TMI Blog1945 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... aters for a large clienteae including members of the fighting forces of the Allied Nations. It has a large establishment and is one of the leading Chinese restaurants in Bombay. 2. It appears that the entire land and the building thereon known as the Dhanraj Mahal was requisitioned by the Collector of Bombay by his order dated April 7, 1942, and except the ground floor the upper floors have been since then in the actual occupation of the officers of the Royal Indian Navy and the members of their families. When such requisition was made the Government entered into the possession of the upper floors of Dhanraj Mahal and continued to manage the same through one Homiyar Dhanjishaw Broacha whose services were transferred by the owner of the Dhanraj Mahal to the Government. The shops on the ground floor appear, however, to have remained in the possession of the owner and he employed his own manager to look after the said shops who prepared the bills and recovered the rents from the tenants of the shops on the ground floor. 3. On or about May 31, 1944, a month's notice was served on the proprietor of the Kokwah Chinese Restaurant requiring the proprietor to vacate the premises a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing date February 16, 1945. It was marked Very Urgent , intimating to them that in the exercise of the powers conferred by Sub-rule (2) of Rule 75-A of the Defence of India Rules, read with notification of the Government of India, Defence Co-ordination Department, No. 1336/OR/1/42, dated April 25, 1942, the respondent requisitioned the said property and directed possession thereof to be delivered to the Commander 167 1 of C sub-area forthwith, subject to certain conditions therein mentioned. On the second page of the said order were printed instructions to the owner and tenant, viz. the proprietors of the Kokwah Chinese Restaurant, that in the event of failure on their part to hand over possession of the requisitioned property on this date, steps to enforce compliance with the above order would be taken through the police without further warning to them, that the police had instructions to use such force as may in their opinion be reasonably necessary for securing compliance with the said order, vide Rule 132 of the Defence of India Rules, and that non-compliance with the order was moreover an offence punishable with imprisonment which may extend to three years or with fine or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81 of the Defence of India Rules, and that therefore the order of the respondent being without jurisdiction, power or authority was illegal, ultra vires, invalid and inoperative in law. The petitioners also contended in paragraphs 7 and 8 of their petition that by reason of the various allegations made in paragraph 7, the order had been issued by the respondent not for the bona fide purpose mentioned in the order, viz. efficient prosecution of the War, but for the purpose of stifling and limiting the business of Chinese Restaurant-keepers in the Fort area and that the order had not thus been made bona fide for the purpose for which it purported to have been made, but was passed for a collateral purpose, and that therefore the same was illegal, void and inoperative in law. The petitioners lastly contended in paragraph 9 of the petition, without prejudice to all their other contentions, that the order was passed requiring the petitioners to hand over possession forthwith and no reasonable or proper time was granted to them for the purpose of delivering the premises under the order, that the respondent was bound to act in such a manner as to interfere with the ordinary avocations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion the Chinese Consul whose assistance was sought by the petitioners spoke on 'phone to the Chief Secretary to the Government of Bombay who, however, expressed his inability to do anything in the matter. It was submitted that the requisition order was void, inoperative, illegal and ultra vires and should be set aside. 7. The rule came on for argument before me on March 24, 1945, when Mr. Jhaveri appeared for the petitioners and Mr. G.N. Joshi appeared for the respondent. At that hearing Mr. Jhaveri applied for an adjournment for hearing upon testimony of witnesses to be examined in like manner as in a suit under Rule 582 of the High Court Rules. He said that he wanted to prove (a) that two Chinese restaurant-keepers were served with such notices and their premises were requisitioned and that the petitioners' was the third Chinese restaurant requisitioned by the respondent, and (b) that the respondent served notices on only Chinese restaurant keepers and not on others belonging to any other nationality with a view to discriminate against the Chinese restaurant keepers. There being a dispute as to the facts between the petitioners and the respondent, I adjourned the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the hearing Mr. Taraporewalla stated that he had considered the position and had come to the conclusion that neither the Government of Bombay nor the Central Government were necessary parties to the petition and his client did not want to serve the rule on them. In view of the above statement of Mr. Taraporewalla I also did not think it necessary to direct that the rule should be served on the Central Government and put the petitioners to the risk of having had to pay their costs in the event of the petition being dismissed. 9. The Advocate General for the respondent continued the arguments on the preliminary issue as to whether the petition lies under Section 45 of the Specific Relief Act. He adopted all the arguments which had been advanced on the previous occasion by Sir Jamshedji Kanga and made a further submission that the petitioners were not entitled to maintain this petition under Section 45 based on the alternative submission like the one which the petitioners had made in paragraph 6 of the petition, and that if the petitioners wanted to urge their main contention which they had set out in paragraph 5 of the petition, viz. that the enactment of Section 2(2)(xxiv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restaurants. 12. As regards the first question, whether there was a goodwill attaching to the Kokwah Chinese Restaurant, the first petitioner gave evidence himself and also called Chen Hin Hong who is the manager of the Chinese Museum situate at Apollo Bunder in the building next door to the Dhanraj Mahal. The first petitioner stated that he had purchased this restaurant from the previous owner thereof in March, 1944, for a consideration of ₹ 42,000. He produced a document executed by the previous owner in his favour on March 23, 1944. He also deposed to the fact that his restaurant commanded a very good clientele, had a central situation and was situated in the building the upper floors of which were occupied by Naval employees and was very popular. The Advocate General tried in his cross-examination of the first petitioner to show that this restaurant had a majority of its clients from the military personnel, that it was only after the present war that there was a brisk demand for restaurants and in particular those serving Chinese food, that there was besides the business of the restaurant which was taken over by the petitioners from the previous owners thereof a busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that behalf. In answers to the Court this witness definitely stated that people did not visit the restaurant because it was named the Kokwah Chinese Restaurant, it was not the name that attracted the customers but it was the good food that was served there. It had a good situation with the Yacht Club on the one side, and with the Green's Hotel on the opposite side. There were the naval officers' quarters in the building itself, which enjoyed the central position having regard to all the circumstances named by him, in effect suggesting that the restaurant commanded a goodwill. 13. On behalf of the respondent one Homiyar Dhanjishaw Broacha was examined as a witness. He was the manager of the building up to May, 1942, when the upper floors of the same were requisitioned by the Government. He stated that the name Kokwah Chinese Restaurant had been adopted by the owners of the restaurant only in the beginning of 1944 the same having been run in other names prior thereto. He further stated that the business of a restaurant had been carried on in the whole of the premises only after May, 1942, the business carried on prior to that date having been that of a restaurant as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a sum of ₹ 42,000 and a substantial portion of that sum of ₹ 42,000 was paid for the goodwill of that restaurant. As to what exact sum out of the ₹ 42,000 represented the goodwill of the restaurant, it will be for whoever is concerned in the future with the determination of the value of the goodwill to consider. Suffice it to say that there was a goodwill attached to the Kokwah Chinese Restaurant and the premises occupied thereby, that the value of it was a part of the consideration of ₹ 42,000 paid by the petitioners to the previous owners thereof and that the goodwill which is attached to the premises is a distinct and valuable asset and property of the. petitioners. 16. I have also come to the conclusion that the petitioners have failed to establish that the respondent was guilty of any discrimination against the owners of Chinese restaurants and that the requisition order dated February 12, 1945, cannot be challenged at all on that ground. 