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Civil Reference No. 145 of 1955, by Muhammad Bachal, J. under section 12, Sind Courts Act decided on 2nd Novem ber 1955.
(a) Government of India Act, 1935, (26 Geo. Vc. 2), S. 299, Schd. VII, List 11, Item 9-Term 'compulsory acquisition' Whether embraces the word 'requisition' of immovable property Land-Meaning of-Acquisition of land in item 9 together with item 21 in List 11 of Schd. III covers 'requisition of land Rights 'in and over land-Definition of.
It was urged on behalf of the plaintiffs in the present case that there was a lacuna in the Constitution Act in as much as 'requisitioning' was not mentioned as a subject of legisla tion in any one of the three lists of the Seventh Schedule of the Constitution Act and that 'compulsory acquisition of land' in item 9 of List II does not embrace requisition. Con sequently the Act and Ordinance were without authority because in the absence of any notification by the Governor -General under section 104 of the Constitution Act, the Federal or the Provincial Legislature was not authorised to enact laws with respect to requisition. Moreover, the definition of 'public purpose' in the Ordinance and the Act includes purposes beyond the competence of the Provincial Legis lature and as such the enactments were ultra vices. And lastly the Ordinance and the Act fail to provide for the compensation to the tenant ousted from the requisitioned premises. This contravened section 299 of the Constitution Act.
Held, in accordance with the well recognised cannon of interpretation that constitutional provisions should be given the widest possible construction and the subject-matter of legislation should be held to extend to all ancillary and subsidiary matter, the word 'acquisition' has a wide concept meaning procuring or taking property permanently or tem porarily and it does not necessarily imply the 'acquisition' of legal title by the State in the property taken possession of. The word 'acquisition' in item 9 of List II of Schedule VII of the Constitution Act, therefore, includes 'requisition.'
A narrow concept of the term 'acquisition' occurring in item 9, List II, would introduce a technicality, unnecessarily curtailing the meaning of the expression with the result that a law enacted to deal with requisitioning would be valid even if it did not make provision for payment of any compensa tion.
The word 'land' by virtue of subsection (5) of section 299 of the Constitution Act includes immovable property of every kind and the right in and over such property.
Rights in land includes general rights of full ownership, leasehold and the like and rights over land includes easements and other collateral rights. The words 'acquisition of land' in item 9 of List II, cover requisition of land.
Minister of State for the Army v. Dalziel 68 Common wealth L R 261, Dwarkadas v. Sholapur Spinning and Weaving Co.; A I R 1954, S C 119; Shyam Krishen v. The State of Punjab and others A I R 1952, E P 70 relied upon.
Megraj v. Allahrakhea P L D 1947 P C 25 In re. C. P. Motor Spirit Act, A I R 1939 F C 1, referred to.
Tan Bug Taim and others v. The Collector of Bombay, A I R 1946 Bom. 216, dissented from.
(b) Sind (Requisition of Land) Ordinance (111 of 1947) and Sind (Requisition of Land) Act (XLVI of 1947)-Validity--- Requisition of tenancy rights-Competency of the Provincial Legislature to enact laws for the purpose-Public purpose Whether includes purposes which do not bear on the affairs of Provincial Government-Compensation-Exclusion of provision for it in enactments-Contravenes S. 299, Government of India Act, 1935.
A purpose which has reference to the Central Govern ment, would as much be a public purpose as one which bears on the affairs of the Provincial Government. The purpose of any Provincial Legislation may well comprehend a public purpose not necessarily confined to the interests of a Province. Rights in land includes tenancy rights. Requisition does not extinguish the tenancy rights vested in the tenant nor operate as a surrender so as to terminate a tenancy. An enactment is order to be valid must provide for compensation to tenants whose premises may be requisitioned and since the Sind (Requisition of Land) Act excludes such a provision, the Act is ultra vires of the Provincial Legislature.
Meghraj v. Allahrakhia, P L D 1947 P C 25, Manohar Ramkrishna v. G. G. Desai, A I R 1951, Nag. 33 relied upon.
Tarabai Jiwanlal v. Patamchand A I R 1950 Bom. 89, referred to.
