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Ratanchand Hirachand Vs. D.R. Pradhan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous No. 2 of 1948
Judge
Reported inAIR1949Bom93; (1948)50BOMLR614
AppellantRatanchand Hirachand
RespondentD.R. Pradhan
Excerpt:
.....so far as the present ordinance which is challenged is concerned, i am satisfied that it does not in any manner deal with any matter which is covered by the power of the dominion legislature regarding requisition......in respect of orders of requisition passed under ordinance no. v of 1947, being the bombay land requisition ordinance, 1947. a common question of law of considerable importance arises in these petitions, namely, whether the governor of bombay had any authority to promulgate the ordinance, and, therefore, my learned brother coyajee j. directed that notice should be given to the dominion of india, and the advocate general of india has appeared before me on behalf of the dominion of india. i decided to try this question as a preliminary issue in these matters and i have heard parties thereon. the matter arises in this way:2. ordinance no. v of 1947 is made under the authority conferred on the provincial legislature to enact laws with respect to requisition of land by a notification.....
Judgment:

Tendolkar, J.

1. These are several petitions presented by different parties for writs of certiorari in respect of orders of requisition passed under Ordinance No. V of 1947, being the Bombay Land Requisition Ordinance, 1947. A common question of law of considerable importance arises in these petitions, namely, whether the Governor of Bombay had any authority to promulgate the Ordinance, and, therefore, my learned brother Coyajee J. directed that notice should be given to the Dominion of India, and the Advocate General of India has appeared before me on behalf of the Dominion of India. I decided to try this question as a preliminary issue in these matters and I have heard parties thereon. The matter arises in this way:

2. Ordinance No. V of 1947 is made under the authority conferred on the Provincial Legislature to enact laws with respect to requisition of land by a notification of the Governor General of India being the Government of India, Ministry of Law, Notification No, F311-47-C. & G. dated October 21, 1947. It is contended that the Governor General had no authority to issue this notification under Section 104 of the Government of India Act, as he has purported to do, and that consequently the Governor of Bombay did not derive any authority to make the Ordinance.

3. In order to consider how far this argument is well-founded one has got to go back to the provisions of the Government of India Act. That Act provides for the distribution of legislative powers between the Dominion Legislature and the Provincial Legislature. In the seventh schedule to that Act are set out, in three parts, matters in respect of which the Dominion Legislature, the Provincial Legislature and both the Legislatures can legislate, being the Federal Legislative List, the Provincial Legislative List and the Concurrent List respectively. But, exhaustive as these lists were intended to be, they could not conceivably comprise every object of legislation; and, therefore, provision was made for residual powers of legislation under Section 104 of the Government of India Act. That section provided that with respect to any matter which was not enumerated in any of the lists in the seventh schedule the Governor General may by a public notification empower either the Dominion Legislature or the Provincial Legislature to enact laws. During the emergency created by the last war the Defence of India Act and the Defence of India Rules were made which contained powers for requisitioning property; but, it was held by my learned brother Bhagwati J. that those provisions regarding requisition were ultra vires inasmuch as requisitioning was not one of the matters enumerated in any of the three Lists in the seventh schedule of the Government of India Act. This created a somewhat serious situation as the Government had, for the emergency created by the war, requisitioned numerous properties for public purposes. Accordingly the India (Proclamations of Emergency) Act, 1946, was passed on February 14, 1946. That Act provides for the amendment of Section 102 of the Government of India Act. That section deals with the powers of the Dominion Legislature, if an emergency is proclaimed? but those powers were, under the Act as it then stood, limited to matters enumerated in the seventh schedule. The effect of the amendment was that during the period when a proclamation of emergency was in force the Dominion Legislature was empowered to make laws for any Province or part of a Province or for the whole of the Indian Dominion with respect to any matter not enumerated in the seventh schedule. This amendment was made to date back to the commencement of Part III of the Government of India Act, 1985, which was April 1, 1937; and power was given in the case of orders of Courts already made for a review of those orders on the footing that the law always was as set out in this amending Act.

4. We next have another amendment to extend temporarily the powers of the Indian Legislature to make laws. That was made by the India (Central Government and Legislature) Act, 1946, which was passed on March 26, 1946. That Act in Section 2 thereof conferred on the Dominion Legislature powers to legislate with respect to matters therein enumerated during the period mentioned in Section 4 thereof. Section 3 of the Act, which is the section with which we are concerned on the present petition, related to requisitioned land and it is in these terms:

3. Requisitioned Land:

(1) Notwithstanding anything in the Government of India Act, 1935, the powers of the Indian Legislature to make laws shall extend to the making of laws:

(a) providing, in relation to land in a province which, when the Act of the Indian Legislature known as the Defence of India Act, 1939, expires, is subject to any requisition effected under the rules made under that Act, for the continuance, until not later than the end of the period mentioned in section four of this Act, of all or any of the powers theretofore exercisable under the said Act of the Indian Legislature or the said rules; and