17. There thus remain to be disposed of by me three substantial points of law which have been the subject-matter of great contest between the parties: (1) whether the enactment of Section 2(2)(xxiv) of the Defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Federal Legislature may make laws for the whole or any part of British India or for any Federated State, and a Provincial Legislature may make laws for the Province or for any part thereof. 21. Section 100(1) enacts that notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the 7th schedule to the Act (hereinafter called the Federal Legislative List ). 22. Section 100(2) enacts that notwithstanding anything in the next succeeding subsection, the Federal Legislature, and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the schedule (hereinafter called the Concurrent Legislative List ). 23. Section 100(5) enacts that subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the schedule (hereinafter called the Provincial Legislative List ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist. These are the relevant provisions of the Government of India Act which require to be considered in this connection. 30. It may not be out of place also to set out the relevant provisions of the Defence of India Act (XXXV of 1939) and the Defence of India Rules made thereunder. The preamble to the Defence of India Act says: 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 British India and for the trial of certain offences: And whereas the Governor General in his discretion has declared by Proclamation under Sub-section (1) of Section 102 of the Government of India Act, 1935, that a grave emergency exists whereby the security of India is threatened by war; It is hereby enacted as follows: Section 2 of the Defence of India Act provides: (1) The Central Government may, by notification in the? official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property, moveable or immovable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning: Provided that no property used for the purpose of religious worship and no such property as is referred to in Rule 68 or in Rule 72 shall be requisitioned under this rule. (2) When the Central Government or the Provincial Government has requisitioned any property under Sub-rule (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the official Gazette, a notice stating that the Central or Provincial Government as the case may be, has decided to acquire it in pursuance of this rule. (3) Where a notice of acquisition is served on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears or with fine or with both. 33. It was urged by Mr. Taraporewalla for the petitioners that the requisition of property which is the subject-matter of Section 2(2)(xxiv) of the Defence of India Act, which is defined in Rule 2(11) of the Defence of India Rules and provided for in Rule 75A of the Defence of India Rules is a category of legislation by itself, is not included in any of the items in the three lists of the seventh schedule to the Government of India Act and being, therefore, not within the competence of the Federal or the Provincial Legislatures would fall within the residual powers of legislation vested in the Governor General under Section 104 of the Government of India Act. It is common ground that the Governor General did not issue any public notification empowering the Federal Legislature (which by virtue of Section 316 of the Government of India Act is to all intents and purposes the Central Legislature exercising those powers which are given to the Federal Legislature under Section 100 of the Government of India Act) to enact a law with respect to this matter of requisition of property, and it was therefore urged that even though the Central. Legislature pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d give a large and liberal interpretation to the provisions of that Act. He relied upon the principles of construction which have been laid down in this behalf in various cases beginning with British Coal Corporation v. The King [1935] A.C. 500, in which it was observed (p. 518): Indeed, in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Henrietta Muir Edwards v. Attorney-General for Cananda [1930] A.C. 124. Their Lordships do not conceive it to be the duty of this Board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs'. 'The Privy Council, indeed) has laid down that Courts of law must treat the provisions of the British North America Act by the same methods of construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r C.J. observed that: The Judicial Committee have observed that a Constitution is not to be construed in any narrow and pedantic sense: per Lord Wright in fames v. Commonwealth of Australia [1936] A.C.578 The rules which apply to the interpretation of other statutes apply, it is true, equally to the interpretation of a constitutional enactment. But their application is of necessity conditioned by the subject-matter of the enactment itself; and I respectfully adopt the words of a learned Australian Judge: Although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting,-to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere act which declares what the law is to be:' (1908) 6 Commonwealth L.R. 469, per Higgins J. at p. 611. Especially is this true of a federal constitution, with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the powers conferred on it. Its enactments ought not to be subjected to the minute scrutiny which may be appropriate to an examination of the by-laws of a body exercising only delegated powers, nor is the generality of its power to legislate on a particular subject to be cut down by the arbitrary introduction of far-fetched and impertinent limitations. 37. The Advocate General further pointed out that the scope of the powers granted by the Government of India Act, 1935, to the Indian Legislature, even though they were plenary within their own spheres, was to be found in the three Legislative Lists of the seventh schedule to the Act. As to the nature of those Lists he relied upon the observations contained in an extract from the White Paper where Sir Samuel Hoare is reported to have stated as follows: But the only bridge that we could find between these two diametrically opposite points of view was to have three lists, namely, the Federal List, the: Provincial List and the Concurrent List, each as exhaustive as we could make it, so exhaustive as to have little or nothing for the residuary field. I believe that we have succeeded in that attempt and that all that is likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously means that looking at the legislation as a whole, it must substantially be with respect to matters in one list or the other. A remote connexion is not enough. He further relied upon the observations of Gwyer C.J. in Bhola Prasad v. Emperor A.I.R [1942] .F.C. 17 (p. 19, col. 2): The words explain or illustrate and do not amplify or limit the words immediately preceding them and cover the whole field of possible legislation on the subject. To the same effect were the observations of their Lordships of the Privy Council which were relied upon by him in the case of Governor-General in Council v. Province of Madras [1945] 8 F.L.J. 69, where Lord Simonds who delivered the judgment of the Board observed (p. 72): The Indian Constitution is unlike any that have been called to their Lordships' notice in that it contains what purports to be an exhaustive enumeration and division of Legislative powers between the Federal and Provincial Legislatures. On the basis of these authorities he urged that the Lists of the seventh schedule to the Government of India Act were exhaustive and should be read as comprising each and every legislative power which could possibly be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though the Government of India Act was a Constitution Act and a large and liberal interpretation should be given to the terms thereof, that canon of construction did not abrogate the other canon of construction which was equally well-known and which has been enunciated by Maxwell on the Interpretation of Statutes, 8th edn., at p. 248: The tendency of modem decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the Legislature, than formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful inferences. The effect of the rule of strict construction might almost be summed up in the remark that, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any subject whatever and in any manner whatever, so as to deprive a subject of the liberty of person as well as his rights of property. He, however, submitted that there was in this respect a distinction between the powers of the Imperial Parliament and those of the Indian Legislature that whereas there were no limitations to the legislative powers of the Imperial Parliament, the powers of the Indian Legislature were circumscribed within the lists of the seventh schedule to the Government of India Act, and that even though the powers conferred on the Indian Legislatures within their own spheres were plenary, the same were also circumscribed by the salutary provisions contained inter alia in Section 299(1) and (2) of the Government of India Act hereinbefore referred to. He also contended that at no time had such a claim to confiscate the property of the subject been ever put forward before, either by the Indian Legislature or by the Government of India and it was only as an act of State that the Government could deprive or confiscate the property of the subject; if it did not amount to an act of State, it was open to the subject to challenge the whole action of the Government wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stification