Sharif-ud-Din, Shah Jamal Alam Khalid, M. Ishaq, Moin ullah and Fazal Ali for Plaintiffs.
E. V. Castellino and S. Nasir-ud-Din for Defendant
RAHMAN, C. J.----Before Muhammad Bachal, J., sitting on the Original Side, the contention was raised in several suits that the Sind Requisition of Land Ordinance III of 1947 and the Sind Requisition of Land Act XLVI of 1947 which superseded the Ordinance were ultra vires of the Provincial Legislature. The precise objections to the validity of the Ordinance and the Act do not appear to have been formulated by the learned Counsel in these suits but the vires of the enactments were attacked in general terms. The learned Judge has made a reference to a Division Bench of the follow ing question :-
"Whether (i) Sind (Requisition of Land) Ordinance III of 1947 and (ii) Sind (Requisition of Land) Act XLVI of 1947 are ultra sires."
We asked the learned Counsel in the various suits to eluci date their objections, and they may be categorized as follows
(1) It was urged that there was a lacuna in the Constitution Act inasmuch as "requisitioning" was not mentioned as a subject of legislation in any one of the three lists of the Seventh Schedule to the Constitution Act. In particular, it was contended that item 9 of list II namely, "compulsory acquisi tion of land" does not embrace "requisition." The corollary was, therefore, drawn by the learned Counsel that unless a notification were to be issued by the Governor-General under section 104 of the Constitution Act authorizing the Federal Legislature or the Provincial Legislature to enact a law with respect to requisitioning, no such legislation could be passed. The Governor-General had not issued any such notification and, therefore, the Ordinance and the Act were attacked as bad.
(2) The second objection taken was that the definition of 'public purpose' in the Ordinance and the Act, included purposes which were beyond the competence of the Provincial Legislature to legislate on and consequently the provisions of the two enactments were ultra vires of the legislature to that extent.
'Public purpose' is defined in the Ordinance and the Act as inter alia any purpose connected with the shortage of accommodation due to the holding of the Constituent Assembly and to the establishment of the Government of Pakistan. The argument is raised that the Provincial legislature has nothing to do with the provision of accom modation in connection with the holding of the Constituent Assembly or for the establishment of the Government of Pakistan.
(3) The third ground of challenge is founded on the alleged omission in the Ordinance and the Act of any provision for paying compensation to tenants who may be ousted from requisitioned premises. This according to the learned Counsel, amounted to a contravention of section 299 of the Constitution Act.
(4) The compensation provisions of the Ordinance and the Act were also assailed on the plea that they did not provide for the payment of adequate compensation. The provisions of subsection 4 (A) of section 299 of the Constitu tion Act could not be, it is contended, be pressed into service by the Crown, as the assent of the Governor-General had not been obtained for the impugned enactments. I will consider these objection seriatim.
Objection No. 1.-It may at the outset be noted that the provisions of the Ordinance and the Act are almost identical and, therefore, arguments raised in respect of one would generally cover the other. The two enactments contained also provisions concerning acquisition, but they are not challenged. The attack is directed against, the provisions bearing on requisition. The main argument, as has been observed above, is that "requisition" is not specifically men tioned in any one of the three legislative lists given, in the Seventh Schedule to the Constitution Act and that compulsory acquisition of land which is entered as item No. 9 in list II of the Schedule does not comprehend "requisition" within its scope. Reliance is placed in the main by the learned Counsel in this connection on a single bench judgment of the Bombay High Court reported as Tan Bug Taim and others v.2 "he Collector of Bombay (A I R 1946 Bom. 216). In that case Bhagwati, J., held that the enactment of section 2 (2) (XXIV) of the Defence of India Act, 1939 and Rule 75 (a) of the Defence of India Rules, with reference to the requisition of immovable property, in the absence of a public notification by the Governor-General under section 104 of the Government of India Act, was ultra vires of the Central Legislature Despite the fact that a proclamation of emergency had been made by a notification under section 102 of the Constitution Act. The learned Judge thought that section 299 of the Constitution Act was meant to recognize fundamental principles of British juris prudence and they were not intended to be mere restrictions on the legislative powers of the Indian legislature. He was also of the view that the expression "rights in or over land" occur ring in subsection (5) of section 299 of the Constitution Act and in item 21 of list II of Schedule VII connote property rights in the nature of rights, title or interest therein, and not the right of temporary user and possession of the same. The words following 'land' in item 21 of list II were in the learned judge's opinion restrictive and not merely illustrative of the meaning of the word 'land.' It was, therefore, laid down by the learned judge that requisition could not be included in items 9 and 21 of list Il as it was not an ancillary or subsidiary matter to the subject 'land' nor was it comprehended by the term acquisition or covered by the expression "rights in or over land."
