the
\ndate  of the order and such declaration shall be  conclusive
\nevidence  that\tthe  owner, landlord or tenant\thas  not  so
\nresided.\n<\/p>\n
6.(1)  If any premises situate in ail area specified by\t the
\nState  Government by notification in the  Official  Gazette,
\nare vacant on the date of such notification and wherever any
\nsuch premises are vacant or become vacant after such date by
\nreason of the landlord, the tenant or the sub-tenant, as the
\ncase may be, ceasing to occupy the premises or by reason  of
\nthe release of the premises from requisition or by reason of
\nthe premises being newly erected or reconstructed or for any
\nother  reason  the  landlord of\t such  premises\t shall\tgive
\nintimation  thereof  in the prescribed form  to\t an  officer
\nauthorised in this behalf by the State Government.\n<\/p>\n
727<\/span><\/p>\n
(4)  Whether or not an intimation under sub-section
\n(1)is  given  and  notwithstanding  anything  contained\t  in
\nsection 5, the State Government may by order in writing-\n<\/p>\n
(a)  requisition  the premises for the purpose of the  State
\nor  any\t other public purpose and may use or deal  with\t the
\npremises  for any such purpose in such manner as may  appear
\nto it to be expedient, or
\nProvided that where an order is to be made under clause\t (a)
\nrequisitioning\t the  premises\tin  respect  of\t  which\t  no
\nintimation  is given by the landlord, the  State  Government
\nshall  make  such  inquirv  as\tit  deems  fit\tand  make  a
\ndeclaration  in the order that the promises were  vacant  or
\nhad become vacant, on or after the date referred to in\tsub-
\nsection\t (1)  and  such\t declaration  shall  be\t  conclusive
\nevidence that the premises were or had so become vacant:
\nExplanation-For\t the purposes of this  section,\n<\/p>\n
(a)  premises which are in the occupation of  the  landlord,
\nthe  tenant or the sub-tenant, as the case may be, shall  be
\ndeemed\tto be or become vacant when such landlord ceases  to
\nbe in occupation or when such tenant or sub-tenant ceases to
\nbe in occupation upon termination of his tenancy,  eviction,
\nassignment  or transfer in any other manner of his  interest
\nin the premises or otherwise, notwithstanding any instrument
\nor  occupation\tby any other person prior to the  date\twhen
\nsuch  landlord,\t tenant\t or sub-tenant so ceases  to  be  in
\noccupation;\n<\/p>\n
13.(1)\tEvery  order made under ss. 5, 6, 7, 8-A or  8-B  or
\nsub-section (7) of section 9 or section 12 shall-\n<\/p>\n
(a)if  it  is an order of a general nature  or\taffecting  a
\nclass of persons, be published in the mariner prescribed  by
\nrules made in this behalf –\n<\/p>\n
(b)if  it is an order affecting an individual,\tcorporation,
\nor firm, be served in the manner provided for the service of
\na summons in Rule 2 of Order XXIX or Rule 3 of Order XXX, as
\nthe case may be, in the First Schedule of the Code of  Civil
\nProcedure, 1908 ;\n<\/p>\n
728<\/span><\/p>\n
(c)if  it is an order affecting an individual  person  other
\nthan a corporation or firm, be served on the
\nperson-\n<\/p>\n
(i)personally, by delivering or tendering to him the  order,
\nor\n<\/p>\n
(ii) by post, or\n<\/p>\n
(iii)\t  where\t the person cannot be found, by\t leaving  an
\nauthentic  copy of the order with some adult male member  of
\nhis family or by affixing such copy to some conspicuous part
\nof the premises in which he is known to have last resided or
\ncarried on business or worked for gain.\n<\/p>\n
(2)  Where  a  question\t arises whether a  person  was\tduly
\ninformed of an order made in pursuance of sections 5, 6,  7,
\n8-A  or 8-B or, sub-section (7) of section 9 or\t section  12
\ncompliance with the requirements of subsection (1) shall  be
\nconclusive  Proof  that he was so informed; but\t failure  to
\ncomply\twith the said requirements shall not preclude  proof
\nby  other  means  that he was so  informed,  or\t affect\t the
\nvalidity\t  of\t     the\t  order.(Underlining
\nours)………………….. …………. .
