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Kaikhusroo Phirozshah Doctor Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 77 of 1954 and Misc. No. 230/X of 1954
Judge
Reported inAIR1955Bom220; (1955)57BOMLR24; ILR1955Bom69
ActsConstitution of India - Articles 19, 19(1), 31, 31(1), 31(2), 136, 141, 226 and 227; ;Bombay Land Requisition Act, 1948 - Sections 6 and 6(4); Representation of the People Act - Sections 105
AppellantKaikhusroo Phirozshah Doctor
RespondentState of Bombay
Appellant AdvocateN.A. Palkhivala and ;D.M. Buch, Advs.
Respondent AdvocateM.P. Amin, Adv. General and ;H.M. Seervai, Adv.
Excerpt:
.....purpose for requisitioning the property, and that the premises to be requisitioned must be vacant premises. if premises which are not vacant have been requisitioned, then it is a failure to comply with a condition precedent and it would be open to the party aggrieved by the order of requisition to challenge it on the ground that the premises which were requisitioned were not vacant. palkhivala therefore contends that inasmuch as the legislature has proceeded in section 6to substitute the declaration with regard to thevacancy as a condition precedent for the fact of vacancy itself, the legislature has impaired the jurisdiction of the high court under article 226 and has prevented the high court from deciding whether the condition precedent with regard to vacancy has been satisfied or..........of vacancy made by the state of bombay under section 6, bombay land requisition act and in view of the decision of this court in -- 'mohsinali mohomedali v. state of bombay', : air1951bom303 , it was not open to him to go behind that declaration. it was urged before the learned judge that a recent decision of the supreme court in --- 'raj krishna v. binod', : [1954]1scr913 had made an important alteration in the law and that --'mohsinali's case (a)' may be looked upon as overruled. the learned judge refused to take that view of the observations of the supreme court and proceeded to dismiss the petition.when this matter came before a division bench, in view of the importance of the question raised it was suggested by mr. palkhivala on behalf of the appellant and the.....
Judgment:

Chagla, C.J.

1. This is an appeal against the decision of Shah. J. by which he dismissed a petition preferred by the appellant challenging an order of requisition made on 16-3-1954, under Section 6(4), Land Requisition Act, 1948. The view taken by Shah J. was that by the petition the petitioner was intending to go behind the declaration Of vacancy made by the State of Bombay under Section 6, Bombay Land Requisition Act and in view of the decision of this Court in -- 'Mohsinali Mohomedali v. State of Bombay', : AIR1951Bom303 , it was not open to him to go behind that declaration. It was urged before the learned Judge that a recent decision of the Supreme Court in --- 'Raj Krishna v. Binod', : [1954]1SCR913 had made an important alteration in the law and that --'Mohsinali's case (A)' may be looked upon as overruled. The learned Judge refused to take that view of the observations of the Supreme Court and proceeded to dismiss the petition.

When this matter came before a Division Bench, in view of the importance of the question raised it was suggested by Mr. Palkhivala on behalf of the appellant and the Advocate-General on behalf of the respondent that the matter might be considered by a Full Bench. Therefore, this appeal now comes before us.

2. The question that arose in --'Mohsinali's case (A)' was whether a declaration made underSection 6(4), Bombay Land Requisition Act was conclusive both as to facts and as to law. Tendolkar J. had taken the view that the declaration was conclusive' only with regard to facts, but it was open to the Court to consider whether the legal requirements which went to constitute the vacancy had been satisfied or not. The appellate Court differed from the view of Tendolkar J., and held that the declaration was binding with regard to all aspects of vacancy and that it was not open to the Court either to go into the question Of facts or into the legal aspect of the vacancy once a declaration under Section 6(4) was made.

At that time the view taken was that the order of requisition was a quasi-judicial order and that the tribunal which made the inquiry & ultimately made the declaration was acting as a quasi-judicial tribunal and in that decision we therefore pointed out that a declaration made under Section 6(4) could be challenged properly by a writ of certiorari, and we indicated- what the limitations of this Court were when issuing a writ of certiorari.