In certain subsequent cases, some of the High Courts in India referred with approval to Bhagwati J's opinion. Reference in this connection may be made to A I R 1953 Assam 177. Certain other authorities were cited by the learned Counsel, which merely support the plea that acquisi tion is distinguishable from requisition on the ground that the former implies a transfer of ownership rights, whereas the latter merely vests the right of use or temporary possession in the requisitioning authority. I need not discuss those rulings because they, in my opinion, afford little assistance in deter mining the issue that arises here. It appears that after Bhagwati, J's judgment was delivered, a notification was issued under section 104 of the Government of India Act, 1935, by the Governor-General, empowering all Provincial legislatures to enact laws in respect to the requisitioning of land so that the question of legislative competence was put out of the pale of controversy. In the Assam case cited above, this notifica tion was referred to as giving statutory recognition to the view of Bhagwati, J.
With all respect, it seems to me that the inference does not necessarily follow. The Governor-General might have met the situation that was created by Bhagwati, J's judgment by issue of a notification under section 104 of the Constitution Act so as to avoid a long controversy in Courts. The implica tion need not be read into this act of the Governor-General that the view taken by Bhagwati, J., was regarded as sound. Bhagwati, J., in the Bombay case had fortified his arguments by reference to the opinion of Latham. C. J., of the High Court of Australia in Minister of State for the Army v. Dalziel (68 Commonwealth L R 261). The question that fell for consideration in that case was whether the taking under Regulation 54 of the National Security (General) Regulations, by the Commonwealth, for an indefinite period, of the exclusive possession of property, constituted an acquisition of property within the meaning of section 51 Placitum XXXI of the Constitution of Australia, and whether Regulation 60-H of the National Security General Regulations framed under the National Security Act 1939-1943, did not provide just terms within the meaning of section 51 (XXXI) of the Constitution in respect of such taking over of possession. The Supreme Court of New South Wales had held that taking possession of land in pursuance of Regulation 54, amounted to acquisition of property within the meaning of section 51 (XXXI) of the Constitution. On appeal to the High Court, Latham,'C. J. expressed the view that the Commonwealth could not be held to have acquired land, unless it had become the owner of the land or of some interest in the land, and so long as the Commonwealth became only a possessor and not an owner of land, it may have rights in respect of the land which may be described as property, but it could not be said to have acquired property. The learned judge opined that though the right to possession is a most valuable attribute to ownership, and possession is prima facie evidence of title and may in certain cases develop into ownership, the identification of possession with ownership would not be justifiable. The majority of the Australian High Court, however, held to the contrary, and found that taking under Regulation 54 of the National Security General Regula tions by the Commonwealth for an indefinite period of the exclusive possession of the property constituted au acquisition of the property within the meaning of section 51 (XXXI) of the Australian Constitution. Bhagwati, J., preferred the opinion of Latham, C. J., to that of the majority of the judges in the Australian High Court. On the contrary, Mahajan, J of the Supreme Court of India in Dwarkadas v. Sholapur Spinning and Weaving Co. (A I R 1954 S C 119), found himself in agreement with the opinion of the majority in the Australian case. In this connection Mahajan, J., referred to the opinion of Rich, J., of Australia couched in the following words with approval "It would in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorising the acqui sition of a citizen's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses, or upon no terms at all. In the case now before us, the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having, and has left him with the empty husk of tenancy. In such circum stances, he may well say :-
'You take my house, when you do take the prop. That doth sustain my house; you take my life, when you do take the means whereby I live".
