LILAVATI BAI versus THE STATE OF BOMBAY

S.C.R. SUPREME COURT REPORTS

LILAVATI BAI

THE STATE OF BOl\fBAY

(S. R. DAS c. ]., VENKATARAMAAYYAR, B. P. SINHA, S. K. DAs and GAJENDRAGADKAR JJ.)

Premises, Requisition rif-Constitutional ,1alidity of enactment-Order of Government on declaration of vacancy-Enforceabilit;·-Findings, if liable to be reopened-Power of C:ourt-Tenancy, when can be deemed to have been terminated-Ejusdem generis, applica-bility of-Death of party before the passing of the Order-Ejfect-Bombay Land Requisition Act (XXXIII of 1948), as amended by ·-..( Amendment Act II of 1950 and Second Ame?dment Act XXXIX ef 1950, ss. 5, 6, 6 Explanation (a)-Constitutzon of Indza, Arts. 19(1) (f), 31, 32, 226.

By these t'.vo petitions, the petitioner challenged the constitu-tional validity of the Bombay Land Requisition Act, 1948, as amended by the two amending Acts of 1950, and the enforceability .of an order of requisition made by the Governor of Bombay under s. 6 (4) (a) of the Act. The petitioner a' the widow of the tenant claimed to be in possession, while the case made on behalf of the Government was that the tenant had before his death vacated the premises and handed ovc.r possession to lodg.o:r. copy of the order of requisition was affixed to the premises and the petitioner moved the High Court for writ of inandamus, but the petition was dismissed. The Act was passed by the State Legislature on April I l, 1948, and by the first amending Act its life was extended for two years and by the second the vvords "the purpose of the State or any other public purpose" 'vere substituted for the \VOrds "any purpose" occurring in s. 5 o[ the Act \Vith retrospective effect from the date of the Constitution. The Act came up for consideration in previous decision of this Court and arguments were confined to grounds other than those spocifically covered by that decision. It was contended on behalf. of the petitioner that the Act was in conflict with Art. 31 (2) and.became invalid at the cor:imencement of the Constitution and the c..mending Acts, for which the assent of the President had admittedly not been obtained, were ineffective under Art. 31(3) of the Constitution . It was further contended that ss. 5 and 6 of the Act which made the relevant findings of the Government conclusive had the effect of impairing the powers of the Court, that it was nevertheless open to the. Court to judge whether the facts found constituted yacany. in law . and, lastly that the order in questi.on \vas ineffective as the tenant was dead on the date it v1as made.

Hdd1 that the contentions raised on behalf of the petitioner must be negatived.

1957 March 5.

Lilavati Bai v. The State of Bombay

'fhc constitutional validity of the Act \Vas no longer open to question under Arts. 19(1)(f) and 31 (2) of the Constitution in vie\v of the decision of this Court in State of Bombay v. Bhanji Munji (1955) 1 S.C.R. 777·

'fhe J\ct, \vhich did not oliviously come \Nithin the mischief of cl. (6) of Art. 31, fell within the saving clause, cl. 5(a), of the Article and \Vas an existing law \Vitbin the meaning of the Constitution and, therefore, valid at the commencement of the Constitution, although it did not contain the expression "for public purpose" as required by cl. (2) of the i\rticle.

Clause (3) of the Article, \vhich in terms applied to la\VS made after the commencement of the Constitution, had no application to the an1cnding Acts v·:hich \Vere in no \vay concerned \\'ith the n1ain substantive provisions of the Act already pa5sed, and the \Vant of the President's assent in no \Vay affected their validity.

As the Act was valid at the commencement of the Con':>Litu~ tion and continued to be so thereafter, not being in any \Vay inconsist~nt \vith the provisions of Part III of the Constitution so as to attract the operation of Art. 13, the Amending Acts \\·ere equally valid in la"'·

Held further, that although in proper case the High Court or this Court in the exercise of their special jurisdictions under the Constitution had po\ver to determine how far the provisions of the Act had or had not been complied \vith, the finding of the State Government under s. 5 of the Act that the tenant had not actually resided in the premises for continuous period of six 1nonths immediately preceding the date of the order, and that under s. 6, the pr~mises had become Vl:'.cant at about the time indicated in the ord-::r, are cJnclusive and not collateral so as to be liable to be re-opened and could not, therefore, be questioned either in this Court under Art. 32 or in the High Court under Art. 226 of the Constitution.

