Toomu Chandriah and Others vs The Civil Administrator

Srinivasa Chari, J.—These are three applications filed by three residents of Kammameth for the issue of a writ of certiorari to quash the order of the Civil Administrator Warangal, dated 16-10-1950; requisitioning the houses of the Applicants. The brief facts which have given rise to these applications are as follows: On 21-9-1950, the Deputy Civil Administrator, Kammameth, issued a notice stating that the three buildings of Mr. Seetaramiah (Naramneni) of Pinapake were required for Government purposes for the quarters of the Additional First Taluqdar and his Office and requested the owners to hand over the buildings to the Tahs.ildar, Kammameth by 30-9-1950. It is stated that on receipt of this notice the three Applicants before us (1) Nagella Sitaramiah, (2) Toram Chandriah and (3) Venkat Reddy filed applications before the Civil Administrator, Warangal, protesting against the requisitioning of the bungalows. Later on, on 16-10-1950, the Civil Administrator, Warangal, issued an order requisitioning the above buildings under Rule 66A, Defence of Hyderabad Regulation of 1352 Fasli by which ho called upon the Applicants to deliver possession of the said buildings before 20-10-1950 to the Tahsildar, Kammameth.

The Applicants being aggrieved by this order of the Civil Administrator filed the present applications in this Court for the issue of a writ of certiorari on 27-10-1950. They also filed applications supported by affidavits praying for the grant of stay of the order of the Civil Administrator pending disposal of these applications. The stay applications were granted by a Division Bench of this Court and notice of these applications was issued to the Civil Administrator of Warangal. The Civil Administrator filed his counter to these applications. We heard arguments of the Advocate for the Applicants and the Government Advocate in extenso.

Various contentions were raised by the learned Advocate for the Applicants impugning the order of the Civil Administrator: (a) The first contention is that the Defence of Hyderabad Regulation could not continue to remain in the Statute Book after the coming into force of the Constitution and must be deemed to have been repealed for the reason that the subject of Defence is one occurring in List (I), (namely the Union List) in the Schedule to the Constitution of India and as all matters mentioned in List I were exclusively matters for legislation by the Parliament, the State of Hyderabad could not legislate with regard to ''Defence''; consequently it was argued that the Defence of Hyderabad Regulation could not be regarded as valid law. In support of this argument the learned Advocate for the Applicants relied upon Article 246 of the Constitution which enacts that ''Parliament would have exclusive power to make laws with respect to any of the matters enumerated in List I in the 7th Schedule.

The next point made out in this connection was that in the Adaptation of Laws Order of 1950 the Defence of Hyderabad Regulation had not been modified, altered or adapted, and therefore that Regulation could not be regarded as extant law. The Advocate further argued that the Nizam had declared by a Firman of 23-11-1949, that the Constitution of India shall be the Constitution for Hyderabad, and that the Constitution of India would supersede, abrogate all provisions which were against the Constitution and inasmuch as the Defence of Hyderabad Regulation was an enactment with reference to a subject about'' which the Central Legislature alone had the power to legislate, it was against the Constitution and therefore was not enforceable. On the basis of these contentions the learned Advocate urged that the order passed by the Civil Administrator of Warangal purporting to act under Rule 66A of the Rules passed under the Defence of Hyderabad Regulation was ''ultra vires''. The duty of Courts to hold an enactment as ''ultra vires'' is one of great gravity.

At the outset I would like to point out that the first argument of the learned Advocate is extremely fallacious and based on a misapprehension of the law. No doubt legislation with regard to the Defence of India is a matter within the exclusive province of the Parliament of India. It is not safe to determine the subject of the legislation by the name that the particular enactment bears or the label that is put on it, nor would it be sound to examine the legislation in bulk. It has to be observed that the Defence of Hyderabad Regulation is not a Regulation which pertains only to the law relating to the defence of Hyderabad. The Regulation contains within it laws with regard to other matters as well. It is more or less a bundle of several pieces of. legislation. The Regulation contains Rules and Orders about various matters and every such matter about which Rules and Orders have been passed might very well be regarded as a separate enactment under the appropriate subject. The Regulation also contains the Orders and Rules passed with a view to maintain law and order. It also contains rules relating to the maintenance of services essential to the life of the community. In this connection what we have to look to is what is the particular subject with reference to which the rule now impugned has been passed. Does that subject come within the category of any one of the subjects mentioned in List I of the Schedule to the Constitution of India?