for including the requisition of land in item No. 9 in list II of the seventh schedule to the Government of India Act or item No. 21 in the list, as requisitioning was not an ancillary or subsidiary matter which could fairly and reasonably be said to be comprised in the items but was remotely connected with the topics of legislation therein contained. Mr. Taraporewalla also urged that the residual power of legislation which was vested in the Governor General under the terms of Section 104 of the Government of India Act was not a mere nondescript as stated in the judgment of Sulaiman J. in Subramanyan v. Muttuswami. There were various topics of legislation which could not be thought of by the framers of the Act as comprised in the ordinary activities of the Government, and would have to be dealt with when emergency arose such as the present war which necessitated considerable encroachment on the liberties of the subject and his rights of property. When occasion arose for such emergency legislation it would be but natural to find that the particular powers which were sought to be acquired by the Government to meet the emergency might not be covered by the items in the lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to the items in those lists are plenary within their own sphere. In the exercise of those powers to make laws with respect to those items the Indian Legislature does not act as an agent of or exercise any delegated authority from the Imperial Parliament. It exercises plenary powers, as full powers as the Parliament itself could exercise with respect to the items in those lists. Even though those lists may have been meant to be as exhaustive and comprehensive as human ingenuity could make them, they were meant to comprise all that could be thought of as within the ordinary activities of the Government. Even though the emergency like the present war could well have been within the contemplation of the framers of the Constitution Act, there is no doubt that such powers as may have to be exercised in the case of such emergency could not have been contemplated to have been included in the items in those lists. Such powers as may have to be exercised by the Government according to the exigencies of the situation would have to be given to the Indian Legislature having due regard to the development of the situation from time to time and the exigencies of the situation and cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor General under the terms of Section 104 of the Government of India Act, such powers as had to be invested' in the Government by reason of the emergency which was brought about by the present war could not all have been contemplated and included in the topics or categories comprised in the Items in the lists of the seventh schedule to the Act. 43. If as I have already observed the lists of the seventh schedule to the Government of India Act were not as exhaustive and comprehensive as were intended by the framers of the Act to be, it remains to be seen how far the power of requisition of land can be said to have been comprised in item No. 9 or in item No. 21 in list II of the seventh schedule to the Government of India Act. In this behalf I may observe that I entirely agree with Mr. Taraporewalla as regards his submission on the method of approach and the canons of construction which should be adopted in the interpretation of the Constitution Act like the Government of India Act. I am of opinion that the canon of construction which warrants a large and liberal construction to be put upon the various provisions of the Government of India Act should be modified by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 292 of the Act. This argument, however, ignores the fact that the Government of India Act had dealt with restictions on legislative powers in Chapter II of Part V thereof commencing with Section 108 of the Act and that there was no question of laying down any further restriction on the same in Part XII thereof commencing with Section 292 of the Act. What was sought to be enacted under that heading and by the sections commencing with Section 292 of the Act were not restrictions on the powers of the Legislature but were certain fundamental principles of British jurisprudence, international law, His Majesty's prerogative to grant pardons, remissions of punishments and the like which should not be in any manner whatsoever affected or departed from in the exercise of the legislative powers invested in the Indian Legislature under the terms of the Government of India Act. Examples of this are to be found inter alia in the provisions of Section 298(1), Section 299(1) and (2) of the Government of India Act which are not merely restrictions on the legislative powers of the Indian Legislature but are in reality the statutory recognition of the fundamental principles of British ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When we go, however, to consider the decided cases on the point, so far as the word Acquisition is concerned, we find it used only in the sense of the compulsory acquisition of land which is enacted in the Land Acquisition Act I of 1894, or the compulsory purchase of land which is known to English law. As regards the word Requisition, we have a consideration of the same in The Meandros [1925] P. 61, where the following observations have been made (p. 65): The next question is as to requisition. The effect of requisition may be of the most various kinds. It is not an operation of stereotyped form. Requisition is not a term of Article It is barely more than a colloquial expression which has come into use during recent years. It has some connection with a term with which English people became familiar twenty-five years ago-the term 'commandeering'. A requisition is a process by which the State takes the use or the possession of, or the property in, chattels, and sometimes in land. But it is infinitely various. If, for instance, a stack of hay is requisitioned, it is requisitioned to be consumed; if premises are requisitioned they are requisitioned to be occupied; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of rights of ownership therein. The Advocate General in this connection drew the attention of the Court to a decision of the High Court of Australia on appeal from the Supreme Court of New South Wales reported in The Minister of State for the Army v. Dalziel 68 Com. L.R. 261, which he contended was on all fours with the present case. The authority of the decisions of Australian and Canadian Courts was considered by Gwyer C. J. in In re C.P. Motor Spirit Act (p. 5, col. 1): The decisions of Canadian and Australian Courts are not binding upon us, and still less those of the United States, but, where they are relevant, they will always be listened to in this Court with attention and respect, as the judgments of eminent men accustomed to expound and illumine the principles of jurisprudence similar to our own; and if this Court is so fortunate as to find itself in agreement with them, it will deem its own opinion to be strengthened and confirmed. But there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the) Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation as payable to Dalziel which he refused to accept, forwarding his claim for compensation to a Compensation Board which in its turn found that Dalziel was entitled to compensation, but that the basis set out in the Basis of Compensation Order made under reg. 60H did not provide just terms. The Board did not make any allowance for loss of profits and fixed the amount of profits as # 197 as full compensation, comprising thirteen weeks at # 8 per week in lieu of reasonable notice to quit, # 104; goodwill #91; and for removal of fixtures #2, refusing to allow any additional amount for future or other rental. Dalziel applied to the Supreme Court of New South Wales in accordance with Section 60G for a review of the assessment made by the Compensation Board on the ground that he was entitled to more compensation than the amount awarded by the Board. A similar application was made by the Minister of State for the Army, on the ground that Dalziel was not entitled to any compensation, in addition to that offered by the Central Hirings Committee. Upon preliminary points of law Roper J. held that the right to the possession of the land conferred upon the Commonwealth by reg. 54 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of land. The National Security Act is based upon the same assumption. Section 5 of that Act provides that 'the Governor General may make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, and in particular. (b) for authorizing-(i) the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking; or (ii) the acquisition, on behalf of the Commonwealth, of any property other than land . [See the same provisions in the Emergency Powers (Defence) Act, 1939 (2 3 Geo. VI, c. 62, Section 1(2)(b)(i) and (ii). And see also the Compensation (Defence) Act, 1939 (2 3 Geo. VI, c. 75, Section 1). The distinction between (i) and (ii) is the distinction between taking of possession of property and the acquisition of property.] In the present case the question arises as to the acquisition of land. The Commonwealth cannot be said to have acquired land unless it has become the owner of land or of some interest in land. If the Commonwealth becomes only a possessor but does not become an owner of land, then, though the Commonwealth may have rights in respect to land, which land may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated in the cases cited-they are inalienable personal rights and the Commonwealth is not a grantee of property but a licensee. Such personal rights are not proprietary rights. After having come to that conclusion on grounds of general reasoning, the learned Chief Justice came to the conclusion that the taking of possession of land under the regulations did not amount to the acquisition of an interest in land so as to bring about an acquisition of property within the meaning of Section 51(xxxi) of the Constitution, The learned Chief Justice further supported his reasoning that there was a real difference between, on the one hand, taking possession of land for a temporary purpose under those particular regulations, and, on the other hand, the acquisition of land, by reference to similar statutes and decisions of the Courts thereon. He referred to the cases of Attorney-General v. De Keyser's Royal Hotel [1920] A.C. 508, A Petition of Right, In re [1915] 3 K.B. 649, Whitehall Court, Limited v. Ettlinger [1920] 1 K.B. 680, Matthey v. Curling [1922] 2 A.C. 180, Robinson Co. v. The King [1921] 3 K.B. 183, Swift v. Macbean [1942] 1 K.B. 375, and also the provisions of the Defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned Judges of the High Court of Australia in that case and prefer to adopt the ratio of Latham C.J. in arriving at the conclusion that the requisition of land by the Commonwealth in that case was not an acquisition of property within the meaning of Section 51(xxxi) of the Constitution. 