Rai Brij Raj Krishna v. S. K. Shaw (1951) S.C.R. 145 applied.

Hub!i Electricity Co. Ltd. v. Province of Bombay, (1948) L.R. 76 I.A. 57, held inapplicable.

Mohsinali Mohomed Ali v. The State of Bombay, (1951) 53 Bom. L.R. 94: A.1.R. 1951 Born. 303, referred to.

The \vords "'or other\vise" occurring in explanation (a) to s. 6 of the .. t\ct could not be construed as ejusdem generis with the \vords immediately preceding them and must be held to cover all possible cases of vacancy due to any reason whatsoever.

Skinner & Co. v. Shaw & Co., (1893) 1 Ch. D. 413, referred to. An order of requisition passed under s. 6(4)(a) of the Act \vas not of the nature of an order passed in judicial proceeding and the death of one of the parties could not mako it wholly in effecti\·c, the only consequence being that his name as one of

S.C.R. SUPREME COURT REPORTS

the ]XL· ties to be served under s. 13 of the Act must be remon,J from the order.

ORIGINAL JuRISDICTION : Petition No. I I9 of 1955 with Petition for Sepcial Leave to Appeal No. I40 of I955· .

. Petition under Article 32 of the Constitution for the enforcement of fundamental rights and petition under Article l 36 of the Constitution for special leave to appeal from the judgment and order dated March 29, 1955, of the Bombay High Court in appeal No. 63 of 1954·

Hardayal Hardy and R. ]ethmalani, for the peti-tioner. C. K. Daphtary, Solicitor-General of India Porus

A. Metha and R. H. Dhebar, for the respondent.

I957· March 5. The Judgement of the Court was delivered by

SINHA J.-By this petition under Art. 32 of the Constitution and Petition No. I40 of I955 for special leave to appeal from the judgment of the Bombay High Court dated March 29, 1955, in Appeal No. 63 of I954 confirming that of single Judge of that Court dated April ~n, l 954, the petitioner challenges the constitu-tionality of the Bombay Land Requisition Act (Act XXXIII), I 948, hf'.reinafter referred to as "The Act" and the enforceability of the order dated January, 27, I954, made by the Governor of Bombay in pursuance of s. 6(4) (a) of the Act.

The petitioner is the widow of one Dharamdas Chellaram, who was tenant of the premises in ques- ' tion. The said Dharamdas Chellaram died in Novem-ber I 953, leaving him surviving his widow and daughter. The petitioner alleged that she had been occupying the premises irf question as member of her husband's family since I938 and that the tenant afore-said had at no material date ceased to occupy the premises. She also alleged that one Narottam n~1s Dharamsey Patel was mere lodger who vvas oc; 1';iy~ ing portion of the premises by leave and Jiccn. t of her husand. The said Narottamdas had no intucst

1957 Li/avati Bai v. The Stale ef Bombay

Sinha],

LiilavaJi Bai v. Thr State of Bomba_y Sinha J.

Sl[1]PREME COURT REPORT~

in the premises in question and had, as 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 fact that the petitioner resided in the premises in question and that the facts were that the said Dharctmdas, the tenant, had vacated the premises in October 19.12 and had handed over possession of the premises to the said Narottamdas Dharamsey Patel. Hence it is alleged that it was not 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 st~ted 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 toward the end of January 1954 she found pasted on the outer door of the premises an order dated January 27, 1954 said to have been made by the Governor of Bombay and which is ;aid to be the occasion for her moving the High Court of Bombay for writ of mandamus against the State of Bombay to refrain from giving eJICct to the aforesaid Order. The Order impugned is in these terms

"No. RI\ I 1) M-13067

Office of the Controller of Accommodation,

Jehangir Building, l\fahatma Gandhi Road, Bombay, January, 27, 195+

Order

\\"hcreas, on inquiry it is found that the premises

spccifif'd below had become vacant in the month of October 1952 ;

Now, therefore, in exercise of the powecs conferred by clause (a) of sub-section (4) of section 6 of the Bombay Lane! Requisition Act, 1948 (Bombay Act XXXIII of 1948) the Gm·ernment of Bombay is pkasecl to requisition the said premises for public purpo namely, for housing Bombay State Govern-ment servant.