If the subject came within the category of any of the subjects mentioned in List I then the law pertaining to that subject would be invalid if passed by the State Legislature. If it came under any of the subjects enumerated in, the Concurrent List (List 2) and if any provision of the State Law was inconsistent with the provision of the Central Enactment the Central Enactment would prevail. As regards the acquisition and requisition of properties these items of subjects occur in List I, List II and List III. In List I they are item 33, in List II they occur as item 36, and as item 42 in List III. Decidedly the State can pass laws with regard to ''acquisition'' and ''requisition''. Therefore, if the law cover;-; any of the subjects mentioned in List II or List III, the State Legislature would be competent to legislate and the law would be ''intra vires''. Sometimes the powers of the Central Legislature and those of the State Legislature overlap and in such cases it has been considered advisable to apply what is called the rule of ''Pith and Substance.''

While invoking this rule Sir Maurice Gwyer C.J. of India observed in the case of AIR 1941 47 (Federal Court) as follows:

It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list touches also on a subject in another list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of Statutes being declared invalid because the Legislature, enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved ... whereby the impugned Statute is examined to ascertain its ''Pith and Substance'' or its true nature and character.

Even if there is an encroachment on the legislative authority of another Legislature it would not matter, for the doctrine of Pith and Substance'' saves incidental encroachment, so long as the law impugned is in its essence within the legislative competency of the Legislature by which it was passed. This view receives support from the decision of the Supreme Court in the case of the State of Bombay v. Narottamdas AIR 1051 SC 69 at p. 96 (B). The preamble to the Defence of Hyderabad Regulation would show that the Regulation was passed for a number of objects amongst which one of the objects is the maintenance of public order. The Preamble runs thus:

Whereas an emergency has arisen which renders it necessary to provide for special measures to ensure the public safety : and interest and the defence of H.E.H. the Nizam''s Dominions...Now, therefore, H.E.H. is pleased to make and promulgate the following Regulation....

A reference to the Preamble of the Defence of India Act would also show that it was passed not merely for the purposes of Defence but also for the other purposes mentioned in the Preamble. One of the purposes is as mentioned above, the public safety and interest or in other words the maintenance of public order. ''Public Order'' is the first item in the list of subjects on which the State is empowered to legislate. Item is Public Order (but not including the use of Naval, Military, or Air Forces or any other armed forces of the Union in aid of the Civil power)''. It would not, therefore, be correct to say that'' the maintenance of public order was not a subject within the legislative competence of the State.

It is no good attacking the Defence of Hyderabad Regulation in an abstract manner that it is ''ultra vires'' but it ought to be shown which enactment under the Regulation is ''ultra'' vires''. Courts are concerned only with the power to enact statutes not with the wisdom. It could not be said because the Defence of Hyderabad Regulation was passed primarily with a view to the Defence of Hyderabad, any law passed thereunder would be regarded as a law passed for the purpose of defence. Requisitioning of property might ultimately prove useful for the defence of Hyderabad, a territory of India. That would not make it a legislation for the Defence of Hyderabad simpliciter. I am, therefore, of opinion that the argument that the Defence of Hyderabad Regulation can no longer be regarded as an existing law cannot hold good. If the Defence of Hyderabad Regulation is a law which is extant then the order of the Civil Administrator under Rule 66A of the Rules under the Defence of Hyderabad Regulation is not ''ultra vires''.

It was very strongly argued that the De-fence of Hyderabad Regulation was a piece of Emergency Legislation which could not continue to be in force eternally. As has been discussed by me above, no doubt, the legislation was introduced primarily for the Defence of Hyderabad but the fact that the Preamble says that it is a regulation intended for the defence of Hyderabad would not restrict its scope if the provisions of the Regulation extended far beyond the scope of merely the defence of Hyderabad. If authority were needed for this proposition, the leading case decided by the Privy Council would be in point Secretary of State v. Maharaja of Bobili AIR 1919 PC 52 (C). In this connection Maxwell on Interpretation of Statutes--9th Edition, page 48 may also be noted.

