Tendolkar, J. - (1.)These are a number of rules for writs of certiorari and prohibition and orders under Section 15. Specific Relief Act against the Provincial Government, and also against the Secretary of the Health and Local Government Department and Page 1 of 6 Sayed Md. Abdullah Uraizee vs. P.V. Rao and Ors. (18.01.1949 - BOMHC) the Minister concerned, in respect of orders passed under Section 5, Bombay Land Requisition Act, 1948. In a recent judgment of a division bench of this Court; in Rao v. Advani, 51 Bom. L. R. 342: (A. I. R. (36) 1949 Bom. 277) to which I was a party, we have held that no proceedings lie either by way of writs of certiorari or prohibition or under Section 15, Specific Relief Act against a Minister or against a Secretary of the appropriate department in respect of the acts of the Provincial Government, and that writs of certiorari and prohibition can only be issued against the Provincial Government. The rules, therefore do not survive as against any parties other than the Provincial Government.
(2.)The question that has been raised as a preliminary issue for determination in these rules is whether a writ of certiorari lies in respect of an act of requisition under Section 5, Bombay Land Requisition Act, (Bom. Act XXXIII [33] of 1948). In the judgment of the Division Bench, to which I have referred above, we held that an order of requisition under Section 3, Bombay Land Requisition Ordinance (Order V [5] of 1947) was a quasi. judicial act, and was, therefore, subject to the prerogative writs of certiorari and prohibition. We came to that conclusion mainly on the ground that the power of requisition under Section 3 of the Ordinance was conditional upon the existence of a public purpose and the question as to what is a public purpose was not left to the discretion of the Provincial Government but had to be objectively determined. The learned Chief Justice in his judgment stated (p. 387):
"It can only exercise its power to requisition provided the land is being requisitioned for any public purpose. What is public purpose is not left to the opinion of the Government It is an objective fact which has to be determined by Government before it can exercise its power."
Later on in his judgment the learned Chief Justice pointed out (p. 392):
"It would be perhaps interesting to note that Government have subsequently taken to themselves wider powers under a subsequent legislation that has been passed with regard to requisition of land. [This no doubt is the Bombay Land Requisition Act, 1948.] Now, it is no longer necessary that the land should be requisitioned for a public purpose. It can be requisitioned for any purpose This means that before Government can requisition land they have no longer to determine as an objective fact the purpose for which land has got to be requisitioned. Not only the necessity and expediency is left to their discretion, but it seems even the purpose for which land is to be requisitioned."
In my judgment I stated (p. 408):
"If it were not intended that a public purpose should exist before the power to requisition can be exercised, the words 'for any public purpose' would be redundant or in any event the words would have been, as they now are, in Section 5, Bombay Land Requisition Act, 1948, 'for any purpose.' Whether a public purpose exists is a matter Page 2 of 6 Sayed Md. Abdullah Uraizee vs. P.V. Rao and Ors. (18.01.1949 - BOMHC) to be determined and not a fact of mere physical observation, for quite obviously the existence or otherwise of a public purpose is a mixed question of act and law. The act of requisition is, therefore, a quasi-judicial act unless the Ordinance indicates an intention to the contrary."

(3.)The section of the Ordinance which we had to interpret in the appeal was in the following terms:
"It is the opinion of the Provincial Government it is necessary or expedient to do so the Provincial Government may by an order in writing requisition any land for any public purpose."
Section 5 of the Act, which corresponds to this section, has two changes made in it. Instead of the words "to do so" in the Ordinance the words used in the Act are "so to do"; and instead of the words "any public purpose" the words used in the Act are "any purpose." The transformation of the words "to do so" into "so to do" does not to my mind make any difference to the meaning or effect of the section; but the substitution of the word "any" as qualifying "purpose" instead of "public purpose" surely makes a great deal of difference to the power of the Provincial Government. Whereas under the Ordinance the Provincial Government could not requisition any laud at all until there was a public purpose, under the new Act the Provincial Government has power to requisition land for any purpose which must of necessity imply an unlimited power. Had the section ended there, in view of the observations which I have cited in the judgments of the learned Chief Justice and myself, there would have been no doubt that the act of requisition under Section 5 of the Act was not a quasijudicial act. But to Section 5 of the Act there is a proviso and there is also another sub-section ; and it has been argued on behalf of the petitioners in these petitions that by virtue of this proviso and or this sub-section the power to requisition is subject to a condition precedent which has got to be determined judicially. The proviso is in these terms:
"Provided that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section."
As observed by Lord Macmillan in M. & S. M. Rly. Co. Ltd. v. Bezwada Municipality, 47 Bom. L. R. 587: (A. I. R. (31) 1944 P. C. 71) (p. 589):
"the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case."
Giving that effect to this proviso all that it does is to take away from the sphere of operation of the power of requisition the premises which have been actually resided in for a continuous period of six months. The proviso in my opinion does not constitute a condition precedent to the act of requisition; it is only a fetter on executive conscience. This becomes the more apparent Page 3 of 6 Sayed Md. Abdullah Uraizee vs. P.V. Rao and Ors. (18.01.1949 - BOMHC) when we consider Sub-section (2), Section 5, which is in these terms:
"Where any building or part thereof has to be requisitioned under Sub-section (1) the Provincial Government shall make such inquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, the landlord or the tenant has not so resided."