TAN BUG TAIM Vs. COLLECTOR OF BOMBAY

JUDGEMENT

(1.) THE petitioners are partners carrying on business in partnership in the firm name and style of Kokwah Chinese Restaurant at Dhanraj Mahal, Apollo Bunder, Bombay. THEy have been occupying shops Nos. 1, 5 and 11 on the ground-floor of the Dhanraj Mahal and have been conducting the business of the restaurant since March 22, 1944, when they purchased the restaurant together with its paraphernalia and goodwill from the previous owners thereof on payment of a sum of Rs. 42,000. THE restaurant has been in existence in any event from and after May 1942 when the previous owners stopped their business of curios which they had been carrying on there along with the business of restaurant and converted the whole premises for their user as a restaurant. THE restaurant employs about twenty-four servants and is fitted up with costly fixtures, fittings and furniture which has been installed therein. It also enjoys considerable goodwill in so far as it commands a great reputation and caters for a large clientele 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.) IN paragraph 5 of their petition the petitioners contended that Rule 75a of the Defence of INdia Rules appears to have been framed by the Central Government in the exercise of its powers under Section 2 (2) (xxiv) of the Defence of INdia Act, that "requisition" was a distinct and separate category of legislative powers, that requisitioning of property was not covered by or included in any entry in the three lists contained in Schedule VII to the Government of INdia Act, 1935, that the Central Legislature was not competent and had no authority to legislate in respect thereof, and that therefore the said order had no legal foundation in law, was ultra vires, bad and inoperative in law. Without prejudice to their contentions, the petitioners contended in paragraph 6 of their petition that by means of the order which purported to be made under Rule 75a and apparently referred to and was issued in respect of the premises, the real and true aim of the respondent was to aim at and affect their business and undertaking which they had been carrying on at the premises, that the object of the respondent was realty and truly to curb, control and proceed against the business and undertaking of the petitioners and that he had therefore no jurisdiction, power or authority to proceed under Rule 75a, the only way in which he could 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 to act in such a manner as to interfere with the ordinary avocations of life and enjoyment of property as little as possible, that the respondent had acted in such a way as to cause the greatest inconvenience and hardship to the petitioners and that therefore having disregarded the provisions of Section 15 of the Defence of INdia Act, the order was in any event illegal, void and inoperative in law. It was on the basis of these contentions, which I have herein set out, that the petitioners submitted that their case fell within the provisions of Section 45 of the Specific Relief Act and asked for an order and injunction of this Court in terms of prayer (a) of their petition.