A subsidiary argument was also advanced before us that Rule 67 of the "Rules under the Defence of Hyderabad Regulation which gave the power to the executive to requisition buildings was omitted and, therefore, it was no longer open to the Government to requisition any building. This argument has absolutely no force. It would appear that the Rules were amended) and Rule 66A was added to the Rules and under Rule 66A it was provided that if the President in Council deemed it necessary for the maintenance of Public Order, he might requisition any property moveable or immovable. Inasmuch as Rule 66A covered all kinds of Immovable property including land or house it was not thought necessary to retain Rule 67 and Rule 67 as also Rule 70 and 74 of the Rules were omitted. Instead of having one rule viz., Rule 67 for the acquisition of building, and Rule 74 for the requisition of moveable property one comprehensive Rule viz., Rule 66A was incorporated.

The next argument of the learned Advocate was that the order could not stand because it offended Article 31, Constitution of India. He elaborated his argument in this regard by stating that under Article 31, Constitution of India no property moveable or Immovable could be taken possession of or acquired for public purposes unless the law provided for the awarding of compensation for such property taken possession of or acquired. The learned Advocate tried to make out that under the Rule viz., Rule 66A under which the Civil Administrator of Warangal purported J to acquire the property, there was no provision for the payment of compensation for the property acquired; therefore, this was directly in 1 conflict with Article 31, Constitution of India.

Here again it must be pointed out that the learned Advocate has manifestly fallen, into an error. Section 18, Defence of Hyderabad Regulation clearly lays down that where Immovable property is acquired for public purposes compensation shall be paid. The manner in which compensation is to be determined is set out under the various Clauses to Section 18. The procedure that is to be followed in cases where there is no agreement as regards the amount of compensation is clearly set out in Clauses (b) to (e) of the aforesaid Section. According to Clause (e) of the Section where an arbitrator is appointed it is mandatory that he should conform to the provisions of Section 18, Land Acquisition Act and all matters relating to the payment of compensation shall be governed by Section 18, Land Acquisition Act.

In this connection it has to be observed that where there are different statutes in ''pari materia'', they shall be taken and construed together. Lord Mansfield''s dictum in the case of R. v. Lozdale (1758) 1 Burr 445 (D), has to be borne in mind. Statutes are said to be in ''primavera'' where both relate to the same person or things or same class of persons or things. There is also a presumption that statutes relating to the same subject-matter were enact-ed in accord with the same legislative policy. In the case before us Rule 66A, Defence of Hyderabad Regulation in so far as it relates to Requisitioning or Acquisition of property should be deemed to be a law in ''pari materia with the Land Acquisition Act. It is an accepted principle relating to the interpretation of statutes that where a single Section of an Act is introduced in an-other Act it must be read in the sense which it bore in the Act from which it was taken, and it is permissible to refer to the whole of the Act although one Section has been borrowed, vide in this connection the observations of Lord Blackburn in ''Mayor of Portsmouth v. Smith'' (1885) 10 AC 304 at p. 371 (E). The two statutes being in ''primavera'', and one of the Sections of one statute namely Section 18, Land Acquisition Act has been borrowed and incorporated in Section 18(e), Defence of Hyderabad Regulation and therefore one can fall back upon what Section 18, Land Acquisition Act says regarding it as part of Section 18, Defence of Hyderabad Regulation. This would, therefore, show that provision has been made for compensation being awarded to the person whose property is acquired in the same way as compensation is awarded when land is acquired under the Land Acquisition Act.

The learned Advocate made a distinction without a difference when he argued that what was being acquired was a building and not land and the Section merely provided for the acquisition of land and there was no provision for payment of compensation when houses were acquired. This argument on the face of it appears to be untenable. The word ''Land'' is a generic term, and is used in the same sense as Immovable property. The word ''Land'' is more comprehensive, it includes, houses, mill, other buildings in its legal acceptation. Rule 66A empowers the Government to acquire for the purposes mentioned in the said rule any property moveable or immovable, and surely it cannot be deemed (doubted?) that Immovable property includes building. Land has been defined in the Land Acquisition Act as including things attached to the earth or permanently fastened to anything attached to the earth. When Immovable property includes, folding and land also includes that which is attached to the land it would merely amount to a quibbling of words to say that land is not included in the Immovable property mentioned in It. CCA or that it does not bear the same definition as is mentioned in Section 2, Land Acquisition Act. Therefore, this portion of the argument that [houses are not covered by Section 18, Defence of (Hyderabad Regulation also fails.