We pointed out that if the decision of the tribunal was with jurisdiction, we could only interfere if there was an error apparent on the face of the record, and as in that case we did not find any error apparent on the face of the declaration made, we refused to interfere with the order Of acquisition.

3. Now, it is suggested that a recent decision Of the Supreme Court has put a different complexion on the matter and the recent decision on which reliance is placed is : [1954]1SCR913 . The Supreme Court was there considering a decision of an election tribunal and the view taken by the Supreme Court was that the decision of the election tribunal was not a proper decision. The Supreme Court set aside the decision of the election tribunal and remanded the matter to a new election tribunal to be set up by the Election Commissioner.

It was pointed out to the Supreme Court thatSection 105. Representation of the People Act made the decision of the election tribunal final and it was in connection with that section that the Supreme Court made the following observations (p. 204):

'Our power to make such an order was not questioned but it was said that when the Legislature states that the orders of a Tribunal under an Act like the one here shall be conclusive and final (Section 105), then we should not interfere. It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away or whittled down by the Legislature. So long as these powers remain, our discretion and that of the High Courts is unfettered.'

Now, with respect, this is a proposition of law to which expression has been given on several occasions by this Court also and in effect what the Supreme Court says is that if the Legislature attempts to make the decision of any tribunal final, it cannot by doing so prevent the HighCourt from issuing the proper writ either underArticle 226 or under Article 227.

In this particular case the Supreme court was dealing with Article 226 because the election 'tribunal was a judicial tribunal and the view taken by the Supreme Court was that there was an error apparent on the face of the record. Therefore, by making the decision of the election tribunal final the Legislature could not prevent either the High Court or the Supreme Court from interfering by a writ of certiorari in a case where a writ of certiorari could properly be issued.

In 'Mohsinali's case (A)' We laid down identically the same proposition. Although we held that the declaration under Section 6(4) was conclusive and binding, we were at pains to point out that in a proper case the Court would Have interfered with a writ of certiorari. The Supreme Court has subsequently held that the order of requisition is an administrative order and not a quasi-judicial order.

But even so, although the declaration made under Section 6(4) may be final and conclusive, it will not prevent the Court from interfering under Article 226 if in the opinion of the Court a writ of mandamus would properly lie, because if the order is an administrative order, the only way the Court can interfere with such an order would be by a writ of mandamus. Therefore, it is difficult to understand how this observation of the Supreme Court has in any way affected Mohsinali's decision (A) or the principle of law enunciated in that decision. The power of this Court under Article 226 remains unimpaired notwithstanding the fact that a declaration as to vacancy has been made conclusive by Section 6(4), Land Requisition Act. But the question that we have to consider is, what is the proper case in which the Court will issue 9 writ of mandamus when a declaration as to vacancy has been made under Section 6(4)

4. Now, Mr. Palkhivala's contention is that the power to, requisition conferred upon the State under the Land Requisition Act is conditioned by three limitations. It is not an absolute or arbitrary power. It is a power that can only be exercised provided three conditions are satisfied and those three conditions are that there must be premises to which the Act applies, that there must be a public purpose for requisitioning the property, and that the premises to be requisitioned must be vacant premises.

Mr. Palkhivala says that under Section 6 only vacant premises are to be requisitioned, and whether premises are vacant or not is an objective fact which, has to be objectively determined. Therefore, according to him it would be open to a citizen to come to this Court and challenge an order of requisition on the ground that one of the three conditions precedent has not been compiled with. If premises which are not vacant have been requisitioned, then it is a failure to comply with a condition precedent and it would be open to the party aggrieved by the order of requisition to challenge it on the ground that the premises which were requisitioned were not vacant.

Mr. Palkhivala therefore contends that inasmuch as the Legislature has proceeded in Section 6to substitute the declaration with regard to thevacancy as a condition precedent for the fact of vacancy itself, the Legislature has impaired the jurisdiction of the High Court under Article 226 and has prevented the High Court from deciding whether the condition precedent with regard to vacancy has been satisfied or not.