\nAt the outset it is necessary to state that the main grounds
\nof attack against the constitutionality of the Act based  on
\nsuch fundamental rights as are recognised by Arts.  19(1)(f)
\nand  31(2) of the Constitution must be overruled in view  of
\nthe  decision  of the Constitution Bench of  this  Court  in
\nState  of  Bombau v. Bhanji Munji<\/a> (1).\tIn  that  case\tthis
\nCourt  upheld-the validity of the Act with reference to\t the
\nprovisions  of the articles aforesaid of  the  constitution.
\nBut the learned counsel for the petitioner contended that he
\nattacked  the vires of the Act on grounds other\t than  those
\nwhich had been specifically dealt with by this Court in\t the
\ndecision  just\treferred to.  We now proceed  to  deal\twith
\nthose fresh grounds on their merits.  It was contended\tthat
\nthe  Act became invalid on January 26, 1950, inasmuch as  it
\nwas  in conflict with Art. 31(2) of the\t Constitution.\t The
\nAct  was, therefore, as good as dead by the time Act  11  of
\n1950 extending the life of the Act was enacted as aforesaid.
\nThe  Act  being void, its extension by Act II  of  1950\t was
\nequally void,
\n(1)  [1955] 1 S.C.R. 777.\n<\/p>\n
729<\/span><\/p>\n
Similarly,  it\twas  further  argued  that  the\t  amendments
\neffected  by  the amending Act II of 1950 and Act  XXXIX  of
\n1950  required\tthe  assent of the  President  and  that  as
\nadmittedly no such assent had been given, they had no effect
\nas  provided in Art. 31(3) of the Constitution.\t This  chain
\nof  submissions\t is founded on the  admitted  non-compliance
\nwith  the  requirements\t of Art. 31(3).\t  It  has  not\tbeen
\ncontended  that the Act when passed on April 11,  1948,\t was
\nnot good law.  It is also clear that the Act is not  covered
\nby  the provisions of el. (6) of Art. 31.  The Act  is\tthus
\ncovered\t by the saving clause, el. 5(a), being\tan  existing
\nlaw  other  than a law to which the provisions\tof  cl.\t (6)
\napply.\t The  Act,  therefore, would be valid  even  if\t the
\nprovisions  of\tel. (2) of Art. 31 are not  in\tterms  fully
\nsatisfied, in so far as the Act did not before its amendment
\nby  Act XXXIX of 1950 contain the expression “for  a  public
\npurpose”.  As already pointed out, this Court in the case of
\nThe  State  of Bombay v. Bhanji Munji<\/a> (1) has laid  it\tdown
\nthat the Act was not invalid even after the commencement  of
\nthe  Constitution  simply  because it  is  not\tprovided  in
\nexpress terms that the acquisition or requisition had to  be
\nfor a public purpose, provided that from the whole tenor and
\nintendment  of\tthe  Act  it  could  be\t gathered  that\t the
\nrequisition was for a public purpose, and for the benefit of
\nthe community at large.\t The amending Act only made explicit
\nwhat  had been left to be gathered from the whole  tenor  of
\nthe  Act,  as pointed out by this Court in  the\t case  cited
\nabove., The ‘argument that the amending Acts, II of 1950 and
\nXXXIX  of 1950, required the assent of the  President  under
\nel.  (3)  of Art. 31 has, therefore, no force.\t Act  11  of
\n1950, in so far as it affects the present controversy,\tonly
\nextended  the life of the Act by two years and Act XXXIX  of
\n1950  only  made  explicit what was not so  in\tthe  Act  as
\noriginally passed, and are not such laws as come within\t the
\npurview\t of  cl. (3) of Art. 31 inasmuch as those  Acts\t are
\nmerely\tan extension or explanatory of the  substantive\t Act
\nwhich  is  an  existing\t ,law  within  the  meaning  of\t the
\nConstitution.  Clause (3)
\n(1)  [1955] 1 S.C.R. 777.\n<\/p>\n
91<\/span>
\n730<\/span><\/p>\n
of Art. 31 in terms applies to a law made by the legislature
\nof  a  State, after the commencement  of  the  Constitution;
\nwhereas\t the Act had been passed in its substantive form  in
\nApril  1948.  Hence, there is no difficulty in holding\tthat
\nthe  Act which -was good law before the commencement of\t the
\nConstitution  did  not\tbecome void under  Art.\t 13  of\t the
\nConstitution, because there was nothing in the Act which was
\ninconsistent  with  the\t provisions  of\t Part  III  of\t the
\nConstitution.\t If   the  Act\twas  good  law\t after\t the
\ncommencement  of  the  Constitution,  it  follows  that\t the
\namendments  aforesaid made in 1950, were equally  good\tlaw,
\neven  though  the  assent  of the  President  had  not\tbeen
\nobtained.\n<\/p>\n
Secondly, the decision of this Court in The State of  Bombay
\nv. Bhanji Munji<\/a> (1) (supra) itself has ruled to the contrary
\nwith reference to the provisions of Art. 31 (2).  We cannot,
\ntherefore, go back upon our decision in the case  aforesaid.