A further argument was advanced by the learned Advocate for the Applicants that there is a distinction between the Defence of India Act and the Defence of Hyderabad Regulation and referring to Section 15, Hyderabad Regulation the learned Advocate argued that the words occurring in Section 15 are significant. The words are ''kam-az-kam'' (the least). He argued that this Section contemplated the acquisition of property without the least inconvenience being caused to the owner thereof. He said that similar words do not occur in the Defence of India Act, and therefore the power of requisitioning authority under the Defence of Hyderabad Regulation was very much more restricted than the similar authority under the Defence of India Act. A subtle point of law also was sought to be raised in this connection. It was urged that although as to whether the property was required for a public purpose was a matter left to the requisitioning authority, still inasmuch as before requisitioning it he had to see that the least inconvenience was caused to the owner, there was an objective test imposed herein and where the authority did not consider as to whether it caused the least inconvenience, he could not be said to be acting within his jurisdiction. This argument on the face of it appears to be an argument advanced to circumvent the decision of the Supreme Court in the case of Province of Bombay Vs. Kusaldas S. Advani and Others, .

It is now settled law so far as India is concerned that the matter as to whether a land is required for a public purpose is one for the satisfaction of the requisitioning authority and only a subjective test is what is contemplated and not an objective test. There is no duty cast upon the Government to determine judicially whether a certain purpose is a public purpose or not. Fazl Ali J., observed in the case referred to above as follows:

The Executive authorities have often to take quick decisions and it will be going too far to say that in doing so they are discharging any judicial or quasi-judicial functions.

Das J., in the same case while discussing the English cases in this regard state''s:

In other words, the authority is made the sole judge of the existence of the purpose for otherwise it cannot form its opinion as to the necessity or expediency of doing the act for that purpose.

The existence of a public purpose as well as the necessity to requisition property is a composite whole left to the opinion of the Government. Whether requisitioning of the property is absolutely necessary or not is a matter to be decided by him. He is a competent authority to requisition cannot be denied if he thinks it necessary or expedient to requisition for the purposes mentioned in Rule 66 (sic). The matter cannot be more tersely put than in the words of the same learned Judge, Das J.,

To whom would the Provincial Government give notice that it proposed to decide this issue of the existence or otherwise of a public purpose. Who would be interested to deny the existence of such purpose. Province of Bombay Vs. Kusaldas S. Advani and Others, at p. 252 (F).

The words ''kamazkam'' appearing in Section 15 of the Regulation can only mean that a restriction is placed on the requisitioning authority to exercise the discretion in favour of requisitioning any property, only where, according to him, it is absolutely necessary to requisition.

Mr. Appa Rao, the learned Advocate for the Applicants urged strongly that Section 15, Defence of Hyderabad Regulation was mandatory and not directory, and that the authority seeking to exercise the power of requisitioning shall interfere with the enjoyment of the property as little as possible. This duty cannot be held to amount to an ouster of a discretion vested in the authority to determine as to whether the property should be acquired or not, if it is necessary for ensuring public safety and maintenance of Public Order. In the corresponding provision of the Defence of India Act almost the same words have been used. This Section can only be regarded as directory and not mandatory for to hold the Section to be mandatory would lead to disastrous results, and Government cannot function. No duty is imposed on the authority to act judicially. This view of mine receives support from the judgment of the Madras High Court in the case Kewalram Vs. Collector of Madras, .