In order to appreciate the validity of this argument one must bear in mind what is the nature of a writ of mandamus. The Court issues a writ of mandamus in order to compel an authority to act according to the mandate of the Legislature. The Court is anxious to see that the authority does not step outside the ambit of the law within which its power must be exercised. The Court would be anxious to see that if any powers are conferred upon the authority, the powers are exercised strictly in accordance with the conditions and limitations laid down by the Legislature.

But mandamus can only function and operate within the law. Its main function is to see that law is observed. Therefore, if in this case the Legislature has laid down certain provisions and if those provisions are compiled with, then it is difficult to see how the assistance of this Court can be sought because the- citizen may feel a grievance that hardship is caused to him or that a better procedure should have been substituted in place of the one that the Legislature has thought fit to incorporate in the legislation.

It is perfectly true, as Mr. Palkhivala says, that the condition precedent to requisitioning the premises is vacancy, but it is equally true that the Legislature has thought fit to provide that a declaration made after such inquiry as may be held that certain premises are vacant is conclusive and it is not open to the Court to go behind that declaration. Therefore, in effect and in substance what the Legislature has provided is that those premises may be requisitioned with regard to which a declaration as to their being vacant has been made by the State.

Mr. Palkhivala has conceded that if the Legislature had provided that premises may be requisitioned if Government were satisfied that they were vacant, he could not have asked the Court to interfere once the Government had arrived at the necessary satisfaction. Mr. Palkhivala also concedes that if the Legislature had provided that the only condition precedent for the requisitioning of the premises was a declaration made by a competent officer, he could not have asked the Court to interfere because the condition precedent would, have been satisfied. But he says that the position in law is different from the two positions just referred to. The condition precedent is not the declaration and is not the satisfaction of the Government, but is the objective fact of vacancy itself.

In our opinion, we must read Section 6 as a whole, and reading that section as a whole, it is clear that although the Legislature required that the premises should be vacant and that only vacant premises could be requisitioned, the Legislature equally wanted to confer power upon the State Government to decide whether the premises were vacant or not. The Legislature has in the explanation to Section 6 given an indication as to what inits opinion is a vacancy. That would be a directive and a guidance to the authority holding the inquiry and making the declaration, but it is perfectly clear that the Legislature Intended that the declaration as to vacancy made after an inquiry should be conclusive, final and binding, and that the only tribunal that should determine the question of vacancy is the tribunal set up by the Legislature itself under Section 6(4).

5. Now, what we have to consider is what is there in the Constitution which prevents the Legislature from making the decision of a particular tribunal final? Does that fact in any way militate against the jurisdiction and the power of the High Court under Article 226? In our opinion it is clear that no question of mandamus can possibly arise where the Legislature has chosen to make the decision of a certain authority final and conclusive. It is difficult to understand how it could be said in this case that In making a declaration as to vacancy the Government has in any way acted contrary to the statute, or that it has done anything which would justify interference by the Court in its decision or action.

The real grievance of the petitioner is not that the Government has not complied with the provisions of the law or carried out the directions of the Legislature, but that the law passed by the Legislature is not such as meets with the wishes and approval of the petitioner. The grievance is against the declaration, as to vacancy being made conclusive.

But the Court in exercising its jurisdiction under Article 226 and issuing a writ of mandamus does not alter the law in order to remove the grievances. Its function is to enforce the law, whatever the nature or character of the law might be, and when a party comes to this Court under Article 226, it requires the assistance of the Court to carry out the provisions of the law on the assumption that those provisions are valid provisions and effect must be given to those provisions.

Therefore, in our opinion, once the true nature of the writ of mandamus is appreciated, it is clear that this Court cannot Interfere under Article 226 with a declaration made by a competent authority under Section 6(4), Land Requisition Act, that certain premises were vacant or had become vacant.