48. I am, therefore, of opinion that the authorities cited by the Advocate General do not lend support to his contention that requisition is included in acquisition but that it is separate and distinct from acquisition. 49. Turning now to the legislative practice in England as well as in India which, according to the authorities cited before me by the Advocate General, can be resorted to while construing the provisions of a Constitution Act like the Government of India Act, one finds that so far as legislative practice in England is concerned, the Defence Act, 1842 (5 6 Vic. c. 94), which was an Act to consolidate and amend the Laws -relating to the Services of the Ordnance Department, and the vesting and Purchase of Lands and Hereditaments for those Services, and for the Defence and Security of the Realm, laid down a clear distinction between the compulsory purchase of lands and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period, or of stopping up or diverting public or private footpaths, or bridle roads, may also be exercised at any time by the Secretary of State for War for the service of the department or the defence of the realm. Mr. Taraporewalla, however, drew my attention to the relevant provisions contained in Section 16 of the Defence Act of 1842 which were supposed to be the foundation of the statements contained in para. 660 in Halsbury's Laws of England above referred to, and it was found that instead of lending support to that statement there was a clear distinction drawn between compulsory purchase of land absolutely and temporary use and possession of land for a limited period. I am, therefore, of opinion that so far as legislative practice in England is concerned, there is no warrant for holding that requisition is included in the acquisition. 51. As regards the legislative practice in India, Mr. Taraporewalla traced the position right from the year 1861 when the Indian Councils Act, 1861 (24 25 Vic. c. 67) was enacted. That was an Act passed by the Imperial Parliament to make better provision for the Constitution of the Council of the Governor General of India, and for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil of State and the Legislative Assembly. Section 65(1) of that Act conferred on the Indian Legislature powers to make laws which were almost parallel to the powers granted to the Governor General in Council by Section 22 of the Indian Councils Act of 1861. There were, however, limitations of such powers enacted by Section 65(2) of that Act which limited the powers of the Indian Legislature to enact laws, which limitations were again parallel to those which were laid down in the provisos to Section 22 of the earlier Act. Provisions were, however, made for the making of rules under that Act (a) for the classification of subjects in relation to the functions of the Government as Central and Provincial subjects, for the purposes of distinguishing the functions of local Governments and local Legislatures from the functions of the Governor General in Council and the Indian Legislature, (b) for devolution of authority in respect of Provincial subjects to local Governments and for the allocation of revenue or other monies to those Governments . These devolution rules were to be made by the Governor General in Council with the sanction of the Secretary of State in Council and were to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. After the Collector had made his award he was empowered to take possession of the land which was thereupon to vest absolutely in the Crown free from all encumbrances. Special powers were given in cases of urgency where even though no award had been made by the Collector, the Collector was, whenever the Provincial Government so directed, empowered on the expiration of fifteen days from the publication of the notice of the intended acquisition, to take possession of any waste or arable land needed for public purposes or for a company, and in such cases such land was to thereupon vest absolutely in the Government, free from all encumbrances. Provision was made for reference to Court in the event of the award of the Collector not being acceptable to the persons interested and Sections 23 and 24 of the Act provided what matters were to be considered in determining compensation and what matters were to be neglected in determining the same. These were the matters to be considered by the Collector and by the Court alike, and there were provisions for the apportionment of compensation as well as for payment of the amount finally determined. Under these provisions the word acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act the persons interested in the land, the subject-matter of such temporary occupation thereof, were entitled to, if the land had become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term of temporary occupation to require the Provincial Government to proceed under that Act to acquire the land as if it was needed permanently for a public purpose or for a company. I am of opinion that but for this proviso to Section 36(2) of the Act the temporary occupation of land which is the subject-matter of enactment in Part VI of the Land Acquisition Act would never have been included in that Act at all. I am supported in this conclusion of mine by the provisions of Section 48 of the Act which lay down that except in the cases provided for in Section 36, the Government should be at liberty to withdraw from the acquisition of any land of which possession had not been taken It shows that once the possession was taken the acquisition of land was final and the Government could not withdraw from the same, because under the earlier provisions of the Act once possession of the land was taken by the Collector the land was to vest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d trustees, were enacted therein. Chapter IX, however, of that Act laid down provisions as regards Certain obligations in the Nature of Trusts and the various relationships which were analogous to that between a trustee and a cestui que trust were provided for in the sections which were 'enacted under chap. IX of that Act beginning with Section 80 and ending with Section 96 thereof. By no stretch of imagination could those relationships be brought within the definition of trusts, and the very heading of chap. IX and the terms of Section 80 definitely showed that those relationships which were provided for in that chapter were not trusts but were obligations in the nature of trusts. Could it be urged, therefore, by reason of the fact that those obligations in the nature of trusts were enacted within the provisions of the Indian Trusts Act that those relationships were included in the definition or conception of trusts, which only were the subject-matter of the enactment of that Act? 54. Mr. Taraporewalla similarly drew my attention to the Indian Contract Act IX of 1872. The preamble to that Act ran as under: Whereas it is expedient to define and amend certain parts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property. It is unnecessary here to dilate upon the distinction between easements on the one hand and licences on the other. Suffice it to say that these two conceptions are quite distinct the one from the other and it could not be urged by reason of the enactment of the provisions as to licences in the Indian Easements Act that licences were included in easements. 