\nOn  these considerations the petition under -Art. 32 of\t the
\nConstitution  must  fail on the ground that  no\t fundamental
\nrights\tof  the\t petitioner as would  entitle  her  to\tseek
\nredress from this Court, have been contravened.
\nIt  remains  to\t consider the other  arguments\tadvanced  on
\nbehalf\tof  the\t petitioner  which have\t a  bearing  on\t the
\npetition  for special leave to appeal from the\tjudgment  of
\nthe Bombay High Court.\tIt has been contended that ss. 5 and
\n6  of  the Act quoted above and underlined by us  have\tmade
\ncertain\t matters conclusive, so that the High Court or\teven
\nthis  Court  could  not go behind the  order  of  the  State
\nGovernment  holding that the tenant had not resided  in\t the
\npremises  for a continuous period of six months\t immediately
\npreceding the date of the order (s. 5), or that the premises
\nhad become vacant in the month of October 1952, as stated in
\nthe  Order impugned in this case.  It is contended that\t the
\nlegislature had, by making those provisions rendering  those
\nmatters conclusively proved, impaired the powers of the High
\nCourt under Art. 226 and of this Court under Art. 32 of\t the
\nConstitution.\tAnother branch of the argument is  that\t the
\ndeclaration  of vacancy is dependent upon a collateral\tfact
\nwhich has
\n(1)  [1955] 1 S.C.R. 777.\n<\/p>\n
731<\/span><\/p>\n
to be found by the Government on such enquiry as it may deem
\nfit and proper and its conclusion on such a collateral\tfact
\ncould  not be placed by the Act beyond scrutiny by the\tHigh
\nCourt  or  by this Court.  In this connection  it  was\talso
\nargued\tthat on the question of vacancy the finding  of\t the
\nState  Government may be conclusive on the “factual  aspect”
\nbut  not  on  the “legal aspect” of the\t matter.   In  other
\nwords, it was contended that it was still open to the courts
\nto find whether the facts found constituted in law “vacancy”
\nas  defined in the Act.\t In this connection strong  reliance
\nwas  placed  on the following observations of  the  Judicial
\nCommittee  of  the  Privy  Council  in\tthe  case  of  Hubli
\nElectricity  Co. Ltd. v. Province of Bombay(1) at  pages  65
\nand 66:-\n<\/p>\n
” The question what obligations are imposed on licensees  by
\nor  under the Act is a question of law.\t Their Lordships  do
\nnot read the section as making the government the arbiter on
\nthe  construction  of the Act or as to\tthe  obligations  it
\nimposes.   Doubtless the government must, in  expressing  an
\nopinion\t for  the purpose of the section, also\tentertain  a
\nview as to the question of law.\t But its view on law is\t not
\ndecisive.   If in arriving at a conclusion it appeared\tthat
\nthe  government had given effect to a wrong apprehension  of
\nthe obligations imposed on the licensee by or under the\t Act
\nthe  result would be that the Government had  not  expressed
\nsuch an opinion as is referred to in the section.”
