KAIKHUSROO PHIROZSHAH DOCTOR Vs. STATE OF BOMBAY
LAWS(BOM)-1954-8-7
HIGH COURT OF BOMBAY
Decided on August 20,1954

KAIKHUSROO PHIROZSHAH DOCTOR Appellant
VERSUS
STATE OF BOMBAY Respondents





Cited Judgements :-

UNION OF INDIA UOI VS. FIRM RAM GOPAL HUKUM CHAND [LAWS(ALL)-1960-1-16] [REFERRED TO]
K RAMCHANDRA RAO VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2009-9-7] [REFERRED TO]
SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS WEST BENGAL ON BEHALF OF THE STATE OF WEST BENGAL VS. D SURYA RAO [LAWS(CAL)-1969-7-21] [REFERRED TO]
TAHA ABDUL RAZAK HAMADI OF KURBALA VS. STATE OF MAHARASHTRA [LAWS(BOM)-1984-10-19] [REFERRED TO]
BHANU M VAKIL VS. CHANDRA OSHIRAM KESWANI [LAWS(BOM)-1990-3-100] [REFERRED TO]
EL NOIL HELLENIC PETROLEUM CO S A VS. M V ANNY L [LAWS(BOM)-1999-4-46] [REFERRED TO]
BHANU M VAKIL VS. CHANDRA OSHIRAM KESWANI [LAWS(BOM)-1990-3-145] [REFERRED]
STATE OF GUJARAT VS. UNION OF INDIA [LAWS(GJH)-2018-5-92] [REFERRED TO]
PRYSMIAN CAVI E SISTEMI VS. VIJAY KARIA [LAWS(BOM)-2019-1-3] [REFERRED TO]
SARINE TECHNOLOGIES LTD VS. DIYORA AND BHANDERI CORPORATION [LAWS(GJH)-2020-1-116] [REFERRED TO]


JUDGEMENT

Chagla, C.J. - (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):
"Our power to make such an order was not questioned but it was said that when the Legislature states that the orders of a Tribunal under an Act like the one here shall be conclusive and final (Section 105), then we should not interfere. It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away or whittled down by the Legislature. So long as these powers remain, our discretion and that of the High Courts is unfettered."
Now, with respect, this is a proposition of law to which expression has been given on several occasions by this Court also and in effect what the Supreme Court says is that if the Legislature attempts to make the decision of any tribunal final, it cannot by doing so prevent the High Court from issuing the proper writ either under Article 226 or under Article 227. In this particular case the Supreme court was dealing with Article 226 because the election 'tribunal was a judicial tribunal and the view taken by the Supreme Court was that there was an error apparent on the face of the record. Therefore, by making the decision of the election tribunal final the Legislature could not prevent either the High Court or the Supreme Court from interfering by a writ of certiorari in a case where a writ of certiorari could properly be issued. In 'Mohsinali's case (A)' We laid down identically the same proposition. Although we held that the declaration under Section 6(4) was conclusive and binding, we were at pains to point out that in a proper case the Court would Have interfered with a writ of certiorari. The Supreme Court has subsequently held that the order of requisition is an administrative order and not a quasi-judicial order. But even so, although the declaration made under Section 6(4) may be final and conclusive, it will not prevent the Court from interfering under Article 226 if in the opinion of the Court a writ of mandamus would properly lie, because if the order is an administrative order, the only way the Court can interfere with such an order would be by a writ of mandamus. Therefore, it is difficult to understand how this observation of the Supreme Court has in any way affected Mohsinali's decision (A) or the principle of law enunciated in that decision. The power of this Court under Article 226 remains unimpaired notwithstanding the fact that a declaration as to vacancy has been made conclusive by Section 6(4), Land Requisition Act. But the question that we have to consider is, what is the proper case in which the Court will issue 9 writ of mandamus when a declaration as to vacancy has been made under Section 6(4)?


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.