MOHSINALI MAHOMEDALI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) By this petn. the petnr. challenges an order of requisition made by Govt. dated 22-11-1949, under Section 6(4)(a), Bombay Land Requisition Act, 1948. The petn. came before our brother Shah J. & before him the correctness of a decision of our brother Tendolkar J. reported in Jagatchandra v. Province of Bombay, was questioned. Shah J. had several other petns. tefore him where the same question was likely to arise, & in order that the matter should be finally settled I directed that the petn. should be placed before a bench, and this petition has now come up before this bench to decide the question, whether, when the Govt. makes a declaration under proviso I to Section 6 (4) that certain premises were or had become vacant, it is competent to the petnr. to go behind that declaration.

(2.) Section 6 of the Act provides that if any premises situated in a particular area are vacant and whenever any such premises are vacant or become vacant by reason of the landlord, the tenant, or the sub-tenant, as the case may be, ceasing to occupy the premises or by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other reason, the landlord of such premises shall give intimation thereof to the Govt. Sub-clause (2) of Section 6 provides the time within which such intimation has to be given; & Sub-clause (3) precludes the landlord from letting out or occupying or permitting to be occupied such premises with-out the permission of the Govt. & for a period of one month after intimation has been given to Govt. Then Sub-clause (4) provides for the order which may be made by the Provincial Govt., whether intimation of vacancy has been given by the landlord or not, & the order may be made under Sub-clause (a) requisitioning the premises & using or dealing with the premises in such manner as may appear to it to be expedient, & an order may also be made under Sub-clause (b) requiring the landlord to let the premises to specified persons or class of persons or in specified circumstances. The order in question in this petn. has been made under Sub-clause (a). Then we have the proviso which makes it incumbent upon the Provincial Govt. to make such inquiry as it deems fit & make a declaration in the order that the premises were vacant or had become vacant, & such declaration shall be conclusive evidence that the premises were or had so become vacant. Then there is an explanation to this section which amplifies the definition of 'vacancy' given in Section 6 (1), & among other things it provides that there shall be a vacancy when a tenant or subtenant ceases to be in occupation upon termination of his tenancy, eviction, assignment, or transfer in any other manner of his interest in the premises or otherwise, notwithstanding any instrument or occupation by any other person prior to the date when such tenant or sub-tenant ceases to be in occupation. It is clear from the Act that before Govt. can make a requisitioning order under Section 6 (4) (a) two conditions have to be satisfied: The premises must be the premises contemplated by the Act & they must be vacant as defined by Section 6. As to whether premises are vacant or not is not left to the decision or determination of the Ct., but the Act provides that a declaration made by Govt. that the premises were or had become vacant is conclusive evidence of that fact. A Bench of this Ct. laid down in P.V. Rao v. Girdharlal, 51 Bom. L. R. 418 : (A. I. R. (36) 1949 Bom. 303) that an order of requisition under this section is quasi-judicial order & a writ of certiorari can issue against Govt. when they act in excess of their jurisdiction.

(3.) The narrow question that we have to decide on this petn. is, what is the effect of the expression used by the Legislature in the proviso to Section 6 (4) that a declaration made by Govt. that the premises were or had become vacant is conclusive evidence. In this case the order itself, contains the requisite declaration. Now, looking to the plain words used in the proviso it is clear that the declaration made by Govt. is to be conclusive evidence & not merely prima facie evidence. It is evidence which cannot be rebutted or challenged. It is also clear that the declaration is conclusive evidence of a vacancy having occurred as contemplated by the statute. It is not conclusive evidence of any particular facts found by the Govt., but it is conclusive evidence of the legal concept of vacancy as understood by the Legislature. Therefore, in our opinion, it would not be true to say that the declaration is merely conclusive evidence as to the facts found by the Govt. leaving it to the Ct. to draw legal inferences from those facts. The declaration is conclusive evidence as to all the ingredients that go to constitute a vacancy under the Act. Tendolkar J. in the case to which we have referred, Jagatchandra v. Province of Bombay, 51 Bom. L. R. 997 : (A. I. R. (37) 1930 Bom. 144) took the view that the declaration was conclusive with regard to all facts involved in the determination of vacancy, but the declaration was not conclusive with regard to the inferences to be drawn from or the consequences of such facts since these were not matters of evidence. With great respect to the learned Judge, we fail to see how in face of the language used by the statute it could be said that the declaration was conclusive only as to some of the ingredients that go to constitute vacancy & not all the ingredients. The learned Judge in his judgment has referred to a decision of the P. C. in Moosa Goolam v. Ebrahim Goolam, 39 I. A. 237 : (40 Cal. 1 P.C.). That case was cited in support of the proposition that when the Legislature makes a certain document conclusive evidence as to a certain fact, then the Ct. must assume that all the requirements which were necessary in order to get that document were complied with & it would not be open to anyone to challenge the absence of any such requirement. In that particular case what was considered by their Lordships of the P. C. was the effect of a certificate of registration under the Companies Act, & the learned Judge doubted as to whether such a certificate would be conclusive with regard to any requisitions which require legal determination. In our opinion, a careful reading of the judgment of the P. C. makes it perfectly clear that the certificate under the Companies Act of registration is conclusive not only with regard to requisitions of fact but also requisitions which require legal determination. Nothing could be more emphatic than what is stated by Lord Macnaghten in the judgment of the P. C. at p. 243 :