56. Mr. Taraporewalla, therefore, urged that by reason of the enactment of the provisions as to temporary occupation of land in the Land Acquisition Act I of 1894 it could not be validly contended that temporary occupation of land was included within the acquisition of land. I accept this argument of Mr. Taraporewalla and have come to the conclusion that the enactment of these provisions as to temporary occupation of land in the Land Acquisition Act does not establish what is contended for by the Advocate General, viz. that temporary occupation of land for public purposes or for a company was included in the compulsory acquisition of land. 57. No change was or has been made in this conception of the acquisition of land since the enactment of the Land Acquisition Act I of 1894 by the Indian Legislature. That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Legislature there not in the sense of the acquisition of land as known to the Land Acquisition Act I of 1894, viz. an acquisition of land which vested absolutely in the Crown free from all encumbrances. This argument of the Advocate General, however, cannot carry him any further, because it is this very Act, viz. the Defence of India Act, XXXV of 1989, and the provisions as to requisition of land enacted therein under Section 2(2)(xxiv) of that Act which are impugned as ultra vires the Central Legislature and it would be of no avail to refer to the provisions of the impugned Act itself as a guide to the legislative practice in India. Even though this provision is no doubt to be found in Section 19 of the Act, we have in Rule 2, Sub-rule (11), of the Defence of India Rules enacted thereunder, a definition of requisition which says that: 'requisition' means in relation to any property to take possession of the property or to require the property to be placed ,at the disposal of the requisitioning authority. When we go further to Rule 75A which deals with the requisitioning of property, no doubt within the definition of this very word requisition , a clear demar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Act. 60. I will now proceed to consider whether the requisition of land is included in item No. 21 in list II of the seventh schedule to the Government of India Act. As I have already stated item No. 21 relates to land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land ; land improvement and agricultural loans ; colonization ; Courts of Wards ; encumbered and attached estates ; treasure trove. 61. The topic or the category of legislation land is no doubt very wide in its scope and would include within itself a very wide range of topics. The framers of the Government of India Act have, however, thought it fit to elaborate that topic by adding what may be described as an amplification or explanation of that topic or category of legislation. This amplification or explanation is, however, prefaced by the expression that is to say. This expression that is to say has been the subject-matter of judicial interpretation. In Stroude's Judicial Dictionary, 2nd edition,' we find under the heading That is to say the following (p. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters in one list or the other. A remote connection would not be enough. It must be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that topic or category of legislation. Could it be said that merely because the requisition of land which is the subject-matter of these proceedings has reference to land , such requisition is ancillary or subsidiary to that topic or category of legislation land , and can be said to be fairly and reasonably comprised within it, or could it be urged as it has been urged by Mr. Taraporewalla that such requisition of land is only remotely connected with the topic or category of legislation land described in item No. 21? In my opinion even though a large and liberal interpretation requires to be given to this topic or category of legislation land described in item No. 21, it is of necessity limited by the user of the expression that is to say which I have already stated has been judicially interpreted to mean laying down restrictions on the generality of the topic or category of legislation which it goes to explain. I am therefore of opinion that the general topic or category of le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the creation of those rights, transfer of those rights and amplification and explanation of those rights, and it was therefore contended that it was open to the Legislature under this item No. 21 to legislate for the requisition of land of the type enacted in Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules. This argument is no doubt very plausibly. It was, however, pointed out to me that the expression rights in or over land has been used in Section 299 of; the very same Government of India Act, 1935. Section 299(5) enacts that in that section land includes Immovable property of every kind and any rights in or over such property. This expression is no doubt again capable of a very wide interpretation. It was in fact contended by the Advocate General that any rights in or over Immovable property included the right to requisition property as was sought to be done in this very matter by the Collector qua the proprietors of the Kokwah Chinese Restaurant. If one has regard, however, to the subject-matter of Section 299 of the Government of India Act, 1935, which has been described in the marginal note thereof as Compulsory acquisition of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , lays down: It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Courtauld v. Legh (1869) L.R.130, The Queen v. Poor Law Commissioners; In the matter of the Hoborn Union (1838) 6 Ad. E. 57. In re Cirhstall Brewery, Company, Limited and Reduced (1877) 5 Ch. D. 535, the judgment of Cockbum C.J. in Smith v. Brown (1871) L.R. 6 Q.B. 729, and Baggally L. J. in The Franconia (1877) 2 P.D. 163. When precision is required, no safer rule can be followed than always to call the same thing by the same name. Having regard to this principle of interpretation, I am of opinion that the expression rights in or over land used in the latter part of item No. 21 is used in the same sense as the expression rights in or over Immovable property which is used in Section 299(5) of the Government of India Act and that the rights in or over land mean not personal rights, not rights of temporary use and possession of land, but rights whereby some interest is created in the land itself. If that is the true construction of the expression rights in or over land the rights which are created in the Government by the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 21 in list II of the seventh schedule to the Government of India Act, and that even though there was a proclamation of emergency by the Governor General under Section 102(1) of the Government of India Act the Central Legislature did not derive any power to make a law with respect to a topic or category of legislation which was not comprised in any of the three lists of the seventh schedule to the Government of India Act. I, therefore, hold that the Central Legislature had no power or authority to enact a provision with regard to the requisition of land as was comprised in Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules framed thereunder in the absence of any public notification by the Governor General under Section 104(1) of the Government of India Act issued by him in exercise of his residual powers of legislation and empowering the Central Legislature to enact a law with reference thereto. I, therefore, hold that the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules framed thereunder with reference to the requisition of Immovable property without a public notification by the Governo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Kokwah Chinese Restaurant including the landlord's fittings and fixtures, that the Government did not either in terms or by necessary implication requisition the goodwill attached to the premises or to the business of the Kokwah Chinese Restaurant, that the destruction if any of the goodwill which might result from the premises being handed over by the petitioners to the respondent in accordance with the terms of the requisition order was not the direct result of the requisition of the premises by the respondent, that such destruction of the goodwill was a matter to be taken into account by the authorities in awarding compensation to the petitioners which compensation was always being made and was going to be made even to the petitioners without stint or reserve, that by no stretch of imagination could the requisition order dated February 16, 1945, be construed as requisition of the goodwill of the premises and the business of the Kokwah Chinese Restaurant, that the respondent was not dealing in any manner whatever with the commercial undertaking which was carried on by the petitioners in the premises, that what was sought to be done by the respondent was within the fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es after the emergency was over, they might not be able to enjoy that advantage of the goodwill attached to the premises!; and the business as they were enjoying at the present moment. Could it be, however, said that by reason of these circumstances the respondent was requisitioning the goodwill along with the premises? In my opinion the loss of the goodwill attached to the premises and the business of the Kokwah Chinese Restaurant conducted therein would no doubt be the necessary result of the requisition of the premises by the respondent. The same would not, however, convert the requisition of the premises into a requisition of the goodwill attached to those premises and the business. It would no doubt be a count in the claim for compensation which the petitioners would' be entitled to sustain against the respondent by reason of the requisition of the premises. In fact it was so mentioned by the petitioners in the correspondence which took place between the petitioners and the respondent in October-November 1944 when the respondent carried on correspondence with the petitioners with a view to the requisition of the Kokwah Chinese Restaurant under the Defence of India Act. