LADY DINBAI PETIT Vs. M S NORONHA

JUDGEMENT

(1.) THE petitioners are the trustees of a deed, of trust dated January 17, 1931, and as such owners of immoveable property situate at Tarde junction in Bombay. A considerable part of this piece of property was desired by the Controller of Supplies for a storage area for motor vehicles, spare parts, etc. , and in the month of March, 1942, got possession of the portion of land under an agreement to lease. Subsequent to that and before the lease could be executed, the Collector of Bombay served an order on the petitioners on April 1, 1942, under Rule 79 of the Defence of India Rules under a certain (Notification of the same date whereby the piece of land Was requisitioned from the date of the said order. THE petitioners pointed out that the property had been taken possession of by the Department of Supply, Central Government, under the agreement to lease. On May 4, 1942, the Controller of Supplies was addressed a letter by the petitioners forwarding the agreement to lease for his approval. On December 3, 1942, the petitioners received a letter from the Controller of Supplies informing them that the Collector of Bombay had served on April 1, 1942, on the petitioners a requisition order and the requisitioning authority would pay the petitioners as owners rent for the property payable by the requisitioning authority, namely, the Collector of Bombay THE Controller further informed the petitioners that the Government of India had concluded with the Government of Bombay in that behalf an arrangement whereby the Government of Bombay would lease to the Supply Department, Government of India, such portion of the requisitioned property as the Supply Department may require and that the factum of the requisition had put an end to all existing contracts, leases, etc. and that therefore the Government of India could not hold the land from and after the date of the requisition order on lease from the trustees. On October 28, 1942, the Collector of Bombay served the petitioners with a notice which after referring to his order of April 1, 1942, further intimated to the petitioners that the property had been accquired pursuant to the requisition under Rule 75a of the Defence of India Rules under which the property had been requisitioned. THE Government thereafter invited the petitioners to file their claim for compensation for the acquisition of the said land by the Government and offered to pay Rs. 22,49,770 as compensation for the acquisition of the property plus Rs. 6,880 per month by way of rent from April 1, 1942, until the date of acquisition. THE petitioners thereupon intimated the Collector of Bombay that the amount offered was entirely inadequate and requested that the matter should be referred! to arbitration under Section 19 of the Defence of India Act and offered to receive the amount and accept the same under protest and without prejudice to all their rights and contentions. On May 20, 1944, the Government did pay and the petitioners did receive Rs. 22,49,770 which the petitioners say they have accepted under protest. On May 5, 1944, the petitioners' solicitors wrote to the Collector of Bombay reminding him about the arbitration to be held and the delay caused. Further correspondence ensued in which the petitioners from time to time reminded the Collector of Bombay about the inadequacy of compensation and enquiring what steps had been taken for referring the matter to arbitration. A further reminder was sent by the petitioners' solicitors on July 1, and it is important to note that on July 8 the petitioners' solicitors wrote that one assessor should be appointed by the Government and one by the petitioners to assist the arbitrator. THE Government intimated the petitioners by their reply dated July 14 that they had appointed an expert to assist the arbitrator under Section 19 (c) of the Defence of India Act.

(2.) THE petitioners were thereafter intimated that the Government of Bombay had appointed Mr. Noronha, Chief Judge of the Small Causes Court, Bombay, as arbitrator under is. 19 of the Defence of India Act to assess compensation payable to the petitioners. THE arbitrator fixed a date; for proceeding with the arbitration. In the meanwhile the petitioners had applied to this Court under the reliefs asked for on this petition. THE grounds on which reliefs are asked and which I shall refer to hereafter are numerous, but the main ground is that the appointment of the arbitrator is ultra vires the powers of the Government of Bombay. That in fact the requisitioning authority was the 'central Government and the acquisition was by the Government of Bombay. That the delegation of powers by the Central Government to the Provincial Government was ultra vires and that the acquisition was made for a collateral purpose, namely, to deprive the petitioners of their right, namely, the fifteen per cent, over and above the compensation that they would be entitled to under Section 23 (2) of the Land Acquisition Act. THE petitioners say that the order dated April 1, 1942, is ultra vires the Government of India Act and the order of acquisition dated October 28, 1942, is ultra vires the Government of India Act. That even if it were not ultra vires, it is void not being bona fide, namely, the acquisition being one for a collateral purpose, and they further maintain that both the appointment of Mr. Noronha as an arbitrator and the reference to him are ultra vires the Defence of India Act and the Government of India Act.

(3.) THE petition after setting out the grievance of the petitioners points out that the power to appoint an arbitrator is vested in the Central Government and not in the Provincial Government and also the rule making power to frame rules contemplated by Sub-section (2) and (3) of Section 19 of the Defence of India Act are the powers that can be exercised by the Central Government only, that the delegation! of such powers as regards the appointment of the arbitrator and as regards the delegation of powers to frame rules are ultra vires the Government of India. Further, they maintain that in these circumstances the petitioners are entitled to come to Court on these allegations for the issue; of a writ of certiorari against the respondent or a writ of prohibition against the respondent and the respondent may be directed by an order and injunction of this Court under Section 45 of the Specific Relief Act to forbear the further exercise of jurisdiction as an arbitrator. THE petitioners have served the Government of Bombay with a notice under Section 80 of the Code of Civil Procedure dated August 17, 1944, in which all these grounds in detail are set out and they say further that they propose to file a suit for a1 declaration that Rule 75a of the Defence of India Rules is illegal and invalid, for a further declaration that the order of the Collector of Bombay dated October 28, 1942, is ultra vires, illegal and not effective, for a. further declaration that the possession is illegal, wrongful and unjustified and amounts to wrongful occupation of the petitioners' property, for an order handing over possession of the property to the petitioners, for fixing of the sum at Rs. , 20,000 per month as compensation for wrongful use and occupation and for an injunction against the defendants to the suit from proceeding with the arbitration under Section 19 of the Defence of India Act. THEy further say that the facts stated in that notice constitute the petitioners' cause of action and that they may take such further steps to stop the arbitration proceedings as they may be advised.