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TMI Blog1945 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... n so far as it commands a great reputation and caters 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taurant an order being order No. MILY-86 tearing 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 imprisonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have acted in the matter having been to proceed under Rule 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might be approached in that behalf. It was also stated that on the present occasion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral and Mr. G.N. Joshi appeared for the respondent. At the very commencement 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was guilty of any discrimination as against the owners of Chinese 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... okwah, as according to him the witness was certainly not competent to say anything in 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinese Restaurant from the previous owners thereof together with its goodwill for 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 betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Section 99 therein enacts that subject to the provisions of the Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (2) being the Provincial Legislative List, and list (3) being the Concurrent Legislative List. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion of the Central Government or the Provincial Government it is necessary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishable with imprisonment for a term which may extend to three years 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Act the Court should not approach the matter in a narrow and a pedantic sense but should 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further relied on the case of In re C.P. Motor Spirit Act, in which at p. 4, col. 2, Gwyer 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in 1942. Every intendment ought therefore to be made in favour of a legislature which is exercising 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Imperial Parliament has thought fit to use the expression 'with respect to' which obviously 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 exhaust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time when it was passed. 39. Mr. Taraporewalla for the petitioners, however, urged 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not dispute that the Imperial Parliament had supreme and plenary powers to legislate 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplated by the framers of the Government of India Act. He therefore urged that there was no justification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists of the 7th schedule to the Act, though the powers of the Indian Legislature to make laws 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of legislation would have to be covered by the provisions of the residual powers of legislation invested in the 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 libera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous and General items and was under the heading of "provisions as to certain legal matters" which commenced with 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 legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for; to demand, call for, request to have or get; and (b) to call in for some purpose. This dictionary meaning, therefore, of the words "Acquisition" and "Requisition" does not carry the matter any further. 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 possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously would regard as a requisition a case where the Government having taken possession of a cargo kept it in the ship at their disposal,…. These observations, again, lead to the conclusion that the word "requisition" was understood to mean a dominion or control of the property and not the acquisition 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 agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght relating thereto, whether by way of an interest in land or otherwise. There was correspondence between the solicitors of Arthur Dalziel and the Deputy Assistant Director of Hirings in regard to the compensation payable to him in respect of such requisitioning. The Central Hirings Committee determined certain compensation 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 applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch may be done by virtue of the Regulations, including taking possession and user of land which may cause loss or damage to persons interested in property….It has already been shown that the Regulations proceed upon the basis that the taking possession of land under the Regulations does not amount to the acquisition 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he position of a licensee with rights as stated in the regulations. In the present case the rights of the Commonwealth to use land for purposes of defence are created, not by contract, but by action taken by the Commonwealth under the Regulations. But the rights so created are, in my opinion, of the same character as those which were created 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts created in the Commonwealth under the terms of the notice dated May 5, 1942, closely analogous to, though not identical with, compulsory acquisition of land, and was therefore an acquisition of property within the meaning of Section 51(xxxi) of the Constitution. I respectfully dissent from the reasoning adopted by the majority 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the acquisition of property on the other. The Advocate General drew my attention to a passage in Halsbury's Laws of England, Hailsham Edition, Vol. VI, p. 532, para. 660, which stated that: Certain compulsory powers of purchasing any lands, buildings, or other hereditaments or easements, either absolutely or for a limited 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and 9 & 10 Geo. v, c. 101) was enacted legislative powers were granted to the Indian Legislature with a classification of Central and Provincial subjects between1 the Central and Provincial Legislatures. Under Section 63 of that Act, an Indian Legislature was constituted consisting of the