The next question that remains to be considered is as to whether the Respondent was satisfied that it was for a public purpose that the houses were being requisitioned. Paragraph 4 of the counter filed by the Civil Administrator would show clearly that it is for the purpose of maintenance of public order that these houses are being requisitioned. Judicial notice can be taken of the fact that Kammameth is a place infested with rank communists and is regarded as the strong-hold of violent Communists who commit acts of violence. It was, therefore, imminently necessary that arrangements should be made by way of Police and Military control, for the maintenance of law and order and for the protection of the life and property of the residents of the place and surroundings. If this is not a public purpose, what else could be regarded as a public purpose? In the counter filed by the Civil Administrator, Warangal, it has been explained in detail as to why there is dire necessity for requisitioning buildings for occupation by Government officials. When for the purpose of housing the office of officers whose services are very necessary for the maintenance of peace and tranquility in the area other houses are necessary and the houses of the Applicants are available, it cannot be said that the houses are not being requisitioned for a public purpose; primarily Governments exist for the maintenance of social order. The Applicants have not been able to show any ''mala fides'' on the part of the Civil Administrator in singling out the Applicants while requisitioning the houses for the accommodation of officers. I am, therefore, of opinion that the ingredient of there being a public purpose and the necessity for houses has been established in this case.

As is often done the last argument that was advanced was that it offended the right of equal protection of laws conferred under Article 14, Constitution of India, and therefore the order was bad. I am afraid this is also a very feeble argument. As was held by a Pull Bench of this Court in the case of Gesulal v. State of Hyderabad AIR 1951 Hyd 89 (H) there can be no violation of the principle of equal protection of laws or equality before the law where it has not been shown that there has been a deliberate discrimination or a voluntary singling out of any one person or persons in enforcing an order.

The case reported in Mahboob Begum v. Hyderabad State AIR 1951 Hyd 1 (FB) (I), relied upon by the learned Advocate can have no application. In that case a Full Bench of this High Court held that the Waliuddowla Succession Act offended Article 14 of the Constitution because it was a special law passed with reference to the succession to the estate of Waliuddowla and there could be no such discriminatory legislation passed. In that case by that legislation the rights of Kadiran Bi and Mahboob Begum who were entitled to certain rights were denied and clearly the Court regarded it as a discrimination. It is no good relying upon that case because the very same case is now in appeal before the Supreme Court and is ''sub judice''. In the case before us there is no violation of the equal protection of laws as anybody, whose property is taken, will be awarded compensation according to the procedure set out in Section 18, Defence of Hyderabad Regulation.

The learned Advocate for the Applicants tried to make out that by reason of the requisitioning of these buildings one of the fundamental rights guaranteed to him under the Constitution was infringed. He relied upon Article 19(e), Constitution of India. It was contended that the right of the Applicants to reside and settle in Khammaneth was being violated. This argument does not appeal to me. In every case where property is acquired or requisitioned the owner thereof is certainly deprived of the right of ownership or enjoyment thereof as the case may be. But the Constitution has allowed and permitted the imposition of reasonable restrictions in the exercise of these rights of a citizen. The Article of the Constitution which would be applicable to this case would be Article 31 which directly relates to the right of persons to property, and according to Article 31(2) where property is acquired for public purposes under the law, and where compensation is paid, it cannot amount to a deprivation of a right to property constituting an infringement of a fundamental right.

One last argument was advanced namely that this was against the spirit which pervaded; the Constitution. We are not concerned here with the spirit of the Constitution but what we are concerned with is whether the order is against any express provision of the Constitution and so long as it is not against any express provision of the Constitution it does not matter whether it offends any spirit of the Constitution.

I am supported in this view by the weighty pronouncement of the Chief Justice of India in the case of A.K. Gopalan Vs. The State of Madras, (Para 26) (J):

Courts are not at liberty to declare an Act void because in their opinion it is opposed to the spirit supposed to pervade the Constitution taut not expressed in words.

There has been no ''mala fides'' on the part of the Civil Administrator established in this case. Only a feeble argument was advanced that there were other houses. This has been met by the explanation given by the Civil Administrator in his counter (Para 4). I have no reason to doubt the statements made therein.

I must say that the case was ably argued by the respective Advocates bringing to our notice all the aspects of law arising in the case.

I am, therefore, of opinion that there has-been no abuse of the power vested in the Civil Administrator of Warangal. The delegation of the power to the Civil Administrator imposed no restriction on his powers to requisition a house for a public purpose. No case has been made out for the issue of a writ of certiorari and these applications will therefore be dismissed with costs. Advocate''s fee Rs. 100/- in each case. This order will govern all the three applications of: (1) Nagela Sitaramia, (2) Toram Chandria and (3) Venkat Reddy.

S.Q. Hasan, J.

I agree.