6. Therefore, in our opinion, there is nothing in the judgment of the Supreme Court which in any way impairs the validity of the decision given in -- 'Mohsinali's case (A)'. Notwithstanding the declaration to be'made under Section 6 and notwithstanding the provisions of Section 6, the power of the High Court under Article 226 remains entirely unimpaired and the High Court can always act under that Article whenever a proper case is made out for its interference by a writ of mandamus or by any other writ or direction.

7. It was then sought to be argued by Mr. Palkhivala that the provisions of Section 6(4) are bad inasmuch as they offend Article 19(1)(f) of the Constitution, and the argument is put this way. Mr. Palkhivala says that whether premises are vacant or not are left in the uncontrolled deci-sion of the executive. There is no appeal from that decision and that decision cannot be challenged before any Judicial tribunal. It is therefore suggested that to deprive a citizen of his property after a decision so given is putting a restriction upon the right of a citizen to -hold property which is not a reasonable restriction at all.

It is also pointed out by Mr. Palkhivala that under Section 6(4) (i) no particular inquiry is obligatory. In other words, Government strictly in law may arrive at a decision that a property is vacant without giving any notice to the party affected and without holding any formal inquiry. This raises a very interesting question, but before we go into it we must be satisfied that Article 19(1)(f) has any application to the facts of this case. Now, when property is requisitioned, the person against whom the order is made is deprived of his property, and we have taken the view that in the case of deprivation of property the proper Article to consider is not Article 19(1)(f) but Article 31(1) or 31(2). That view will be found in -- 'Heman Santlal Alreja v. Bombay State', : AIR1951Bom121 .

Mr Palkhivala says that that view has not found favour with a recent decision of the Supreme Court in -- 'Virendra Singh v. State of. Uttar Pradesh', : [1955]1SCR415 . We may point out that in 'Alreja's case (C)' we based our view on two decisions of the Supreme Court, viz.. -- 'A.K. Gopalan v. State of Madras', : 1950CriLJ1383 and -- 'Charanjit Lal v. Union of India', : [1950]1SCR869 . Now, the recent decision of the Supreme Court on which reliance is placed dealt with the case of revocation of a grant and the learned Judges of the Supreme Court came to the conclusion that the deprivation could not be justified under Article 31(1) of the Constitution. But their Lordships went on to observe that the action of the Government concerned could not be defended also on the ground 'that Article 18(1)(f) was attracted, and it is therefore urged by Mr. Palkhivala that although this was a case of deprivation of property, the view taken by the Supreme Court was that not only Article 31(1) applied but also Article 19(1)(f).

We have had occasion recently to point out that we must show the same respect for an 'obiter dictum' of the Supreme Court as we used to show to the 'obiter dictum' of the Privy Council. Judicial discipline undoubtedly requires it. But we also pointed out what are the 'obiter dicta' which require to be followed by the High Courts in India. Any considered opinion by the Supreme Court, even on a point which does not Strictly arise for decision, must be accepted by the High Courts as laying down a statement of law which must be followed. But with great respect to the Supreme Court, we do not read this particular observation as laying down that the views of the Supreme Court, expressed with great emphasis and after due deliberation, have been set aside by a passing casual observation that Article 19(1)(f) applied to the facts of that case.

There is a further aspect to which attention might also be drawn. We have a judgment of a Division Bench 'and we should be satisfied that the Supreme Court has expressly or by necessary implication overruled that judgment. We see no indication whatsoever of the Supreme Court having done so. Therefore, unless the Supreme Court at some future date more carefully considers this aspect of the case upon which Mr. Palkhivala places great emphasis, we do not think that we would be justified in departing from the view consistently, held by this Court since 'Alreja's case (C)' was decided. We have, therefore, not permitted Mr. Palkhivala to argue that if Article 19(1)(f) applied the restrictions placed upon the rights of the petitioner are not reasonable restrictions, and therefore they contravene his fundamental rights. If the matter goes higher, it would be open to him to place this contention before the Supreme Court and invite authoritative opinion on that point.

8. The result is that the appeal fails and is dismissed. No order as to costs.

9. Appeal dismissed.


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