Premises

flat ;\o. 3 on the 1st floor of the Building known

as Hem Prabha situated at 68, Marine Drive, Bombay.

S.C.R. SUPREME COURT REPORTS .

By order and in the name of Governor of Bombay." This Order was meant to be served on ( l) Shri Hira-bhai H. Patel, admittedly the landlord of the premises, (2) Shri Narottam Dharamsey Patel aforesaid, and (3) Shri Dharamdas Chellaram, who, as already indi-cated, was dead at the date the Order was made. The petitioner challenged the validity of the Order of requisition set out above. Her petition was heard by Tendolkar J. who by his judgment dated April 21, 1954, dismissed the same. The petitioner moved this Court for an appropriate writ, direction or order under Art. 32 of the Constitution, challenging the vires of the Act, as also the legal efficacy of the Order impugned. She also filed petition praying for special leave to appeal from the judgment aforesaid of the Bombay High Court. Both the matters have been heard together and will be governed by this judgment. Before dealing with the contentions raised on behalf of the petitioner, it is convenient first to set out, in so far as it is necessary, the legislative history of the law impugned and its certain salient features which are relevant for purposes of this case. This Act was passed by the Provincial Legislature of Bombay on April l 1, l 948, on being em powered . by the Governor-General in exercise of powers conferred on him by s. 104 of the Government of India Act, l 935. Initially it was to remain in force until March, 31, 1950. But by the amending Act, Bombay Land Requisition(Amendment) Act, 1950 (Bombay Act No. II 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 words "any purpose" in s. 5 of the Act. This was obviously done to satisfy the requirements of Art. 3 l of the

1957 Lilavati Bai V. I~ The State of Bombay Sinha].

1957 Li!at1;ti Bai "· The State of Bombay Sinha].

Cor,sritution. Consequential changes \\ere also me.de in ss. 6 <'nd 7 of the Act. By s. 6 of the amending Act it v:"s proYiciccl that "The amendments made by this ,\ct shall be deemed to ha·:e been and ahrnys to h«YC been ll1'1c:e with effect from the 26th Janua;·y 1950, ..... ". Tines the 2mendrnent was gi\-en rctrospcctiYc operation. The pru\·isions of ss. 5, 6 and I 3 <eftcr the amc,,dmcnts aforesaid \omitting the portions not necessary for our purpose) arc in these terms :-

".'· ( 1) If in the opinion of the State Government

it is necessary or expedient so to do, the State GoYern-ment may by order in writing requisition any land for puij,ose of the State or 01ry other jJUb/ic jm1j1osc :

Provided that no building or part thereof wherein the O\\ner, the lanc:jord or the tenant, as the case may be, has actually resided for continuous periorl of six months immediately preceding the date of the order shall be requisitioned under this section.

( 2) Where any building or pan thereof is to be requisitioned under sub-section (r), the State GO\ern-mcnt shall make such enquiry as it deems fit and make declaration in the order or requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for continuous period of six months immediately preceding the date of the order and such declaration shall lie conclusive evidnzce that the owner, landlord or tenant has not so resided.

6. ( 1) If any premises situate in an area specified by

the State Government by notification in the Official Gazette, are vacant on the elate of such notification and wherever any such premises are vacant or become yacant after such date by reason of the landlord, the tenant or the wb-tenanL as the case may be, ceasing to occupy the premises or by reason of the release of th" premise' from requisition or by reason of the premises bf'ing nc\\·ly erected or reconstructed or for any other reason the l;mdlorcl of such premises shall give intima-tion thereof in the prescribed form to an officer authorised in this behalf by the State Government.

:c>UPRE~lE COURT REPORTS

(4) \Vhether or not an intimation µnclcr suL-section ( 1) is given and notwithsta11ding anything contained in section 5, the State Government may by order in --writing

(a) i·cquisitiun tlie premises for the purpose ufthe State or any other public purpose and may use or deal with the premises for any such purpose in such manner as rnJy appear to it to be expedient, or

Provided that where an rm\cr is to be made under clause (a) ffquisitioninu; the premises in respect of which no intimation is gin'.ll by the landlord, the State GoYCrnment shall make such inquiry as it deems fit and make declaration in the order that the premises were vacant or had become vacant, on or after the date referred to in sub-section ( 1) and such declaration shall be conclusive evidence that the premises were or had so become vacant :