(b) providing, in particular, for the continuance as aforesaid of the power of the Governor General in Council compulsorily to acquire any such land as aforesaid for any purposes directly and without the interposition of any Province and any laws made by virtue of this subsection may contain provisions with respect to offences against the laws, enquiries and statistics for the purposes of the laws, jurisdiction and powers of all Course, except the Federal Court, with respect to any of the matters dealt with by the laws, and fees in respect of any of those matters, but not including fees taken in any Court; and Sub-sections (2) to (4) of the last preceding section shall apply in relation to any such laws as they apply in relation to laws made under that section.

Now, as I read this section, it confers upon the Dominion Legislature power to make laws to the limited extent provided in Clause (a) and (b) of this sub-section. Clause (a) deals with lands which are already subject to any requisition and provides in respect thereof that the Dominion Legislature may make laws for the continuance of all or any of the powers which were formerly exercisable. It does not, to my mind, confer upon the Dominion Legislature any power to enact laws with regard to requisitioning in general. The period during which the Dominion Legislature can continue the powers already conferred by existing laws in respect of property which was then subject to requisition is limited to the period mentioned in Section 4. Then Section 4 says that the period shall be one year beginning with the date on which the proclamation of emergency in force ceases to operate, and if the Governor General so notifies two years beginning with that date. Now the proclamation of emergency ceased to operate on March 31, 1946, and by a notification issued by the Governor General on March 8, 1947, the period under Section 4 was extended to two years, beginning with April 1, 1946, i.e. to March 31, 1948. So that the position under this Act was that up to April 1, 1948, so far as requisitioning is concerned, the Dominion Legislature was entitled to continue in force legislation relating to requisition, in so far as it related to land which was already the subject of requisition. Under this power Ordinance No. XIX of 1946 was promulgated and was subsequently substituted by Act XVII of 1947.

5. It has been argued by Mr. Taraporewalla that inasmuch as power was conferred on the Dominion Legislature to legislate in respect of requisition of land, Section 104 cannot apply to requisition of land at all; and the Governor General had no jurisdiction to provide by notification that either the Dominion or the Provincial Legislature can legislate with regard to requisition of land. In the view I take of the India (Central Government and Legislature) Act, 1946, I do not agree with Mr. Taraporewalla that a general power was conferred upon the Dominion Legislature to legislate in respect of requisition of land up to April 1, 1948. Such power was no doubt conferred on that Legislature during the time the proclamation of emergency was in force; but thereafter the only power that the Legislature had with regard to requisitioning was to continue in force the existing legislation up to April 1, 1948, with regard to property which was subject to requisition on March 26, 19-16, when the India (Central Government and Legislature) Act, 1946, was enacted. That being so, it is not necessary for me to consider the argument whether, in an emergency, if by an amendment of Section 102 of the Government of India Act, the powers of the Dominion Legislature were extended to matters not enumerated in the seventh schedule of the Government of India Act, the power of the Governor General under Section 104 to deal with such matters is automatically taken away. In so far as the present Ordinance which is challenged is concerned, I am satisfied that it does not in any manner deal with any matter which is covered by the power of the Dominion Legislature regarding requisition. It was contended by Mr. Taraporewalla that, in any event, to the extent to which the Ordinance deals with the continuance of requisition, it covers a subject which was within the competence of the Dominion Legislature by reason of the India (Central Government and Legislature) Act, 1946. If it were so, it might have been that to that extent the Provincial Legislature had no jurisdiction to enact the Ordinance. Section 5 of that Ordinance which deals with continuance of requisition is in these terms:

5. Continuance of requisition.-(i) Notwithstanding anything contained in the Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947), the provincial Government may, by order in writing, direct that any land which was continued under requisition under the said Act, shall continue to be subject to requisition under this Ordinance when it is released from requisition under the said Act or ceases to be subject to requisition for any reason ; and the Provincial Government may use or deal with the land so continued to be subject to requisition in such manner as may appear to it to be expedient.

It is plain that this provision takes effect only when any provision made under the legislative powers of the Dominion for continuance of requisition comes to an end and not till then. Therefore, even with regard to the continuance of requisition the Ordinance does not in any way conflict with the power conferred on the Dominion Legislature to legislate in respect of requisition of land. That being my view, I am of the opinion that the Governor General had authority to issue the notification whereby he conferred on the Provincial Legislatures power to enact laws with respect to requisition of land and Ordinance No. V of 1947, which is promulgated in pursuance of the power so conferred on the Provincial Legislatures, is valid and operative.

6. The costs of this issue which was argued in Misc. No. 2 of 1948 will be dealt with by me when I dispose of the petition.


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