1945 (8) TMI 13 - HC - Indian Laws

Issues Involved:
1. Validity of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules.
2. Jurisdiction, power, or authority of the respondent to issue the requisition order.
3. Compliance with Section 15 of the Defence of India Act.
4. Maintainability of the petition under Section 45 of the Specific Relief Act.

Detailed Analysis:

1. Validity of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules
The petitioners argued that Rule 75A of the Defence of India Rules was ultra vires the Central Legislature, as "requisition" was not covered by any entry in the three lists in Schedule VII of the Government of India Act, 1935. The Court examined the legislative framework under the Government of India Act, 1935, including Sections 99, 100, 102, and 104, and the relevant legislative lists in the Seventh Schedule. The Court also analyzed whether "requisition" could be considered part of "acquisition" under Item 9 or "land" under Item 21 of the Provincial Legislative List. The Court concluded that requisitioning property was not included in these items and thus was not within the legislative competence of the Central Legislature. Consequently, Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules were held ultra vires the Central Legislature.

2. Jurisdiction, power, or authority of the respondent to issue the requisition order
The petitioners contended that the respondent had no jurisdiction, power, or authority to issue the requisition order under Rule 75A, arguing that the order aimed to affect their business and goodwill, which should be governed under Rule 81 of the Defence of India Rules. The Court found that the respondent's order did not explicitly requisition the goodwill of the restaurant but only the premises. The destruction of goodwill was deemed a consequence of the requisition, not its direct object. The Court concluded that the respondent had jurisdiction under Rule 75A to issue the requisition order.

3. Compliance with Section 15 of the Defence of India Act
The petitioners argued that the requisition order violated Section 15, which mandates minimal interference with ordinary avocations of life and enjoyment of property. The Court examined the timeline and circumstances leading to the requisition order and found that the order to deliver possession "forthwith" was in flagrant breach of Section 15. The Court held that the order was an abuse of power, excessive, and not protected by Section 16(1) of the Defence of India Act, making it illegal, void, and inoperative.

4. Maintainability of the petition under Section 45 of the Specific Relief Act
The Court considered whether the petitioners could maintain their petition under Section 45 of the Specific Relief Act. It examined whether it was clearly incumbent on the respondent to forbear from enforcing the requisition order under "any law for the time being in force." The Court interpreted this to include common law principles and statutory provisions like Section 299(1) of the Government of India Act, which prohibits deprivation of property without authority of law. The Court concluded that the respondent had a duty to forbear from enforcing an illegal order and that the petitioners had no other specific and adequate legal remedy. Thus, the petition was maintainable.

Conclusion:
The Court ordered the respondent to forbear from enforcing the requisition order dated February 16, 1945, and directed him to refrain from taking any steps under or in respect of the order. The Court also awarded costs to the petitioners. A certificate under Section 205(1) of the Government of India Act was granted, indicating that the case involved a substantial question of law regarding the interpretation of the Government of India Act.

← Previous Next →