\nThere are several answers to this contention.  In the  first
\nplace,\tit  is\twell settled  that  observations  made\twith
\nreference  to  the  construction of one\t statute  cannot  be
\napplied with reference to the provisions of another  statute
\nwhich  is not in pari materia with the statute\twhich  forms
\nthe  subject matter of the previous decision.  The  Judicial
\nCommittee was dealing with the provisions of s. 4(1) of\t the
\nIndian\tElectricity  Act, 1910, which did  not\tcontain\t the
\nwords  “conclusive  evidence” or any words to  that  effect.
\nThat decision of the Judicial Committee, if it can at all be
\napplied to the Act now before us, is against the  petitioner
\nin so far as
\n(1)  [1948] L.R. 76 I.A. 57.\n<\/p>\n
732<\/span><\/p>\n
it  has\t construed  the words  “opinion\t of  the  Provincial
\nGovernment”.  Those words or words of similar import  appear
\nin  the\t beginning  of s. 5. In the words  of  the  Judicial
\nCommittee, those words signify the subjective opinion of the
\nGovernment  and not an opinion subject to  objective  tests.
\nThe  observations  quoted above only show that on  a  proper
\nconstruction  of the provisions of the statute\tthen  before
\nthe Judicial Committee, the opinion of the Government, if it
\nwas  made  nonjusticiable, was confined to the\tquestion  of
\nwhether there had been a willful and unreasonably  prolonged
\ndefault,  but did not cover the question-of the\t opinion  of
\nGovernment  relating  to  the -obligations  imposed  by\t the
\nstatute\t on the licensee, by or under the Act.\tHence  those
\nobservations   are  absolutely\tof  no\tassistance  to\t the
\npetitioner  on the question of the full implication  of\t the
\nrule making certain matters “conclusive evidence” under\t the
\nprovisions of ss. 5 and 6 of the Act.  This question appears
\nto  have  been canvassed in a number of cases  in  the\tHigh
\nCourt  of  Bombay.  In the case of  Jagatchandra  v.  Bombay
\nProvince(‘) Tendolkar J. had ruled that the declaration made
\nby  the Government shall be conclusive evidence with  regard
\nto  all facts involved in the determination of\tvacancy\t but
\nthat it was not conclusive with regard to the inferences  to
\nbe drawn from or the legal consequences of such facts.\t The
\ncorrectness  of that proposition was questioned\t in  another
\ncase  before another learned, Judge of that Court, Shah\t J.,
\nwho referred it to be determined by a larger Bench.   Chagla
\nC.J.  and  Gajendragadkar J. (now one of us)  examined\tthat
\nquestion  in  some  detail and\toverruled  the\tdecision  of
\nTendolkar  J.  (Vide Mohsinali Mohomed Ali v. The  State  of
\nBombay(2).  The Bombay High Court in the last mentioned case
\nheld  that  on\ta  declaration\tbeing  made  by\t the   State
\nGovernment that there was a vacancy, it was conclusive\tboth
\nas  to the facts and the constituent elements of  “vacancy”,
\nas understood under the Act.  The High Court relied in\tthis
\nconnection on the observations of the Judicial
\n(1)  A.I.R. 1950 Bom. 144.\n<\/p>\n
(2)  [1951] 53 Bom.  L.R. 94; A.I.R. 1951 Bom, 303.\n<\/p>\n
733<\/span><\/p>\n
Committee  of  the  Privy Council in  Moosa  Goolam  Ari  v.
\nEbrahim\t Goolam\t Ariff(1)  and\tof  Lord  Cairns  in  Peel’s
\ncase(2),  and  of  Lord Parker of  Waddington  in  Bowan  v.