Explanation-For the purposes of this section,-

( a) premises which art". in the occupatir:ll of the landlord, the tenant or the sub-tenant, as tl;c case may be, shall be decm1'.d to be or become vacant when :,11ch 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 anv other manner of hi~ interest in the premises or otherwise, not withstanding any instrument or occupation by any other person prior to the date when wch landlord, tenant or sub-tenant so ceases to be in occupation;

1 3. ( 1) Every order made under ss. 5, 6, 7, 8-A or 8-B or sub-section ( 7) of section or section 12 shall-( a) if it is an order of general nature or affecting cb:,s of persons, be published in the manner pm:cribecl by rules made in this behalf ; (b) if it is an order affecting an individual, corpo-ration, or firm, be served in the manner provided for the service of summons in Ruic 2 of Order XXIX or Rule 3 of Order XXX, as the case may be, in the First Schedule of the Code of Civil Procedure, 1908 ;

Li/a,,ali Bai v. The State qf Bombay Sinha].

1957 Lilavati Bai V, I'k State of Bombay Sinha].

[I 95 7)

(c) ifit is an order affecting an individual person other than corporation or firm, be served on the person·-

(i) personally, by cleliverillg or tendering to

him the order, or

\;i) by post, or

(iii) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous ;Jart of the premises in which he is k:iown to ha\'e last resided or carried on business or worked fo~ g-ain.

(2) \\'here question arises whether person \\'aS duly informed of an order made in pursuance of sec-tions :1, 6, 7, 8-A or 8-B or, sub-section (7) of section 9 or section 1 2 compliance with the requirements of sub-section i 1) shall be conclusi11e proof that he was so informed ; but failure to con·1ply with the said require-ments shal! not preclude proof by other means that he was so informed, or affect th~ validity of the order.

............................ ". (Gnderlining ours). At the outset it is neccss;,ry to state that the ma:n grouncls of attar,k against the constitutionality of the Act based on such fundamental rights ;ls are recognised by Ans. 19!1)([) and 31 (2) of the Constitution must be o\·erruled in view of the decision of the C01•stitution Bench r,f this Court in State of Bombay v. Bhanji Munji ('). In that case this Court upheld the validity of the Act with reference to the provisions of the a;·ticles aforesaid of the Constitution. But the learned counsel for the netitioner comended that he attacked the 1'ircs of the Act on grounds other than those which had hccn speciiically dealt with by this Court in the clec;sion jus.t referred to. \Ve now proceed to deal with those fresh grounds on their merits. It was contended that the Act became invalid on January 26, 1950 inasmuch as it was in conflict with Art. 3r(2) of the Constitution. The Act was, therefore, as good as dead by the time Act II of 1 950 extending the life of the Act was enacted as aforesaid. The Act being void, its extension by Act II of 1950 was equally void. (1) fI93:J] Is. c. R. 777.

S.C.R. SUPREME COURT REPORTS

Similarly, it was further argued that the amendments effected by the amending Act II of 1950 and Act XXXIX of 1950 required the assent of the President and that as admittedly no such assent had been given, they had no effect as provided in Art. 3 l ( 3) of the Constitution. This chain of submissions is founded on the admitted non-compliance with the requirements of Art. 3 l (3). It has not been contended that the Act when passed on April l l, r 948, was not good law. It is also clear that the Act is not covered by the provi-sions of cl. (6) of Art. 3 I. The Acr is thus covered by the saving clause, cl. 5(a), being an existing law other than law to which the provisiom of cl. (6) apply. The Act, therefore, would be valid evefl if the provisions of cl. ( 2) of Art. 3 l are not in terms fully satisfied, in so far as the Act did not before its amendment bv Act XXXIX of r950 contain the expression "for public purpose". As already pointed out, this Court in the case cf T!te State of Bombay v. Blzanji Munji ([1]) has laid it down that the Act was 11ot 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 public purpose, provided that from the whole tenor and intendment of the Act it could be gathered that the requisition was for public purpo·,e, 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 pointed out by this Court in the case cited above. The argument that the amending Acts, II of 1950 and XXXIX of 1950, required the assent of the President under cl. (3) of Art. 3 l has, therefore, no force. Act II of 1950, in so far :rs it affects the present con-troversy, only extended the life of the Act by two years and Act XXXIX of 1950 only made explicit what was not so in the Act as originally passed, and are not such laws as come within the purview of cl. (3) of Art. 31 inasmuch as those Act3 are merely an extension or ex-planatory of the substantive Act which is an existing law within the meaning of the Constitution. Clause (3}

11) [1955] 1 S. C.R. 777.