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...an undertaking such as the Lahore Electric Supply Company, which was what has been called a ' going concern', was nothing but a collection of items of movable and Immovable property. A careful examination of the provisions of Rule 75-A shows conclusively that this rule is not applicable at all to the requisition or acquisition of an 'undertaking' [as a; going concern such as the Electric Supply Co.] The learned Chief Justice thus came to the conclusion that the undertaking not being: either moveable or Immovable property within the meaning of Section 2(2)(xxiv) of the Defence of India Act could not be made the subject-matter of either a requisition or acquisition within the meaning of Rule 75A of the Defence of India Rules. This judgment of the Lahore High Court was approved of and relied upon by Das J. in In the matter of the Continental Hotel in Calcutta [1945] Calcutta case (Unreported), where Mackertich John, the proprietor of the Continental Hotel, was the petitioner and H.C. Gupta, the Additional Land Acquisition Collector of Calcutta, was the respondent. In that judgment Das J. dealt with the argument that Rule 75A did not authorise the requisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for doubting that part of the decision of the Lahore High Court. That was sufficient for the purpose of the Lahore case. The learned Chief Justice then went on to fortify the judgment by holding that Rule 75-A was not applicable at all to the requisition of an undertaking such as the Lahore Electric Supply Company. I regret I do not see my way to follow the reasoning in that matter. Rule 75-A provides that for purposes of the defence of British India, public safety, the maintenance of public order, or the efficient prosecution of the War or for maintaining supplies essential to the life of the community, the Government may, by order in writing, requisition any property moveable or Immovable and may make such further orders as to the Government may have been necessary or expedient for requisitioning. The words 'any property, moveable or immovable' must necessarily include all kinds of property, land, buildings, machinery and chattels of any kind, and anything that can be described as property. This prima facie covers a business, and its goodwill. With great respect to the learned Chief Justice of the Lahore High Court, I share the regret of Derbyshire C.J. in not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h by the owners thereof These powers of control are certainly narrower in their scope than powers of requisition of such property vested in the Government under the provisions of Section 2(2)(xxiv) of the Defence of India Act and have been specially vested in the Government under Section 2(2)(xx) of the Defence of India Act for the purposes therein specified. I am, therefore, of opinion that even though Section 2(2)(xx) of the Defence of India Act and Rule 81 of the Defence of India Rules deal with commercial or industrial undertakings, the mode which is therein prescribed is not the only mode in which the Government can deal with property employed in agriculture, trade or industry. The wider) powers which are vested in the Government under Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules are not in any manner whatever curtailed by the provisions of Section 2(2)(xx) of the Defence of India Act and Rule 81 of the Defence of India Rules. The powers which are vested in the Government under Section 2(2)(xx) of the Defence of India Act and Rule 81 of the Defence of India Rules can be exercised by the Government for the purposes therein mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of ensuring the public safety and interest and the defence of British India. He urged that in the matter of this order Sated February 16, 1945, the respondent very well knew that the business which was being carried on by the petitioners there was the business of the Kokwah Chinese Restaurant which, as I have already observed is fitted up with costly fixtures, fittings and furniture, which employs about twenty-four servants, which commands a great reputation and caters for a large clientele, which enjoys considerable goodwill and is one of the leading Chinese Restaurants in Bombay. He pointed out that as early as November 13, 1944, the petitioners had informed the respondent as to what the exact position was with respect to the Kokwah Chinese Restaurant in this connection. He contended that in view of all the above circumstances the order dated February 16, 1945, which directed that the possession of the premises occupied by the Kokwah Chinese Restaurant including landlord's fittings and fixtures should be delivered to the Commander 167-L of C sub-area forthwith was passed by the respondent in flagrant disregard of the provisions of Section 15 of the Defence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cure the defect in the order, that the order was such as to cause the greatest inconvenience and hardship to the petitioners even though due regard be had to the purpose of ensuring public safety and interest and the defence of British India, and that therefore the order being in flagrant disregard of the provisions of Section 15 of the Defence of India Act was illegal, void and inoperative in law. 70. The Advocate General, on the other hand, contended that the provisions of Section 15 of the Defence of India Act were directory or recommendatory and should not be read as mandatory, that they merely laid down recommendations or instructions as regards the mode in which the powers vested in the Government were to be exercised and any breach of the provisions, provided it did not amount to the exercise of the powers vested in the Government for collateral purposes or mala fide, could not be the subject-matter of adjudication by the Court, that Section 16(1) of the Defence of India Act which laid down that no order in the exercise of any power conferred by or under this Act should be called in question in any Court was a bar to the Court investigating whether the order which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary avocations of life and the enjoyment of property as little as may be consonant with the purposes therein mentioned. Though the question whether the interference with the ordinary avocations of life and the enjoyment of property is in a particular case as little as may be consonant with the purposes therein mentioned may have to be determined by the authority or person who is passing the order in the exercise of the powers vested in him under the Defence of India Act and the Defence of India Rules framed thereunder, the provisions of Section 15 of the Defence of India Act are none the less mandatory. They have got to be complied with. I cannot accept the argument which was advanced by the Advocate General that Section 15 of the Defence of India Act merely contained recommendations or instructions for the guidance of the authority or the person acting in pursuance of the Act and that any breach of the provisions therein contained, howsoever flagrant the same might be, would not go to the root of the order but would have to be dealt with only by the attention of the Government being drawn to such breach by the subject suffering the hardship by reason of the issue of such an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany, Limited, Lahore v. The Province of Punjab I.L.R. (1943) Lah. 617., where he has discussed various authorities in this connection. He referred to the observations of Lord Thankerton in Secretary of State for India v. Mask Co. [1940] Mad. 599 : 42 Bom. L.R. 767. (p. 614): It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. He also referred to the observations of Lord Reading C.J. in Rex v. Brixton Prison (Governor): Sarmo, Ex parte [1916] 2 K.B. 742 (p. 749): If we were of opinion that the powers were being misused, we should be able to deal with the matter. In other words, if it was clear that an act was done by the Executive with the intention of misusing those powers, this Court would have jurisdiction to deal with the matter. The observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act were not complied with, if the powers were being misused, if what was really done was the exercise of an abuse of power, if the powers had been exceeded (abuse being only one form of excess) and if the exercise of the powers was not made bona fide but for a collateral purpose. The observations in Kewalram v. Collector of Madras AIR1944Mad285 are also to the same effect in so far as they lay down that Section 16 of the Defence of India Act does not preclude the Court from deciding whether a power has been conferred or whether a power which has been conferred has been abused. To the same effect again are the observations of Base J. in Prabhakar v. Crown [1943] Nag. 154 (p. 172): It is to be observed that Section 16 requires that the order be passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power. It is not enough therefore that these orders should be passed under colour of the power conferred. They must be done in actual exercise of it and, as I read the law, no power is conferred to make such orders in bad faith, or in abuse of the Act, or for the purpose of effecting a fraud on the Act, and consequently these issues m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready held the same to be, the Court on the construction of Section 16(1) of the Defence of India Act which 1 have referred to above would not be able to call that order in question unless the breach of the provisions of Section 15 of the Defence of India Act was such as would go to the root of the bona fides of that order? It was contended by the Advocate General that unless the breach of the provisions of Section 15 of the Defence of India Act complained of went to the root of bona fides of the order, the order could not be at all questioned in any Court. I am unable to accept that contention. In my opinion, it is not only in cases where the bona fides of the particular order are questioned that the order can be called in question in any Court. In addition to the impeaching of the bona fides it is also open to a party to contend that the order complained of is such that the provisions of the Act have not been complied with, that the powers vested in the authority or the person acting in pursuance of the Act are being misused, that the powers vested in such authority or person have been exceeded or that the power conferred on such authority or person has been abused. In the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prayer (a) of the petition was not under any law for the time being in force clearly incumbent on the respondent in his public character. He urged that there was no statutory provision which enacted that such forbearing was clearly incumbent on him in his public character and unless there was any statutory obligation cast upon the respondent to forbear from doing so or unless it was shown that a duty towards the petitioners had been imposed upon the respondent by statute so that he could be charged thereon, the Court had no jurisdiction to issue an order and injunction directing the respondent to forbear from doing the acts mentioned in prayer (a) of the petition. 