Governor General and two Chambers, viz. the Council 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under his hand of (i) the true area of the land, (ii) the compensation which in his opinion should be allowed for the land, and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he had information, whether or not they had respectively appeared before 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Act. It is to be noted, however, that this temporary occupation of land which was provided for in Part VI of the Land Acquisition Act appears to have been enacted in the Act not because such temporary occupation of land was included in the acquisition of land which was the object of the enactment of that Act, but because as stated in the proviso to Section 36(2) of 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to that Act ran as under: Whereas it is expedient to define and amend the law relating to private trusts and trustees ; It is hereby enacted as follows: The trusts which were the subject-matter of that enactment were defined in Section 3 of the Act and right up to chap. VIII which ended with Section 79 of the Act all provisions with reference to the trusts and 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces has been well-known to law. The very definition of a licence under Section 52 of the Act in terms lays down that a licence is the grant of a right to do something or to continue to do something in or upon the Immovable property of the grantor which would in the absence of such right be unlawful and such right does not amount to an easement or an interest in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me can be made applicable; and (ii) whether the acquisition is of a permanent or temporary character. He urged that in this provision the Legislature had enacted that the acquisition which was the subject-matter of the rules as to compensation enacted in that section could be of a permanent or a temporary character and that therefore the word "acquisition" was used by 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 definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as well as India hereinbefore referred to, I have come to the conclusion that the requisition of land, the subject-matter of these proceedings, is not included in, nor is it an ancillary or subsidiary matter which can fairly and reasonably be said to be comprehended in the item of compulsory acquisition of land which is item No. 9 in list II of the seventh schedule to the Government of 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this item No. 21 by the Advocate General. Even though the items comprised in these lists have got to be read not in a narrow and restricted sense but in a large and liberal manner, there are no doubt limitations to that principle of interpretation as I have already observed. The subject-matter of legislation which comes for consideration before the Court must be "with respect to" a topic or category of legislation enumerated in the lists. This means that it must substantially be with respect to matters 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 topi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or limitative of the general topic or category of legislation "land" described in item No. 21. 62. If that is the true construction of the contents of item No. 21, it remains to consider whether the rights in or over land which have been mentioned therein as the subject-matter comprised in this topic or category of legislation "land" do include the requisition of land which is the subject-matter of these proceedings. If the Legislature has got the power to enact laws with regard to rights in or over land, it was contended that it could also have the power to legislate with regard 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 sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed as right, title and interest in the property, but are certainly not what may be called personal rights to temporary use and possession of land which are the rights vested in the Government by the requisition of property. If this be the true construction of the expression "rights in or over Immovable property" which has been used in Section 299 of the Government of India Act, can it be said that the same expression which has been used in item No. 21 in list II of the seventh schedule to the Government of India Act is used in any different sense whatever? Maxwell on the Interpretation of Statutes, 8th edition, p. 276, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of property" was well-known to the framers of the Government of India Act, 1935, and on the reasoning which I have adopted above, it was impossible to contend that the requisition of property of the nature we have in these proceedings could by any stretch of imagination be construed as a transfer of property from the owner of the property to the Government. In so far as this particular point was not seriously pressed by the Advocate General, I do not think it is necessary for me to deal with it in any further detail.... 64. Having regard to all the circumstances detailed above, I have come to the conclusion that the requisition of land is not included either in item No. 9 or item 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the requisition of the premises described in the order dated February 16, 1945, that the only way in which that commercial undertaking could be dealt with was under Rule 81 of the Defence of India Rules and that therefore the requisition order which had been served on the petitioners was without any jurisdiction, power or authority in the respondent to issue the same under the provisions of Rule 75A of the Defence of India Rules and was therefore illegal, void and inoperative in law. The Advocate General, on the other hand, contended that the only thing that was nought to be done under the terms of the requisition order dated February 16, 1945, was the requisition of the premises occupied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises by the petitioners to the respondent or to the Military authorities as directed in the requisition order would result in the suspension or the partial destruction of the goodwill attached to the premises or the business of the Kokwah Chinese Restaurant conducted therein, if the petitioners were not in a position to