Mahajan, J., went on to observe that he was unable to accept the narrow rule that acquisition necessarily meant acquisition of title in whole or part of the property. He pointed out that the word 'acquisition' had a wide concept meaning the procuring of property or the taking of it per manently or temporarily, and it did not necessarily imply the acquisition of legal title by the State in the property taken possession of. The learned judge differed from the view taken by Das, J., of the Supreme Court of India, as regards, the meaning of the word 'acquisition' as implying the vesting of property in the State which he had expressed in Chiranjit Lal v. The Union o f India (A I R 1951 S C 41).
A Division Bench of the Punjab (India) High Court con sisting of Falshaw, J., and Weston, C. J., in Shyam Krishen v. The State of Punjab and others (A I R 1952 Pb. 70), dissented from Bhagwati J's opinion in A. I. R. 1946 Bom. 216. The learned judges agreed with the majority view of the Australian High Court in contrast with the opinion of Latham, C. J. The learned Judges in that case were considering the validity of the Punjab Requisitioning of Immovable Property (Temporary Powers Act XVII of 1947) and the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act XLII of 1948), and the argument raised before them was similar to the one ad vanced in the present case. The Acts in question were held to be intra vires of the legislature in so far as they provided for the requisitioning of property.
Now it is a well recognised cannon of interpretation that constitutional provisions should be given the widest possible construction according to the ordinary meaning of the words, and the subject-matter of legislation should be held to extend to all ancillary and subsidiary matters. A narrow or restricted interpretation would be inept in such cases. If any authority is needed for this view, reference may be made to Meghraj v, Allahrakhia (A I R1947 PC72: P L D 1947 PC 25), in re. C. P. Motor Spirit Act (A I R 1039 F C I) and in re. Ref. under section 213 of the Government of India Act (A I R 1944 F C 73).
In my humble judgment there is no difficulty in con struing the word 'acquisition' occurring in item 9 of list II of Schedule VII to the Constitution Act, as including "requisition." In the context of immovable property, acquisi tion may be accepted as transferrence of the ownership rights to the acquiring authority, as contrasteo with requisi tion which would vest a temporary right oil use of the pro perty in that authority. The right of possession is but part of the full right of ownership. Omne majus continct in se minus the greater contains the less, is a well known maxim of the law. The argument that by virtue of the term 'acquisition' occurring in item 9 of list II the legislature could authorise an officer to take away the whole of a man's property or nothing at all amounts to introducing a technicality which unnecessarily curtails the meaning of the expression. If the view pressed for is adopted, and it is assumed that section 299 of the Constitution Act does not cover the case of acquisition of tenancy rights, the result would be that a law enacted to deal with the requisitioning of such rights would be valid f even if it did not make provision for payment of any com pensation. This would be cutting down the beneficial const ruction of section 299 of the Constitution Act and would adversely affect the interest of the subject. Such a procedure is not in consonance with the principle of construction of Constitutional statutes and should, therefore, be avoided, if by a fair construction the subject of requisitioning can be brought within the purview of the section. Section 229 of the Constitution Act places a fetter on the power of the Federal and Provincial Legislature in respect of making laws authorising the compulsory acquisition of any land for a public purpose, inasmuch as it insists that to give validity to such law it must provide for giving compensation for the property, acquired. The word 'land'. by virtue of subsection (5) of that section includes immovable property of every kind and the rights in and over such property. The expression right in or over land' fell to be construed in connection with item 21 of list II of Schedule VII in Meghraj v. Allahrakhia (1). The Judicial Committee held that rights in land in this context, must include general rights like full ownership or leasehold or all such rights and rights over land would include ease ments or other collateral rights. This dictum of their Lord ships of the Privy Council runs contrary to the opinion of Bhagwati, J., in Tan Bug Taim v. The Collector of Bombay. In the Privy Council case the Punjab Restitution of Mortgaged Lands Act IV of 1938 was held to be intra vires of the Punjab Legislature on the ground that mortgages of land which were the subject dealt with by the Act, were included in the expres sion 'land' occurring in item 21 of list II mortgages of land as such are not mentioned specifically in any of the three legis lative lists.