79. In this connection he relied upon a passage in Halsbury's Laws of England, Hailsham Edition, Vol. IX, p. 744, para. 1269: The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies strictly confine themselves within the exercise of those duties which are confided to them by the law, this Court will not interfere. The Court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this Court no longer considers them as acting under the authority of their commission, but treats them, whether they be a corporation or individuals, merely as persons dealing with property without legal authority. He also relied upon the observations of their Lordships of the Privy Council in Commissioner of Income Tax, Bombay v. Bombay Trust Corporation, Limited (1936) 39 Bom. L.R. 18 : The doctrine is well illustrated by that decision and by the cases therein mentioned, but is even more fully expounded in The Queen v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387. The principle is that the Court cannot claim even in appearance to command the Crown, and where an obligation is cast upon the principal the Court cannot enforce it against the servant merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression under any law for the time being in force, should not be restricted in its operation to a statute or an Act of the Legislature which laid down the duties to be performed by the public officer in his public character but should be interpreted by the Court to mean any duty which is laid down on such person in his public character under any law for the time being in force, via common law, statute law, or even the personal law of the party complaining against the act of such public officer, that even though Section 45 of the Specific Relief Act could not be invoked by an applicant unless the respondent was a public officer and purported to do the act complained of in his public character, the question whether it was clearly incumbent on him to forbear from doing the act complained of in his public character should be determined not merely By investigating what were the duties laid down upon such person under any statute which created the public office or which laid down the duties to be performed by him as such, but regard should also be had in that connection to what may be called the general provisions of the law of the land including the provisions of common law in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstood in England. He therefore urged that there was no warrant for reading the expression any law for the time being in force in the restricted manner in which the Advocate General contended it should be read. He also pointed out that the petitioners here were not asking for any declaration. He further urged that even though the expression under any law for the time being in force be read by the Court as contended for by the Advocate General, there was in Section 299(1) of the Government of India Act a duty laid down upon every person including persons filling the rote of public officers not to deprive any person of property except by authority of law, and that if he succeeded in establishing before the Court that the requisition order dated February 16, 1945, was illegal, void and inoperative in law by reason of the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules being ultra vires the Central Legislature, he was entitled to ask for an order against the respondent under Section 45 of the Specific Relief Act directing him to forbear from doing the various acts mentioned in prayer (a) of the petition. He therefore urged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (a) of the petition under Section 45 of the Specific Relief Act. 82. There is no doubt that chap. VIII of the Specific Relief Act deals with the enforcement of public duties. Section 45 of the Specific Relief Act enacts that any of the High Courts of Judicature at Calcutta, Madras and Bombay might make an order requiring any specific act to be done or foreborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of Judicature: provided the conditions laid down in provisos (a) to (e) are fulfilled. Section 50 of the Specific Relief Act provides that neither the High Court nor any Judge thereof shall thereafter issue any writ of mandamus. The effect of those provisions is to take away the jurisdiction of the High Courts of Judicature of Calcutta, Madras and Bombay to issue the high prerogative writ of mandamus and to enact the relevant provisions in chap. VIII of the Specific Relief Act commencing with Section 45 of the Act. It is not necessary for me at this stage to go into the question whether any provisions of the high prerogative wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the facts of those particular cases. In the case before their Lordships of the Privy Council in Commissioner of Income Tax, Bombay v. Bombay Trust Corporation, Limited, the question whether it was clearly incumbent upon the public officer, viz. the Commissioner of Income Tax, Bombay, to do a particular act, had come up for decision with reference to the provisions of the Indian Income Tax Act, XI of 1922. In the case before B.J. Wadia J. in Shankarlal v. Municipal Commissioner of Bombay also the question whether it was incumbent upon the public officer, viz. the Municipal Commissioner of Bombay, to forbear from doing the acts complained of, had come up for decision with reference to the provisions of the City of Bombay Municipal Act. I am, therefore, of opinion that the observations contained in those two cases which have been called upon by the Advocate General, should be read with reference to the facts of those particular cases and should not be extended beyond what was warranted thereby. I do not think that in making those observations their Lordships of the Privy Council or B.J. Wadia J. intended to lay down that the expression any law for the time being in force was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in force clearly incumbent on the public officer acting in his public character to forbear from doing an act contrary to that well recognised principle of common law. Apart, however, from this argument of Mr. Taraporewalla, we have the statutory recognition of this principle in Section 299(1) of the Government of India Act; and even if a restricted interpretation of the expression any law for the time being in force used in proviso (b) to Section 45 of the Specific Relief Act be adopted as contended by the Advocate General, we have in Section 299(1) of the Government of India Act laid down a statutory duty on private citizens as well as public officers acting in their public character to forbear from doing acts which would be contrary to the provisions of that section. It would be clearly incumbent under the terms of that section upon a private citizen as well as a public officer acting in his public character to forbear from doing an act which would deprive a subject of his rights of property except under the authority of law ; and if a public officer acting in his public character issued an order which would not constitute any authority in law for depriving a subject of his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antiate those grounds. But it is not necessary for them to ask for a declaration to that effect in order to obtain such relief. As has been laid down by our Appeal Court in Balvant Ramchandra v. Secretary of State I.L.R. (1905) Bom. 480 : 7 Bom. L.R. 497 and by the full bench of our Court in Narasagounda v. Chawagounda I.L.R.(1918) Bom. 638 : 20 Bom. L.R. 802 ., it would be open to the petitioners to treat the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules which I have already held to be ultra vires the Central Legislature as void and a mere nullity and to treat the requisition order dated February 16, 1945, which also I have already held to be illegal, void and inoperative in law, as void and a mere nullity; and no suit or proceedings to have the same declared void or to set them aside would be necessary to be taken by the petitioners before they would be entitled to the relief prayed for by them in prayer (a) of their petition. 