obtain suitable premises in the locality and' to carry on their business of the Kokwah Chinese Restaurant in such premises. It might as well be that all the advantage which they had obtained by reason of their ownership of the goodwill might be lost to them, their custom might be destroyed and whenever the petitioners happened to get back possession of the premises 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisition order dated February 16, 1945, also requisitioned the goodwill attached to the premises and the business of the Kokwah Chinese Restaurant conducted therein. This contention of Mr. Taraporewalla therefore need not be dealt with by me. 68. Mr. Taraporewalla further contended that the commercial undertaking which was being conducted by the petitioners in the premises was neither moveable nor immovable property within the meaning of Section 2(2)(xxiv) of the Defence of India Act. He relied upon the observations of Young C.J. in The Lahore Electric Supply Company, Limited, Lahore v. The Province of Punjab I.L.R (1943) Lah. 617., where the learned Chief Justice observed (p. 639): ...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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chatterjee then referred to the Lahore Electric Supply Company's case mentioned above where the Punjab Government who had powers to take over the Lahore Electric Supply Company under certain Acts, but found difficulties in its way of doing so,, purported to act under Rule 75-A of the Defence of India Rules and requisitioned the whole of the undertaking. The learned Chief Justice after dealing with the circumstances came to the conclusion that the Punjab Government was not acting bona fide under Rule 75-A, but using it in order to acquire the undertaking which it found difficult in doing owing to its. laches under the Acts which entitled the Government to acquire it, I can see no 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r industry for the purpose of regulating or increasing the supply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connection with the conduct of war or for maintaining supplies and services essential to the life of the community. It does not refer to the requisition of any property employed in agriculture, trade or industry. It merely refers to the control thereof for the purposes specified therein. Under the terms of Section 2(2)(xx) of the Defence of India Act and Rule 81 of the Defence of India Rules the Government controls and directs in what manner the particular property employed in agriculture, trade or industry should be dealt with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Defence of India Rules, hut with full jurisdiction, power or authority to do so and therefore valid and operative in law. I therefore negative this contention of Mr. Taraporewalla. 69. The last contention of Mr. Taraporewalla was that in any event the requisition order dated February 12, 1945, was illegal, void and inoperative in law as contravening the provisions of Section 15 of the Defence of India Act. He drew my attention in this behalf to the provisions of Section 15 of the Defence of India Act which laid down in terms that Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect instead of rushing to this Court, showed that the premises which had been requisitioned by the respondent were certainly not required forthwith by the respondent for the purpose mentioned in the said requisition order, that under the circumstances therefore the requisition order which had been issued by the respondent directing the petitioners to forthwith deliver possession of the said premises was such as interfered with the ordinary avocations of life and the enjoyment of the property by the petitioners in a manner contrary to the provisions and in any event the spirit and intendment of Section 15 of the Defence of India Act. He urged that the statement made by the respondent in para. 7 of his affidavit did not 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of India Act is directory and must be read in conjunction with Section 16 of the Defence of India Act which says that no order made in exercise of any power conferred by or under the Act shall be called in question in any Court. Of course that does not preclude the Court from deciding whether a power has been conferred or whether a power which has been conferred has been abused. 71. I am not prepared to hold that the provisions of Section 15 of the Defence of India Act are not mandatory but are merely directory or recommendatory. The language of Section 15 of the Defence of India Act is very clear on the point. It provides that the authority or person acting in pursuance of the Act shall interfere with the ordinary 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by or under this Act shall be called in question in any Court. In order that an order should not be called in question in any Court, that order must be made in exercise of the power conferred by or under the Act. If the order is in fact not made in the exercise of the power conferred by or under the Act, or has been made in colourable exercise of the power conferred by or under the Act, or is made for a collateral purpose and not bona fide, it would certainly not be an order made in the exercise of the power conferred by or under the Act and will not be protected under the section. In this connection I may refer to the observations of Young C.J. at pp. 635 and 636 of the case of The Lahore Electric Supply Company, 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had special powers conferred on them by Parliament for effecting a particular purpose, they could not be allowed to exercise those powers for any purpose of a collateral kind. 73. These observations and the conclusion which he came to on the basis thereof, namely, that Section 16 of the Defence of India Act was no bar to the jurisdiction of a civil Court if the order under Rule 75A of the Defence of India Rules was ultra vires -and was not made bona fide but for a collateral purpose really go to show that Section 16(1) of the Defence of India Act would not protect orders even though they might have been made in purported exercise of the powers conferred by or under the Act if the provisions of 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith or the powers conferred by the Act were being misused or the powers conferred by the Act had been exceeded or the powers conferred by the Act were being used mala fide and for a collateral purpose. 