\nSecular Society Ltd.(3).\n<\/p>\n
In  this connection the learned counsel for  the  petitioner
\nalso  pressed  in  aid\tof  his\t argument  the\twell   known
\ndistinction between the jurisdiction of a court or authority
\nto  decide  a  certain\tfact as one of\tthe  issues  in\t the
\ncontroversy  and  certain  collateral  facts  on  which\t the
\njurisdiction  to determine the controversy could arise.\t  It
\nwas  argued that the finding on the question of\t vacancy  by
\nthe  State  Government was a “jurisdictional  fact”  in\t the
\nsense that unless it was found that there was a vacancy, the
\njurisdiction of the State Government to make the declaration
\nand  to\t requisition  the permises could  not  arise.\tThis
\naspect\tof the matter has been considered by this  Court  in
\nthe  case  of  Rai  Brij  Raj  Krishna\tv.  S.\tK.  Shau   &
\nBrothers<\/a>(4).   That case concerned the construction  of\t the
\nprovisions of the Bihar Buildings (Lease, Rent and Eviction)
\nControl Act (Bihar Act 111) of 1947.  This Court held  that,
\nthe  Controller\t had been vested with  the  jurisdiction  to
\ndetermine  all questions including the question\t whether  or
\nnot there was non-payment of rent and on finding that  there
\nwas default in the payment of rent, with the jurisdiction to
\norder  eviction of the tenant.\tThe finding of the  question
\nof default was not a jurisdictional finding in the sense  in
\nwhich  learned\tcounsel for the petitioner asks us  to\thold
\nwith  reference\t to the finding of the State  Government  in
\nthis  case that there has been a vacancy.  In  the  reported
\ncase this Court held further that even if the Controller had
\nwrongly\t decided the question of default in the\t payment  of
\nrent, his effective order oil the question of eviction could
\nnot be- challenged in a court of law.  Mr. Justice Fazl\t Ali
\ndelivering  the judgment of the court made reference to\t the
\nwell  known observations of Lord Esher, M.R. in the case  of
\nQueen v. Commisssioners for Special Purposes of the  Income-
\ntax(“) and to
\n(1)  [1912] L.R- 39 I.A. 237.\n<\/p>\n
(2)  [1867] L.R. 2 Ch.\tApp. 674.\n<\/p>\n
(3)  [1917] A.C. 406.\n<\/p>\n
(4)  [1951] S.C.R. 145.\n<\/p>\n
(5)  [1888] 21 Q.B.D. 313, 319.\n<\/p>\n
734<\/span><\/p>\n
the  observations  of the Privy Council in the case  of\t the
\nColonial Bank of Australasia v. Willan(1).  After  referring
\nto  those observations and to the provisions of the  statute
\nthen  before  the  Court,  this\t Court\theld  that  the\t Act
\nempowered  the\tController alone to decide  whether  or\t not
\nthere  was  ‘non-payment  of  rent  and\t that  decision\t was
\nessential  to his order for eviction of the tenant under  s.\n<\/p>\n
11.   That  decision of the Controller,\t the  Court  further
\nheld,  could  not  be challenged in a  court  of  law.\t The
\ndecision   of  this  Court  just  referred  to\tis  an\t apt
\nillustration  of the rule which applies with equal force  to
\nthe provisions of the Act now before us.  The Act has made a
\nspecific  provision to the effect that the determination  on
\nthe  questions referred to in ss. 5 and 6 of the Act by\t the
\nState  Government  shall  be  conclusive  evidence  of\t the
\ndeclaration  so\t made.\t But that does\tnot  mean  that\t the
\njurisdiction  of  the High Court under Art. 226 or  of\tthis
\nCourt  under Art. 32 or on appeal has been impaired.   In  a
\nproper case the High Court or this Court in the exercise  of
\nits  special  jurisdiction under the  Constitution  has\t the
\npower  to  determine how far the provisions of\tthe  statute
\nhave or have not been complied with.  But the special powers
\naforesaid  of this Court or of the High Court cannot  extend
\nto reopening a finding by the State Government under s. 5 of
\nthe  Act  that the tenant has not actually  resided  in\t the
\npremises  for a continuous period of six months\t immediately
\npreceding  the\tdate  of the order or under s.\t6  that\t the
\npremises  bad become vacant at about the time  indicated  in
\nthe order impugned.  Those are not collateral matters  which
\ncould on proper evidence be reopened by the courts. of\tlaw.