85. The Advocate General also argued in this connection that proviso (b) to Section 45 of the Specific Relief Act was based on the assumption that the statute under which it was clearly incumbent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of India Act in the manner he has purported to do. This will surely bring the action of the respondent within the four corners of proviso (a) to Section 45 of the Specific Relief Act even if contrary to what I have held above the contention of the Advocate General in the matter of the construction of the expression any law for the time being in force were correct. I am therefore of opinion that the objection of the Advocate General as to the maintainability of this petition against the respondent herein based on his contentions on the construction of proviso (a) to Section 45 of the Specific Relief Act fails. 86. The Advocate General further contended that the petitioners herein could not maintain this petition against the respondent because the provisions of proviso (d) to Section 45 of the Specific Relief Act were not fulfilled. He contended that the petitioners had other specific and adequate legal remedy in that they could file a suit against the Government of India for a declaration that the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules was ultra vires the Central Legislature and obtain the relief which they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or feasible remedy within the reach of the subject. There is also a decision of the Madras High Court in In the matter of G.A. Natesan and K.B. Ramanathan I.L.R. (1916) Mad. 125, in which Kumarswami Sastriyar J. observed (p. 165): As regards the contention that Mr. Natesan has got other adequate legal remedy, I find it difficult to see what other adequate legal remedy he has. It is well settled by a series of decisions that where a corporation or public body has a statutory duty of a public nature towards another person a mandamus will lie to compel its performance at the suit of any person aggrieved by the refusal to perform the duty unless there is another remedy 'equally convenient, speedy, beneficial and effectual' as the mandamus and that by remedy is meant not a remedy by act of the party but remedium juris or some specific legal remedy for a legal right.' I need only refer to In re Barlow, Rector of Ewhurst (1861) 30 L.J.Q.B. 271, The King v. The Archbishop of Canterbury and the Bishop of London (1812) 15 East 117 : S.C. 104 E.R. 789, Reg. v. Leicester Union [1899] 2 Q.B. 632, The Queen v. Price (1871) L.R. 6 Q.B. 411, The Queen v. Thomas [1892] 1 Q.B.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising the powers which had been vested in him under the notification of the Government of India, Co-ordination Department, No. 1336/OR/1/42 dated April 25, 1942, the respondent was not acting as an agent of the Government but was exercising the authority which had been delegated by the Government to him under Section 2(4) of the Defence of India Act, that even assuming that the respondent was the agent of the Government in the matter of the making of that requisition order, merely because the respondent was acting in the matter of the making of that requisition order dated February 16, 1945, as the agent of the Central Government, the Court was not deprived of its jurisdiction to pass an order under Section 45 of the Specific Relief Act against him because even as the agent of the Central Government, apart from the duty which he owed to the Central Government, he also owed duties to the petitioners to forbear from doing any act contrary to the principles of common law or contrary to the provisions of Section 299(1) of the Government of India Act, and that even though the Court could not pass any order against the Crown, the Court had jurisdiction to pass an order against the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 299(1) of the Government of India Act, any breach of such duty would give the petitioners a cause of action against the respondent herein and the petitioners would be entitled to sustain a petition for an order against the respondent under Section 45 of the Specific Relief Act. It may be that by reason of the respondent herein acting as the agent of the Central Government and by reason of the conclusion of the Court that the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules is ultra vires the Central Legislature being the foundation for making the requisite order against the respondent herein, the Central Government might respect the division of the Court within the meaning of the observations of Lord Reading in Rex v. Speyer: Rex v. Cassel [1916] 1 K.B. 595 (p. 610): The second ground proceeds upon the assumption that if the Court were to pronounce a judgment of ouster in this case we should be making an order upon the Sovereign. If that were the true view of such a judgment I should, of course, agree, as this Court could not make an order upon the Sovereign. To use the words of Cockburn C.J. in The Queen v. Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It is not quite clear that by that expression the Legislature intended anything more than merely orders passed against the Government, following in that respect the English Law. When we speak of an order being passed binding on a person, it can only be because he was a party to the order or else is so otherwise circumstanced as to have obligation cast on him by reason of the order to carry it out. When an order does not purport to be against a party and cannot of its own force oblige any party to do any act or to refrain from doing any act, it cannot be said that the order is binding on such party. So understood, it seems to me, that any order that the Court may pass restraining the respondent from holding an election on a particular date cannot be said to be binding on the Government ; because the Government are under no obligation by reason of the order to do anything or to omit to do anything. If, however, any other construction of the expression should be adopted, it will result in the Court being unable in most matters to make any order against any public servant of Government who may also be under statutory obligations towards the public as in this case to conduct himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Specific Relief Act is sought was merely acting as the agent of the Secretary of State, the Central Government, the Crown Representative, or any Provincial Government, and besides owing his duty to the principal, owed no duty whatever to the subject. In those cases where, apart from such agent owing a duty to his principal, he also owed a duty to the subject within the meaning of the observations of their Lordships of the Privy Council in Commissioner of Income Tax, Bombay v. The Bombay Trust Corporation, Limited (1936) 39 Bom. L.R. 18., the Court would certainly have jurisdiction to issue an order against him under Section 45 of the Specific Relief Act, having regard to the observations which I have quoted above from the decisions in Rex v. Speyer: Rex v. Cassel [1918] 1 K.B. 595, In re Manick Chand Mahata v. The Corporation of Calcutta and the Calcutta Improvement Trust I.L.R. (1921) Cal. 916 and Ekambara v. Madras Corporation A.I.R [1927] Mad. 22. 91. I am therefore of opinion that it is competent to the petitioners, under the authorities which I have hereinbefore cited, to maintain a petition against the respondent and it. is impossible to hold under the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied for against the secretary of a railway company to do something, it would not be granted, merely because the railway company his masters had an obligation to perform the duty, and it makes no difference that the master, or the principal, or the sovereign is only suable by petition of right, or perhaps not at all-There is the familiar case of the surveyor of highways who is the servant of the inhabitants of the parish ; the inhabitants of the parish cannot be sued, because they are not a body corporate, but the surveyor of the highways is not to be responsible for the non-performance of their duties, or the negligence of their servants, though he is the person who acts for them. The same principle applies to mandamus, if the duty is by statute, though perhaps 'duty' is hardly the word to employ with regard to Her Majesty ; where the intention of the legislature shows that Her Majesty should be advised to do a thing, and where the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obligation against the servants by mandamus merely because the sovereign happens to be the principal. The observations of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the genesis of the principle which has been enunciated in proviso (g) to Section 45 of the Specific Relief Act. If the object of these proceedings started by the petitioners in this petition was to obtain an order on the respondent as a public officer and servant of the Crown, merely to enforce satisfaction of a claim upon the Crown, within the meaning of the expression I have adopted above, then certainly it would not be open to the petitioners to maintain this petition. I may repeat here what I have stated erstwhile that the respondent in the present case is not acting merely as a servant of the Crown. Though he happens to be a public officer in the employ of the Government, he is not acting as the agent of the Government in the matter of the exercise of the powers which have been delegated to him by the Government under the provisions of Section 2(4) of the Defence of India Act and the notification of the Government of India, Defence Co-ordination Department, No. 1338/OR/1/42 dated April 25, 1942. I am, therefore, of opinion that this contention of the Advocate General based on the construction of the provisions of proviso (f) to Section 45 of the Specific Relief Act also fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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