Li/avati Bai v.

The State of Bombay Sinha].

1957 Li!avati Bai V. The State of Bomhqy Sinha].

SUPREME COURT KEPORTS

of Art. 3 r in terms applies to law made by the legislature of State, after the commencement of the Constitution ; whereas the Act had been passed in its substantive form in April I 948. Hence, there is no difficulty in holding that the Act which was good law before the commencement of the Constitution did not become void under Art. I 3 of the Constitution, because there was nothing in the Act which was inconsistent with the provisions of Part III of the Constitution. If the Act ~rns good law afte'!" the commencement of the Constitution, it follows that the amendments aforesaid made in 1950, were eqnally good law, even though the assent of the President had not been obtained.

Secondly, the decision of this Court in The State of Bombay v. Bhanji Mv11ji (') (snpra) itself has ruled to the contrary with reference to the provisions of Art. 31 (2) . V\'e cannot, therefore, go back upon our decision in the case aforesaid. On these considerations the pc•i-tion under Art. 32 of the Constitution must fail on the ground that no fundamental rights of the petitioner as would entitle her to seek redress from this Court, h~.,·c been contravened.

It remains to consider the other arguments advance! on behalf of the petitioner which have bearing on the petition for special leave to appeal from the judgement of the Bombay High Court. It has been contended that s;. 5 and 6 of the Act quoted above and under-lined by us have made certain matters conclusive, so that the High Court or even this Court could not go behind the order of the State Government holding that the tenant had not resided in the premises for continuous period of six months immediately precerling the date of the order (s. 5), or that the premises had become vacant in the month of October 19.')2, as stated in the Order impugned in thie 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. Anotl,~r branch of the argument is that the declaration of vacancy is dependent upon collateral facl ,-.hich has

(1) [19:,51 1 $.C.R. iii·

S.C.R. SUPREME COURT REPORTS

to be found by the Government on such enquiry as it may deem fit and proper and its conclusion ori such 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 Eiectricity Co Ltd. v. Province ef Bombay ([1]) at pages 65 and 66 :--

"The question what obligations are imposed on licensees by or under the Act is question of law. Their Lordships do not read the section as making the government the arbiter on the construction of the Act or as to the obligations it imposes. Doubtless the government must, in expressing an opinion for the purpose of the section, also entertain view as to the question of law. But its view on law is not decisive. If in arriving at conclusion it appeared that the government had given effect to wrong apprehension of the obligations imposed on the licensee by or under the Act the result would be that the Government had not expressed such an opinion as is referred to in the section."

There are several answers to this contention. In the first place, it is well settled that observations made with reference to the construction of one statute cannot be appHed with reference to the provisions of another stamte which is not in pari materia with the statute which forms the subject matter of the previous decision. The .Judicial Committee was dealing with the provi-sions of s. 4 (I) of the Indian Electricity Act, I 910, which did not contain the words "conclusive evidence" or any words to that effect. That decision of the Judicial Committee, if it can at all be applied to the Act now before us, is against the petitioner in so far as (1) [1948] L. R. 76 I. A. 57.

Lilavati Bai v. The State ef Bombay Sinha].

Lilavati Bai v. T~ Stat~ of Bombay Si.ma].

