TMI Blog1957 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... question as a member of her husband's family since 1938 and that the tenant aforesaid had at no material date ceased to occupy the premises. She also alleged that one Narottam Das Dharamsey Patel was a mere lodger who war, occupying a portion of the premises by leave and licence of her husband. The said Narottamdas had no interest 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 Dharamdas, the tenant, had vacated the premises in October 1952 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 stated 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 towards the end of Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitially it was to remain in force until March 31, 1950. But by the amending Act, Bombay Land Requisition (Amendment) Act, 1950 (Bombay Act No. 11 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 word,, any purpose in s. 5 of the Act. This was obviously done to satisfy the requirements of Art. 31 of the Constitution. Consequential changes were also made in ss. 6 and 7 of the Act. By s. 6 of the amending Act it was provided that The amendments made by this Act shall. be deemed to have been and always to have been made with effect from the 26th January 1950................... Thus the amendment was given retrospective operation. The provisions of ss. 5, 6 and 13 after the amendments aforesaid (omitting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch declaration shall be conclusive evidence that the premises were or had so become vacant: Explanation-For the purposes of this section, (a) premises which are in the occupation of the landlord, the tenant or the sub-tenant, as the case may be, shall be deemed to be or become vacant when such 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 any other manner of his interest in the premises or otherwise, notwithstanding any instrument or occupation by any other person prior to the date when such landlord, tenant or sub-tenant so ceases to be in occupation; 13.(1) Every order made under ss. 5, 6, 7, 8-A or 8-B or sub-section (7) of section 9 or section 12 shall- (a)if it is an order of a general nature or affecting a class of persons, be published in the mariner prescribed 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 Rule 2 of Order XXIX or Rule 3 of Order XXX, as the case may be, in the First Schedule of the Code of Civil Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance with the requirements of Art. 31(3). It has not been contended that the Act when passed on April 11, 1948, was not good law. It is also clear that the Act is not covered by the provisions of el. (6) of Art. 31. The Act is thus covered by the saving clause, el. 5(a), being an existing law other than a law to which the provisions of cl. (6) apply. The Act, therefore, would be valid even if the provisions of el. (2) of Art. 31 are not in terms fully satisfied, in so far as the Act did not before its amendment by Act XXXIX of 1950 contain the expression for a public purpose . As already pointed out, this Court in the case of The State of Bombay v. Bhanji Munji [1955] 1 S.C.R. 777. has laid it down that the Act was not 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 purpose, 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 point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he month of October 1952, as stated in the Order impugned in this 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. Another branch of the argument is that the declaration of vacancy is dependent upon a collateral fact which has to be found by the Government on such enquiry as it may deem fit and proper and its conclusion on 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 Electricity Co. Ltd. v. Province of Bombay [1948] L.R. 76 I.A. 57.at pages 65 and 66:- The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jagatchandra v. Bombay Province(A.I.R. 1950 Bom. 144.) Tendolkar J. had ruled that the declaration made by the Government shall be conclusive evidence with regard to all facts involved in the determination of vacancy but that it was not conclusive with regard to the inferences to be drawn from or the legal consequences of such facts. The correctness of that proposition was questioned in another case before another learned, Judge of that Court, Shah J., who referred it to be determined by a larger Bench. Chagla C.J. and Gajendragadkar J. (now one of us) examined that question in some detail and overruled the decision of Tendolkar J. (Vide Mohsinali Mohomed Ali v. The State of Bombay [1951] 53 Bom. L.R. 94; A.I.R. 1951 Bom, 303.. The Bombay High Court in the last mentioned case held that on a declaration being made by the State Government that there was a vacancy, it was conclusive both as to the facts and the constituent elements of vacancy , as understood under the Act. The High Court relied in this connection on the observations of the Judicial Committee of the Privy Council in Moosa Goolam Ari v. Ebrahim Goolam Ariff [1912] L.R- 39 I.A. 237. and of Lord Cairns in Peel's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder for eviction of the tenant under s. 11. 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 date of the order or under s. 6 that the premises bad becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [1893] 1 Ch. D- 4I3. In that case the Court of Appeal , had to consider the words of s. 32 of the Patents Designs Trade Marks Act, 1883 (46 47 Vict. c. 57), to the following effect:- Where any person claiming to be the patentee of any invention, by circulars, advertisements or otherwise threatens any other person With any legal proceedings......... 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 word,,; 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 gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case 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 1952. 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 question 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 the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of s. 13. In any event, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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