75. If this is the true position as regards the scope and effect of Section 16(1) of the Defence of India Act, what would be the position if the Court in fact found that an order passed by the authority or person acting in pursuance of the Act was passed in flagrant disregard of or in contravention of the provisions of Section 15 of the Defence of India Act? Would it be possible to contend that even though the provisions of Section 15 of, the Defence of India Act were mandatory as I have already 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of India Act, I now proceed to consider whether the Court has power to issue an order against the respondent under Section 45 of the Specific Relief Act, 1877, under the circumstances. 78. The Advocate General contended that even though the respondent herein was a public officer, the conditions of proviso (b) to Section 45 of the Specific Relief Act were not satisfied because the forbearing from executing the requisition order dated February 16, 1945, and/or enforcing delivery of possession of the premises of the Kokwah Chinese Restaurant as directed by the requisition order and/or from taking any other steps or proceedings under or in respect of the order which was prayed for 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remedial nature and is in form a warrant 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, is in the nature of a public duty, and is consonant to right and justice. Its purpose is to supply defects of justice…. The principles by which the Courts will be guided in such matters are laid down by Lord Cottenham C. in Frewin v. Lewis q in the following words: 'The limits within which this Court interferes with the acts of a body of public functionaries...are perfectly clear and unambiguous. So long as those functionaries 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 treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbent upon him to do under the Act. On the basis of those observations of B.J. Wadia J. the Advocate General also contended that though the petitioners ostensibly sought to obtain an order under Section 45 of the Specific Relief Act directing the respondent to forbear from doing the various acts mentioned in prayer {a) of the petition, the real motive of the petitioners was to obtain a declaration that the requisition order dated February 16, 1945, was illegal, void and inoperative in law, a declaration which they could not obtain in proceedings taken by them under Section 45 of the Specific Relief Act, 81. Mr. Taraporewalla, on the other hand, contended that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of the duties discharged by them on behalf of the Crown. Where, however, Government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards such subjects, a writ of mandamus will lie for the enforcement of such duties. He urged that proviso (a) to Section 45 of the Specific Relief Act was taken from the law in England as stated in this passage from Halsbury's Laws of England and that the expression "under any law for the time being in force" should be understood as meaning "Royal Charter, statute or common law" as understood 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st two decisions relied upon by him, he contended that in the case of the enactment of Section 2(2)(xxiv) of the Defence of India Act and Rule 75A of the Defence of India Rules which he contended were ultra vires the Central Legislature it was not necessary for the petitioners to sue for a declaration that the said enactment was ultra vires the Central Legislature and that it should be treated as a nullity. He further contended that in the case of the requisition order dated February 16, 1945, also it was similarly not necessary for the petitioners to sue for a declaration that the said order was illegal, void and inoperative in law before the petitioners could obtain the relief which they claimed in prayer (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bombay v. Bombay Trust Corporation, Limited and Shankarlal v. The Municipal Commissioner of Bombay, appear on a literal reading of the observations relied upon by him to support his contention that before an order could be made against the public officer under Section 45 of the Specific Relief Act, it must be shown that the duty towards an applicant has been imposed upon him by the statute so that he could be charged thereon and that what is or is not clearly incumbent must be determined by reference to the provisions of the statute or regulations under which the act complained of should have been done or foreborne, I accept the argument of Mr. Taraporewalla that the observations in those two cases should be read with regard 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. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipled of British jurisprudence that no person shall be deprived of his property except by authority of law, a principle which I have already stated before, finds its statutory recognition in Section 299(2) of the Government of India Act, 1935. That is the principle which would be enforced by Courts in British India as a part of the common law to be administered by them in the course of the administration of justice, and would be equally applicable to private individuals as to public officers acting in their public character. If a public officer acting in his public character acted contrary to that principle of law, it would be certainly open to the Courts to direct him to forbear from doing any act contrary thereto, it being under that law for the time being 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&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(1) of the Government of India Act, directing him to forbear from doing the various acts mentioned in prayer (a) of the petition. No doubt the relief mentioned in prayer (a) of the petition is based on the contentions 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 and the requisition order dated February 16, 1945, is illegal, void and inoperative in law. These are, however, the grounds for the relief which is prayed for by the petitioners against the respondent in prayer (a) of their petition. The substantive