After careful consideration of all the authorities and the provisions of the Constitution Act, I have reached the con clusion that the words 'acquisition of land' in item 9 of list II read if necessary with item 21 of the list, should be held to cover requisition of land as defined in subsection (5) of section 299 of the Constitution Act. In my humble judgment, therefore, the requisition of tenancy right or of ownerhip of property provided for is the impugned Ordinance and Act was a subject on which the Provincial legislature could enact laws. I find that in Suit No. 500 of 1951 disposed of by Muhammad Bux, J., on 29th June 1955, sitting on the original side of this Court, the wi4,er interpretation of acquisition has been adopted, and the expression has been held to include requisition. In view of the above discussion I am convinced that this view is sound. The argument that lacuna exists in the Constitution Act should not be acceded to unless there is no escape from it.
The second objection that the definition of 'public pur pose' in the impugned enactments invalidated them because it included certain purposes connected with the Central Govern ment or the Constituent Assembly is also in my opinion devoid of force. It will be enough to refer in this connection to the provisions of section 127 of the Constitution Act which empowers the Federation if it deems it necessary to acquire any land situated in a Province connected with a matter in respect to which the Federal legislature has power to make laws, to require the Province to acquire the land on behalf of and at the expense of the Federation. A purpose, therefore, which has reference to the Central Government, would as much be a public purpose as one which bears on the affairs of the Provincial Government in the context of acquisition of property under a Provincial law. The argument raised really confuses purpose with the subject-matter of legislation. The Province is no doubt confined to subjects mentioned in list II or in the concurrent list III under certain conditions when passing legislation, but the purpose of any legislation may well comprehend a public purpose not necessarily confined to the interest of a Province.
The learned Counsel, however, seem to be on stronger ground when they allege that the Act and the Ordinance are bad in so far as they fail to make provision for compensation to a tenant who may be ousted from requisitioned premises. As has been discussed above, it is clear that tenancy rights would be covered by the expression "rights in land" and therefore, any legislation for the acquisition or requisition of tenancy rights would come within the mischief of section 299 of the Constitution Act.
Mr. Nasiruddin on behalf of the Provincial Government contended that the two enactments in question did not exclude payment of compensation to tenants, and in the alternative that it was not necessary to make such provision because section 299 of the Constitution Act according to him, did not 'cover the case of tenants. With the latter part of his con tention it is not possible to agree. I have given reasons for the view that the expression "rights" in land, includes tenancy rights. It was so held in Meghraj v. Allahrakhia by the. Judicial Committee of the Privy Council. The Punjab (India) High Court in Shyam Krishen v. The State of Punjab has recognised the necessity of making such a provision for the benefit of tenants when their premises are requisitioned under any exproprietory enactments. This view also found favour with a Division Bench of the Nagpur High Court in Manohar Ramkrishna v. G. G. Desai (A I R 1951 Nag. 33) while considering the validity of the C. P. and Berar (Requisition) Act 1948, With this view, I find myself in respectful agreement. The question for determination then is whether the Ordinance and the Act contains provision regarding compensation to tenants or not.
Taking up consideration of the Ordinance first I find that section 4 deals with the payment of compensation for requisition or acquisition of immovable property. It prescribes that there shall be paid compensation in cases of requisition or acquisition under the Ordinance either in accordance with an agreement between the parties as to the amount of compensation payable, or in the absence of such an agreement in accordance with the award of an arbitrator to be appointed by the Provincial Government. The section does not mention to whom the compensation is to be paid but a direction is included in clause (c) of subsection (1) of section 4 to the effect that the arbitrator in making an award shall have regard to the provisions of subsection (1) of section 23 of the Land Acquisition Act, 1894 so far as they can be made applicable. There is further provision in this very section empowering the Provincial Government to make rules for the purpose of carrying into effect the provisions of the section. The rules may inter alia lay down the principles to be followed in apportioning the costs of the proceedings before the arbitrator and on appeal and the maximum amount of the award. Nothing is said in these provisions from which the exclusion of tenants from compensation may be spelt out.
