THE STATE OF BOMBAY versus ALI GULSHAN

THE STATE OF BOMBAY

ti. ALI GULSHAN.

Is. R. DAS, ACTING C.J., BHAGWATI, VENKATARAMA AYYAR, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.]

Lu11;titutiun of India-Article 31-Public purpose-Bombay Land Requisition Act, 1948 (Bombay Act XXXlll of 1948), s. 6( 4) (a )-Requisition for public purpose of certain prrmises by the State of Bombay--For 'housing member of the rtaff of foreign consulate' -Whether the requisition was made for 'public purpose' within the meaning of the Act.

Held, that the Government of Bombay was entitled, under clause (a) of sub-section· ( 4) of s. 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for pub-lic purpose, certain premises for 'housing member of the staff of foreign consulate'.

The purpose for which the requisition was made was "public purpose" within the meaning of the Act; and the requisition was made in this case more as State purpose than as Union purpose.

In any eYent "other publiC purpose", is category distinct from "Union purpose" and "State purpose" and the acquisition or requi-sitioning of property by the State except for rhe purpose of the Union, is within its competence under item 36 of the State List.

An undertaking may have three different fucets or aspects and may serve the purpose of State; the purpose of the Union and general public purpose. Even if one may regard the requisition of room for the accommodation of member of consulate as one appertaining to Union purpose, it does not necesfarily cease to be State purpose or general public purpose. Therefore on this view also, the requisition in the present case must be held to have been validly made.

Courts should lean against construction which would render words. in statute mere surplusage.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 229 of 1953.

Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated ·the 16th December 1952 of the Bombay High Court in Appeal No. 110 of 1952.

M; c. s~t'alvad; Attoriu·y-General of lndi,,

(PMttS

1955 Ottoher 4 •.

1955 The State of Bombay v. Ali Gulshan

A. Mehta and R. H. Dhebar, with him) for the appcl-!ant.

Rajinder Narain for the respondent.

1955. October 4. The judgment of the Court was delivered by

CHANDRASEKHARA AtYAR J.-Was the Government of Bombay entitled, under clause (a) of sub-section ( 4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act. XXXIII of 1948), to requi-sition, as for public purpose , certain pr<miscs for "housing member of the staff of foreign con-sulate"?, is the question we have to consider in this appeal, which has arisen out of writ petition filed under article 226 of the Constitution by the respon-. dent in the Bombay High Court to restrain the State of Bombay from taking such action.

On the hearing of the petition before Tendolkar, J., the State succeeded on the ground that the purpose for which the requisition was made was "public purpose" within the meaning of the Act. But, on appeal, it was held that though the requisition was for public purpose, the requisition order was invalid, as 1 he public purpose must be either purpose of the Union, or purpose of the State and in thi• parti-cular case tbc accommodation being required · for housing member of foceign Consular staff was Union purpose, which was outside the scope of the powers of the State. ·

Clause (a) of sub-section (4) of section 6, omitting portions unnecessary for our present purposes, runs in these terms:-

"The State Government may, by order in writing, requisition the premises for the purpose of State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may' appear to it to be expedient".

The. validity of the Act is not questioned as un-constitutional or as beyond the scope of the legisla-tive competence of the State. As the premises were required for housing member of the staff of Con-

sulate, there can be no doubt that it was wanted for public purpose.

The ultimate source of authority to requisition or acquire property is be found in article 31 of the Con-stitution. The requisition or acquisition must :.,e for public purpose and there must be compensat10n. This article applies with equal force to Union legisla-tion and State legislation. Items 33 and 36 of List I & List II 'of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legis-latures to enact laws with respect to them.

The reasoning by which the learned appellate Judges of the Bombay High Court reached their con-clusion is shortly this. There can be no public pur-pose, which is not purpose of the Union or pur-pose of the State. There are only these two cate-gories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the State". The provision of accommodation for mem-ber of the foreign consulate staff is "purpose of the Union" and not "purpose of the State". We are unable to uphold this view as regards both the standpoints. Item 33 in the Union Legislative List (List I) refers to "acquisition or requisitioning of property for the purposes of the Union". Hem 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of ihe Union, subject to the provisions of entry 42 of List III". Item 42 of the Concurrent Legislativ.:: List (List III) speaks of the "the purpose of the Union or of State or for any other public purpose". Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose. Though every State pur-pose or Union purpose must be public purpose, it is easy to think of cases where the purpose of the ac-quisition or requisition is neither the one nor the other but public purpose. Acquisition of sites for the bulding of hospitals or educational institutions by private benefactors will be public purpose,

The State of Bombay v. Ali Gulshan Chandrasekhara AiJ!ar J.

The State of Bombay v. Ali Gulshan Chandrasekhara Aiyar J.

though it will not strictly be State or Union pur-pose. When we speak of State purpose or Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or section of the public. Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at heart, will fall within the third category above-mentioned.

With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" are restricted to public purpose which is also purpose of the State, has ;carcely any application. Apart from the .fact that the· rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be distiµct genus, which must com-prise more than one species, before the rule can be applied. If the words "any other public purpose" in the Statute in question . have been used only to mean State purpose, they would become mere surplusage; Courts should lean against such construction as far as possible.Even . if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommoda-tion for the staff of foreign consulate is Union purpose and not State purpose. Item 11 in the Union list specifies "diplomatic, consular and trade repre-sentation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution,• the executive power of the Union shall extend to all such matters. It can hardly be said · that securing room for member of the staff of foreign consulate amounts to providing for consular representation, and that therefore it is purpose of the Union for which the State cannot legislate. .It was conceded by Mr. Rajinder Narain, Counsel for

the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of . Consul in modem times are to pro-tect the interests and promote the commercial affairs of the State which he represents, and that his powers, p:rivileges and immunities are not analogous to those of an ambassador. The trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State. We are inclined to regard the purpose for which the requisition was made in this case more as State pur-pose than as Union purpose. In any event, as already pointed out, "other public purpose" is distinct category for which the State of Bombay can legislate, .as the acquisition or requisi-tioning of property except ·· for the purposes of the Union, is within its competence under item 36 of the State List. There is another way of looking at the question in-volved. An undertaking may have · three different facets or aspects, and niay serve the purpose of State. the purpose of the Union and. general public pur-pose. ·. Even if one may regard the requisition of room for the accommodation of member of Con-sulate as one appertaining to Union purpose, it does not necessarily cease to be State purpose or gene-ral public purpose. In this view also, the requisition in this case must be held to have been validly made. For the reasons given above, the appeal is allowed and the order of Tendolkar J. is restored with costs . payable to the appellant by the respondent through-out. ·

The State of Bombay v. Ali Gulshan

Chandrasekhar Aryar ].