\nThe  legislature in its wisdom has made\t those\tdeclarations
\nconclusive  and\t it is not for this Court to  question\tthat
\nwisdom.\n<\/p>\n
As  an\toffshoot  of the argument that\twe  have  just\tbeen
\nexamining it was contended on behalf of the petitioner\tthat
\nExplanation (a) to s. 6 quoted above contemplates a  vacancy
\nwhen  a tenant omitting other words not necessary) ”  ceases
\nto be in occupation upon
\n(1)  [1874]5 P.C. 417,443.\n<\/p>\n
735<\/span><\/p>\n
termination  of\t his  tenancy, eviction,  or  assignment  or
\ntransfer in any other manner of his interest in the premises
\nor otherwise “. The argument proceeds further to the  effect
\nthat   in   the\t instant  case\tadmittedly  there   was\t  no
\ntermination,  eviction, assignment or transfer and that\t the
\nwords ” or otherwise ” must be construed as ejusdem  generis
\nwith  the,  words  immediately\tpreceding  them:  and\tthat
\ntherefore  on  the facts as admitted even in  the  affidavit
\nfiled  on  behalf  of the Government there  was\t in  law  no
\nvacancy.   In  the  first place, as  already  indicated,  we
\ncannot go behind the declaration made by the Government that
\nthere  was  a  vacancy.\t In the second place,  the  rule  of
\nejusdem\t generis  sought  to  be  pressed  in  aid  of\t the
\npetitioner   can   possibly  have   no\t application.\t The
\nlegislature  has been cautious and thorough-going enough  to
\nbar all avenues of escape by using the words ” or  otherwise
\n“. Those words are not words of limitation but of  extension
\nso  as\tto cover all possible ways in which  a\tvacancy\t may
\noccur.\t Generally  speaking, a tenant’s occupation  of\t his
\npremises  ceases when his tenancy is terminated by  acts  of
\nparties\t or  by\t operation  of law or  by  eviction  by\t the
\nlandlord  or  by  assignment or\t transfer  of  the  tenant’s
\ninterest.  But the legislature, when it used the words ”  or
\notherwise “, apparently intended to cover other cases  which
\nmay  not come within the. meaning of the preceding  clauses,
\nfor example, a case where the tenant’s occupation has ceased
\nas a result of trespass by a third party.  The\tlegislature,
\nin  our\t opinion, intended to cover all\t possible  cases  of
\nvacancy occurring due to any reasons whatsoever.  Hence, far
\nfrom  using those words ejusdem generis with  the  preceding
\nclauses of the explanation, the legislature used those words
\nin  an all inclusive sense.  No decided case of\t any  court,
\nholding that the words “or otherwise” have ever been used in
\nthe  sense  contended for on behalf of the  petitioner,\t has
\nbeen brought to our notice.\n<\/p>\n
On  the other hand, by way of illustration of  decisions  to
\nthe contrary may be cited the case of Skinner & Co.
\nv.   Shew & Co. (1).  In that case the Court of Appeal
\n(1) [1893] 1 Ch.  D- 4I3,
\n736<\/span>
\nhad to consider the words of s. 32 of the Patents Designs  &
\nTrade  Marks  Act,  1883  (46 & 47  Vict.  c.  57),  to\t the
\nfollowing effect:-\n<\/p>\n
“Where\tany  person  claiming  to be  the  patentee  of\t any
\ninvention,   by\t circulars,  advertisements   or   otherwise
\nthreatens any other person With any legal
\nproceedings………\n<\/p>\n
Their  Lordships repelled the contention that the words\t “or
\notherwise” occurring in that section had to be read  ejusdem
\ngeneris\t  with\t“circulars”,  and  “advertisements”.\tThey
\nobserved  that\tby so doing they will be  cutting  down\t the
\nintendment of the provisions of the statute when clearly the
\nword,,;\t “or  otherwise”  had  been  used  with\t a  contrary
\nintention.   The rule of ejusdem generis is intended  to  be
\napplied\t where\tgeneral\t words\thave  been  used   following
\nparticular  and\t specific words of the same  nature  on\t the
\nestablished  rule  of  construction  that  the\t legislature
\npresumed  to  use the general words in a  restricted  sense;
\nthat  is  to  say, as belonging to the\tsame  genus  as\t the
\nparticular  and specific words.\t Such a\t restricted  meaning
\nhas  to be given to words of general import only  where\t the
\ncontext of the whole scheme of legislation requires it.\t But
\nwhere  the  context  and  the object  and  mischief  of\t the
\nenactment  do  not  require such restricted  meaning  to  be
\nattached to words of general import, it becomes the duty  of
\nthe  courts  to give those words their\tplain  and  ordinary
\nmeaning.   In our opinion, in the context of the object\t and
\nmischief  of  the  enactment  there  is\t no  room  for\t the
\napplication  of\t the  rule of  ejusdem\tgeneris.   Hence  it
\nfollows\t that the vacancy as declared by the order  impugned
\nin  this  case,\t even though it may not be  covered  by\t the
\nspecific  words\t used,\tis certainly covered  by  the  legal
\nimport of the words “or otherwise”.\n<\/p>\n
The only other contention which remains to be dealt with  is
\nthat  the  order impugned in this case\tis  not\t enforceable
\nbecause\t it was directed against the  petitioner’s  husband,
\nwho was dead at the date of the order, besides the other two
\npersons\t indicated  in it who were not\tconcerned  with\t the
\npremises.   In\tour opinion, there is no substance  in\tthis
\ncontention  either.  An order like the one passed  under  s.
