RATANCHAND HIRACHAND Vs. DRPRADHAN

JUDGEMENT

(1.) These are several petitions presented by different parties for writs of certiorari in respect of orders of requisition passed under Ordinance No. V of 1947, being the Bombay Land Requisition Ordinance, 1947. A common question of law of considerable importance arises in these petitions, namely, whether the Governor of Bombay had any authority to promulgate the Ordinance, and, therefore, my learned brother Coyajee J. directed that notice should be given to the Dominion of India, and the Advocate General of India has appeared before me on behalf of the Dominion of India. I decided to try this question as a preliminary issue in these matters and I have heard parties thereon. The matter arises in this way:

(2.) Ordinance No. V of 1947 is made under the authority conferred on the Provincial Legislature to enact laws with respect to requisition of land by a notification of the Governor General of India being the Government of India, Ministry of Law, Notification No, F311-47-C. & G. dated October 21, 1947. It is contended that the Governor General had no authority to issue this notification under Section 104 of the Government of India Act, as he has purported to do, and that consequently the Governor of Bombay did not derive any authority to make the Ordinance.

(3.) In order to consider how far this argument is well-founded one has got to go back to the provisions of the Government of India Act. That Act provides for the distribution of legislative powers between the Dominion Legislature and the Provincial Legislature. In the seventh schedule to that Act are set out, in three parts, matters in respect of which the Dominion Legislature, the Provincial Legislature and both the Legislatures can legislate, being the Federal Legislative List, the Provincial Legislative List and the Concurrent List respectively. But, exhaustive as these lists were intended to be, they could not conceivably comprise every object of legislation; and, therefore, provision was made for residual powers of legislation under Section 104 of the Government of India Act. That section provided that with respect to any matter which was not enumerated in any of the lists in the seventh schedule the Governor General may by a public notification empower either the Dominion Legislature or the Provincial Legislature to enact laws. During the emergency created by the last war the Defence of India Act and the Defence of India Rules were made which contained powers for requisitioning property; but, it was held by my learned brother Bhagwati J. that those provisions regarding requisition were ultra vires inasmuch as requisitioning was not one of the matters enumerated in any of the three Lists in the seventh schedule of the Government of India Act. This created a somewhat serious situation as the Government had, for the emergency created by the war, requisitioned numerous properties for public purposes. Accordingly the India (Proclamations of Emergency) Act, 1946, was passed on February 14, 1946. That Act provides for the amendment of Section 102 of the Government of India Act. That section deals with the powers of the Dominion Legislature, if an emergency is proclaimed? but those powers were, under the Act as it then stood, limited to matters enumerated in the seventh schedule. The effect of the amendment was that during the period when a proclamation of emergency was in force the Dominion Legislature was empowered to make laws for any Province or part of a Province or for the whole of the Indian Dominion with respect to any matter not enumerated in the seventh schedule. This amendment was made to date back to the commencement of Part III of the Government of India Act, 1985, which was April 1, 1937; and power was given in the case of orders of Courts already made for a review of those orders on the footing that the law always was as set out in this amending Act.