it has construed the words "opinion of the Provincial Government". Those words or words of similar import appear in the beginning of s. 5. In the words of the Judicial Committee, those words signify the subjective opinion of tht; Government and not an opinion subject to objective tests. The observations quoted above only show that on proper construction of the provisions of the statute then before the Judicial Committee, the opi-nion of the Government, if it was made non-justiciable, was confined to the question of whether there Lad been wilful and unreasonably prolonged default, but did not cover the question of the opinion of Govern-ment relating to the obligations imposed by the statute on the licensee, by or under the Act. Hence those observations are absolutely of no assistance to the petitioner on. the question of the full implication of the rule making certain matters "conclusive evidence" under the provisions of ss. 5 and 6 of the Act. This question appears to ha\·e been canvassed in number of cases in the High Court of Bombay. In the case of ]agatchandra v. Bomba)' Province (1) TGndolkar J. had ruled that the declaration made by the Government shall be "conclusive evidence with regard to all facts involved in the determination of v.1cancy but that it was not conclusive with regard to the iafcrences to be drawn from or the lcg't! conseque:1ces of such focts. The correctness of that proposition was questioned in anothc:r case before another learned J u<lge of that Court, Shah J., who referred it to be determined b,· larger Bench. Chagla C. J. and Gajcndragadkar J. (now one of us) examined that question in some detail and O\·erruled the decision of Tendolkar J. (Vide 1Hohsinali Mohomed Ali v. The State of Bomba_y(')). The Bombay High Court in the last r1entioned case held that on declaration being made by the State Government that there "·as vacancy, it was conclusive both as t0 the facts and the constituent elements of "vacancv". ;tS understood under the Act. The High Court reiie,'l in this connection on the observations of the Judicial

(1) ,.\.LR. 1950 Il•Jn1. 144.

(2) [1951] 53 Boin.L.H. ~.J.; :\.I.R. :951 Born. 303.

S.C.R. SUPREME COURT REPORTS

Committee of the Privy Council in Moosa Goo/am Arif! v. Ebrahim· Goolam Ariff(1) and of Lord Cairns in Peel's case([2]), and of Lord Parker of. Waddington in Bowan v. Secular Society Ltd. (3).

In this connection the learned counsel for the peti-tioner also pressed in aid of his agrument the well known distinction between the jurisdiction of court or authority to decide certain fact as one of the issues in the controversy and certain collateral facts on which the jurisdiction to determine the controversy could arise. It was argued that the finding on the question of vacancy by the State Government was "jurisdic-tional fact" in the sense that unless it was found that there was vacancy, the jurisdiction of the State Government to make the declaration and to requisition the premises could not arise. This aspect of the matter has been considered by this Court in the case of Rai Brij Raj Krishna v. S. K. Shaw & Brutlzers ([4]). That case concerned the construction of the p!'ovi-sions sion .. of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Bihar Act III) of 190· This Court held that the Controller had been vested with the jurisdiction to determine all questions including the question whether or not there was non-payment of rent and on finding that there was default in the payment of rent, with the jurisdiction to order eviction of the tenant. The finding of the question of default was not jurisdic-tional finding ~n the sense in which learned counsel for the petitioner asks us to hold with reference to the finding of the State Government in this case that there has been '.l vacancy. In the reported case this Court held further that even if the Controller had wrongly decided the question of defatilt in the payment of rent, his effective order on the question of eviction could not be challenged in court of law. Mr. Justice Fazl Ali delivering the judgment of the court made reference to the well known observations of Lord Esher, M.R. in the case of Queen v. Commis-sioners for Special Purposes of the Income tax(5) and to

(1) [1912] L.R. 39 I.A. 237

(4) [:951] S.C.R. 145.

(5) [1888] 21 Q.B.D. 313, 319.

(2) [18G7J L.R. 2 Ch. App. 674.

(3) [1917] A.C 406.

Lilavati Bai ~. The Stale OJ Bombay Sinha].

1957 Lilavati Bai v. TJ,e State qf Bombay Sinha].

[ [1]95 7 J

the observations of the Privy Council in the case of the Colonial Bank of Australasia v. Willan('). After referring to those observations and to the provisions of the statute then before the Court, this Court held that the Act empowered the Controller alone to decide whether or not there was non-payment of rent and that decision was essential to his order for eviction of the tenant under s. r r. That decision of the Controller, the Court further held, could not be challenged in 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 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 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 finding by the State Government under s. 5 of the Act that the tenant has not actually resided in the premises for continuous period of six months immediately preceding the elate of the order or under s. 6 that the premises had become vacant at about the time indicated in the order impugned. Those are not collateral matters which could on proper evidence be reopened by the courts of law. The legislature in its wisdom has maclc those declarations conclusive and it is not for this Court to question that wisdom.