relief which the petitioners are asking for against the respondent under the terms of prayer (a) of the petition would be competent to them to obtain only if they substantiate 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law for the time being in force, viz. the general law of the land, or the provisions of the common law in that behalf. Apart from the above considerations, there is also a further consideration which obtains in this particular case. As I have already held the requisition order dated February 16, 1945, is illegal, void and inoperative in law as contravening the provisions of Section 15 of the Defence of India Act. If that were so, it would be clearly incumbent on the respondent who is a public officer acting in his public character in the matter of the requisition order not to exercise the power which is vested in him by the notification of the Government of India, Defence Co-ordination Department, No. 1336/OR/1/42, dated April 25, 1942, issued under Section 2(4) of the Defence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual." There are also observations of Bowen L.J. to the same effect in In re Nathan (1884) 12 Q.B.D. 461 (p. 468): A writ of mandamus, as everybody knows, is a high prerogative writ, invented for the purpose of supplying defects of justice. By Magna Charta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice. If, therefore, there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done. The proceeding, however, by mandamus, is most cumbrous and most expensive; and from time immemorial accordingly the Courts have never granted a writ of mandamus when there was another more convenient, 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that the respondent herein was exercising the powers which had been vested by the Central Government in him under the terms of the Notification of the Government of India, Defence Co-ordination Department, No. 1336/GR/1/42 dated April 25, 1942, that in the matter of the making of the said requisition order he was acting as the agent or servant of the Central Government, that if the Court passed an order as prayed for by the petitioners against the respondent, it would be making an order which would be binding on the Central Government and that therefore the petition was barred under the provisions of proviso (f) to Section 45 of the Specific Relief Act. 88. Mr. Taraporewalla, on the other hand, contended that the Central Government were not parties to this petition, that in 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 agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lards 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, merely as such. Before mandamus can issue to a public servant it must therefore be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown his principal. If as I have already held the respondent herein independently of any duty which he owed to the Central Government as his principal, also owed a duty to the petitioners by reason of the principles of common law or by reason of the provisions 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 conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Reading were quoted with approval by Greaves J. in In re Manick Chand Mahata v. The Corporation of Calcutta and the Calcutta Improvement Trust I.L.R. (1921) Cal. 916. I may also in this connection refer to a decision of the Madras High Court in Ekambara v. Madras Corporation AIR1927Mad22 and the observations therein at p. 33, col. 1: Mr. Rangaswami Aiyangar argued that even though the order in this case may only be directed to the Commissioner restraining him from holding the election on a particular date, since the Government has fixed the date, any such order restraining him must be regarded as an order binding on the Government and therefore not capable of being passed by the Court. The expression 'binding on the Government' is a somewhat curious expression. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government, the Crown Representative, or any Provincial Government, which have been mentioned in Clause (f) of Section 45 of the Specific Relief Act, would certainly; not be parties to such proceedings and no order passed by the Court under Section 45 of the Specific Relief Act would, if the contention of Mr. Taraporewalla was correct, be ever binding on them because they were certainly not to be parties to the proceedings. The enactment of proviso (f) to Section 45 of the Specific Relief Act would thus, the Advocate General submitted, be absolutely nugatory. I do not, however, accept this contention of the Advocate General. Proviso (f) to Section 45 of the Specific Relief Act is enacted to meet those cases where the party against whom an order under Section 45 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, This position has been considered in Halsbury's Laws of England, Hailsham Edition, Vol. IX, p. 761, para. 1293 ; As no Court can compel the Sovereign to perform any duty, no writ of mandamus will lie to the Crown. Where it is sought to establish a right against the Crown the appropriate procedure is by way of petition of right. As was observed by Blackburn J. in The Queen v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387 (p. 398): The general principle, not merely applicable to mandamus but running through all the law, is, that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as servant. To take a familiar instance, if a mandamus were applied 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ury's Laws of England, which I have above referred to, one finds that they were all cases where though the public servants were ostensibly proceeded against, the object of the pursuers was to reach the funds or property which had gone into the hands of the Crown and that the motive of the pursuers was, through the public servants who were proceeded against ostensibly, to reach such funds or property in the hands of the Crown. There is also another passage in Halsbury's Laws of England, Hailsham Edition, Vol. IX, p. 752, para. 1281, which may be noted in this connection: A mandamus will issue to Government officials in their capacity as public officers exercising executive duties which affect the rights of private persons. 94. That is really 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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