The position however appears to be different when we come to the Act. Section 4 of the Act lays down that where any immovable property is requisitioned or acquired under the provisions of the Act there shall be paid a com pensation, the amount of which shall be determined in the manner and in accordance with the principle set out in that section. The provisions that follow are in terms similar to those of the Ordinance.
By Sind Act X of 1948, however, section 3 (A) was inserted in this Act which reads as follows :-
"3-A. (1) Where any immovable property is requisitioned under the provisions of this Act, there shall be paid compensa tion which shall consist of a fair rent of the property determined by the Controller in accordance with the provisions of the Sind Rent Restriction Act, 1947.
(2) A person aggrieved by an order of the Controller made under subsection (1) may within 15 days of the order appeal-
(a) in the City of Karachi to the Chief Judge, Small Causes Court.
(b) elsewhere to the District judge having jurisdiction in the area where the property is situated."
By this very amending Act the words "Requisitioned or" were directed to be omitted wherever they occurred in section (4) of the Act. The new section 3 (A) clearly and obviously implies that "fair rent" is to be the total compensation payable for requisitioned premises. This "fair rent" would be payable to the landlord and to nobody else. The Rent Controller who appeared before us admitted that this would be the case though he suggested that if a tenant who had been dispossessed applied to him for compensation he might deter mine what compensation he should get on general principles of natural justice. Obviously no share of the landlord's "fair" rent could be apportioned to the tenant as it would be an encroachment on the rights of the landlord and this was conceded by the Rent Controller. There is no escape from the conclusion consequently in the face of section 3 (A) of the Act that in the case of requisition of immovable property the whole of the compensation would go to the landlord and nothing would be left for the tenant. To the extent, therefore, that the Act makes no provision for com pensating tenants in accordance with the provisions of section 299 of the Constitution Act, the Act is in my opinion ultra vires.
A feeble contention was also advanced that the compen sation provided for the landlord in the Act by way of fair rent was not adequate, The "fair rent" according to section 3 (A) is to be determined by a Controller functioning under the Sind Rent Restriction Act 1947. Incidentally it was not con tended that the said Act having already lapsed there would be no machinery available for assessing such fair rent. The argument is based on a misapprehension of the legal position. Even though the Sind Rent Restriction Act, 1947, may have ceased to be law for the purposes of the present Act its relevant provisions would be deemed to be alive and there would be no difficulty for a Rent Controller to assess the fair rent in accordance with the provisions of the defunct Act. However, it is stated that the Sind Rent Restriction Act which has now replaced the 1947 Act would be more beneficial to the landlords if the fair rent is determined under its provisions rather than those of the 1947 Act. Ideas of fair rent may change from time to time but it cannot be maintained with any degree of plausibility that at the time of the enactment of the impugned Act, the legislature had not provided for adequate compensation to the landlord. It had expressly enacted that fair rent shall be payable, presumably to the landlord.
Mr. Nasiruddin has tried to -argue that as soon as a property was acquired or requisitioned, the tenancy rights would be automatically extinguished, and as those rights had no exchangeable value, by virtue of the restrictions imposed by the Rent Restriction Act tenancy rights could not be described as property, at all requiring payment of compensa tion. The position adopted by him appears to me to be unsound. Requisition or acquisition of property belonging to a landlord occupied by a tenant does not automatically put an end to the tenancy rights as between the landlord and the tenant. I am supported in this view by a decision of the Bombay High Court reported as Tarabai Jiwanlal v: Patam chand (A I R 1950 Bom. 89). The learned Judge who decided that case held that requisition does not extinguish the tenancy' rights vested in the tenant, and it also does not operate as a surrender so as to terminate a- tenancy. Consequently monthly tenant from whose occupation a flat is requisi tioned continues to be the monthly tenant of the flat as before.
The result is that the Ordinance does not seem to be open to any exception but that the Act is ultra vires of the Provincial legislature in so far as it fails to provide for compensation to tenants whose premises may be acquired or requisitioned.
I would answer the reference in the above terms.
K. B. A. Reference answered.
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