\n6(4)(a) of the Act
\n737<\/span>
\nis  not\t in the nature of an order in  judicial\t proceedings
\nbetween\t the  Government on the one hand and  other  parties
\nnamed.\t If the proceedings were intended by the Act in\t the
\nsense  of  judicial or\tquasi-judicial\tproceedings  between
\nnamed parties, it may have been legitimately argued that  an
\norder passed against a dead man is a complete nullity.\t But
\nthe  order proceeds on the basis that the tenant had  ceased
\nto  be\tin  occupation\tof the\tpremises  in  October  1952,
\napparently  by\treason of the fact that he had\thanded\tover
\npossession  of\tthe premises to the so\tcalled\t“lodger”  or
\n“paying\t guest”.  Admittedly the petitioner’s  husband\tdied
\nafter October 1952.  The occupation by the said\t Narottamdas
\nDharamsey  Patel  was  in  the\tnature\tof  an\tunauthorised
\noccupation.  The fact that the petitioner’s husband was dead
\non the date of the order impugned has only this effect\tthat
\nin  so far as it mentions his name as one of the persons  to
\nbe  served under s. 13 of the Act should be erased from\t the
\norder But even so, it does not affect the enforceability  of
\nthe same.  S. 13 lays down the different modes of service of
\nan order passed under the Act according as the order is of a
\ngeneral\t nature\t or  affecting\ta class\t of  persons  or  an
\nindividual, corporation or firm.  We are here concerned with
\nthe case of an individual and the section lays down that  it
\ncan  be served either personally by delivering or  tendering
\nthe order to him or by post or where he cannot be found,  by
\naffixing a copy of the order to some conspicuous part of the
\npremises in which he is known to have last resided.  As\t the
\npetitioner’s  husband had died before the date of the  order
\nimpugned,  it could affect only the so called  “lodger”\t who
\nhad  been,  on\tthe  findings, left  in\t occupation  of\t the
\npremises after October 1952.  He has not made any  complaint
\nabout  non-service.   The  only other person  who  could  be
\naffected by the order, if at all, is the petitioner herself.
\nShe  has  admitted  that she came to know of  the  order  in
\nquestion  at  about the time it had been made,\tbecause\t she
\nfound  a copy of the order affixed at the outer door of\t the
\npremises.  Thus admittedly, the petitioner had timely notice
\nof
\n95<\/span>
\n738<\/span>
\nthe  order impugned.  Hence in the instant case there is  no
\nneed  to apply the rule of conclusive proof as laid down  in
\nsub-s. (2) of s. 13.  In any event, as the concluding  words
\nof the section have provided, any irregularity or failure to
\ncomply\twith the-requirements of the section cannot  “affect
\nthe validity of the order”.\n<\/p>\n
As  all the grounds urged in support of the petitions  fail,
\nthey are dismissed with costs, one set.\n<\/p>\n
Petitions dismiss`ed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Lilavati Bai vs The State Of Bombay on 5 March, 1957 Equivalent citations: 1957 AIR 521, 1957 SCR 721 Author: B P Sinha Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P., Das, S.K., Gajendragadkar, P.B. PETITIONER: LILAVATI BAI Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 05\/03\/1957 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-157804","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLilavati Bai vs The State Of Bombay on 5 March, 1957 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lilavati-bai-vs-the-state-of-bombay-on-5-march-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lilavati Bai vs The State Of Bombay on 5 March, 1957 - 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