KAIKHUSROO PHIROZSHAH DOCTOR Vs. STATE OF BOMBAY

JUDGEMENT

(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 163- 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', 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', 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 under Section 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 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 that Section 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):