As an offshoot of the agrument that we have just been examining it was contended on behalf of the petitioner that Explanation :a) to s. 6 quoted above contemplates vacancy when tenant (omitting other words not necessary) "Ceases to be in occupation upon

(1) [1H-;+} 5 l'.C: ·1-17·4-t-3

termination of his tenancy, eviction, or assignment or

transfer in any other manner of his interest in the premises or otherwise". The argument proceeds further to the effect that in the instant case admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words imme-diately preceding them ; and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. In the fir$t place, as already indicated, we cannot go behind the declaration made by the Government that there v1·as vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise". Those words arc not words of limitation but of extension so as to cover all pos~ible ways in which vacancy may occur. Generally speaking, tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tellant's interest. But the legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meanint, of the preceding clauses, for example, case where the tenant's occupation has ceased as result of trespass by third party. The frgislature, in our opinion, intended to cover all lJo;;sible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "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. ('). In that case the Court of Appeal [1) [1893] 1 Ch. .. p3. 2-99 s. c. I./59

Lilavati Bai v. The State of Bombay Sinha].

Lilavati Bai v. The State of Bomba)' Sinha],

had to consider the words of s. 32 of the Patents, Designs & Trade Marks Act, 1883 (46 & 47 Viet. c.57), to the following effect :-"\\There any person claiming to be the patentee of any invention, by circulars, advertisements or other-wise threatens any other person with any legal procee mgs d[. ]............... ,, .

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 words "or otherwise" had been used with 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 general words in restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. In our opinion, in the context of the object and mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words "or otherwise".

The only other contention which remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioner's husband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either. An order like the one passed under s. 6(4) (a) of the Act

is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against dead man is complete nullity. But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over posses-sion of the premise~ to the so called "lodger" or "paying guest". Admittedly the petitioner's husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation. The fact that the peti-tioner's husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under s. I 3 of the Act should be erased from the order. But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of general nature or affecting class of persons or an individual, corporation or firm. We are here concerned with the ca5e 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 I 952. 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 questiou at about the time it had been made, because she found copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of

Li/1JDaJi Bai v. TM Stale ef Bombay Sinha].

1957 Lilai'ali Baj v. Tk Stole ef llomba; Sin.ha J~

1957 March 7.

the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid dmrn in sub-s.(2) of s. 13. In any event, as the concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order".

As all the g,rounds urged in support of the petitions fail, they are dismissed with costs, one set.

Petitions dismissed.

SOHANLAL

THE UNION OF INDIA ( BHAGWATI, jAGANNADHADAs, ]AFER IMAM, Gov1NDA MENON and J. L. KAPUR JJ.)

Jl'rit ~f mandamus-Disputed qulstions of fact and !aw-Disf,11!e rrgarding tit/e-T1[1]hether ronrf£1' by U!~Y of writ approj1riate -l1.litt! writ can issue to private iu_dividual-~S'tate illegally evicting jJtrso11 fronl house-.A1wther person takzug possession bona fide u:ith-out !:11ou1/edge qf illegal eviction-r1[1]hether ivrit can t"ssue against such j;enon-Consti!ution ~f India, Art. 226 . .J, displaced person, "'·as.found /1ri1nafacie entitled to allot-ment of~. house and the Accomn1od~tion Officer moved his family into the house on I\1ay 10, 1952, but no letter of allotment ,\·as issued to him. Later, ,\·hen certain facts became knc\vn which in tht" opinion of the Union of India disentitlcd J to the allotment, he "·as informf'"<l that the house could not be allotted to him. J \vas c,·icted fr01n the house on September 27, 1952, ,...,.·ith-out being gi,·en 1 s days notice as reqnircd hy s. 3 of the Public Premise-; Eviction Act (XXVII of i950). ~fhe house \Vas then allotted to S and he \\·as given possession on October 3, 1952. J filed petition under Art. 226 of the Constitution in the High Court. The High Court ordered the Union of India and also S to restore possession of the house to J. S appealed.

He!d, that the High Court erred in issuing the writ of .111a1;da1nus.

There ,\·as secious dispute on questions of fact bet\veen the paTties and also 'vhether J had acquired any title to the property in dispute. Proceedings by \vay of \\Tit \\'ere not approp1iate in ;"J. case \\·here the decision of the Cou;:t \Yould amount to decree declaring party's title and ordering restoration of poss:!s-sl.nn. The proper remedy in such case is by \\'ay 'of title suit in 'A Civil (:011rt. The alternati\-e rem~dy of obtaining relief by