Chagla, CJ.

1. Government issued an order under S. 6 (4) (a) of the Bombay Land Requisition Act on 2-3-1951, requisitioning a flat situated in a trust property of which the petitioners are the trustees. The order stated that on inquiry it was found that the premises specified in the order had become vacant on or after the month of May 1950. The petitioners contention was that the order was not valid inasmuch as the premises which were sought to be requisitioned were not premises within the meaning of the expression used in the statute. The contention of the Government on the other hand was that it was not open to the Court to go behind the declaration made in the order and that once the Government had declared that the premises were vacant, the declaration was binding upon the Government both with regard to the vacancy of the premises and the fact that the premises were the premises as defined in the statute. The learned Judge below rejected the contention of Government and held that it was open to the Court to go behind the declaration with regard to the premises and issued the order sought for by the petitioners.



2. The first question, therefore, we have to consider is, what is the effect of a declaration made under S. 6 of the Act We must first look at the scheme of s.

6. That section deals with requisitioning of vacant premises. Sub-section (1) provides that it is incumbent upon the landlord to give intimation of any vacancy. Sub-section (2) provides for the manner in which the intimation has to be given. Sub-section (3) contains a prohibition upon the landlord from letting out the premises without the permission of the Government or till after a period of one month has elapsed from the date on which he has given intimation. Sub-section (4) confers upon the State Government the power to requisition premises which are vacant, and it provides :

"Whether or not an intimation under sub-s. (1) is given and notwithstanding anything contained in S. 5 the State Government may by order in writing -

(a) requisition the premises for the purpose of the State or any other public purpose ... or

(b) require the landlord to let the premises to specified persons or class of persons or in specified circumstances."

The order of requisition here made is under sub-cl. (a). Then there is a proviso to this section which casts a duty upon the Government to make an inquiry before making an order of requisition when no intimation of vacancy is given by a landlord under sub-s. (1), and it empowers the Government after making such an inquiry to make a declaration that the premises were vacant or had become vacant, and the proviso further lays down that such declaration shall be conclusive evidence that the premises were or had so become vacant. The question as to the conclusive nature of this declaration came up for consideration before a Divisional Bench of this Court and the judgment is reported in Mohsinali Mohamedali v. State of Bombay, 53 Bom LR 9

4. In that judgment the Court pointed out that the declaration is conclusive evidence of a vacancy having occurred as contemplated by the statute, and it is not merely conclusive evidence of any particular facts found by the Government, but it is conclusive evidence of the legal concept of vacancy as understood by the Legislature. Now, "premises" is defined in S. 4 (3) and the definition is that premises means any building or part of a building let or intended to be let separately, and we are not concerned with either sub-cl. (i) or (ii) for the purpose of this appeal.



3. The question that falls to be determined is whether when the Government makes a declaration that the premises were vacant or had become vacant, does the efficacy of the declaration apply not merely to the fact of the vacancy but also to the fact that the premises were the premises to which the Act applies. If we were to take first a purely grammatical view of the matter, what the declaration makes conclusive evidence is that the premises were or had so become vacant. What is made conclusive evidence is not that the premises are premises as defined by the statute and that they were or had so become vacant. Therefore, the emphasis placed by the Legislature is on the vacancy and not on the question as to whether the premises were the premises to which this Act applies. But there is another way of looking at the same question. The power of Government to requisition vacant premises under S. 6 is not an unlimited or uncontrolled power. It is a power which is conditioned by the limitations laid down in the Act itself, and before a valid order under S. 6 (4) can be made certain conditions have to be satisfied which are conditions precedent to the exercise of the power by the State, and the conditions are that the requisition must be for a public purpose, that only those premises can be requisitioned to which the Act applies, and the premises must be vacant. No inquiry can be held under S. 6 (4) except with regard to premises which are premises according to the definition in the statute, no declaration can be made except in respect of premises which are premises as defined by the statute, and finally, no order of requisition can be made unless it is an order relating to the premises defined by the statute.

Therefore, when reliance is placed upon the declaration and it is contended that the declaration is conclusive, the declaration must be one which the Government is entitled to make under S. 6 (4), and if it is shown that the premises are not the premises as defined by the Act, the Government cannot rely upon the conclusive nature of a declaration which is made without proper authority. Therefore, it is futile to contend that it is not open to the Court to go behind the declaration not only with regard to the fact that the premises are vacant, but even with regard to the fact that the premises are the premises to which the Act applies, because it would be the duty of the Court to be satisfied that the condition precedent to the exercise of the power has been satisfied, and if the condition precedent is that only premises as defined can be requisitioned, then failure to comply with that condition would deprive the State of its power to act under S. 6 (4).As we said before, the power conferred under S. 6 (4) consists of the power to make an inquiry, the power to make a declaration, and ultimately the power to issue the order. The exercise of power under all these three heads depends upon the condition precedent being observed, and if that condition precedent has not been satisfied, the exercise of power is clearly bad. Therefore, if we are satisfied in this case that the premises are not the premises to which the Act applies, not only is the order of requisition itself bad, but all that preceded it and which led up to the passing of that order is equally bad.



4. But a more interesting and able argument was advanced by Mr. Seervai as to the power of this Court to issue a writ of mandamus on facts which have been established in this case. Mr. Seervais contention - and I hope I am being fair to him - is that even if it were established that the Government were acting outside the ambit of the statute, even if it were established that the Government were requisitioning premises to which the Act did not apply and in respect of which they had no power to requisition, the Court cannot issue a writ of mandamus, because what the State is doing is an executive act and an executive act cannot be controlled by a writ of mandamus. Mr. Seervai says that a writ of mandamus is issued against Government only in certain limited class of cases. The eases according to him are, where an officer of Government is required to do a precise ministerial act under a statute and there is a failure on the part of the officer to do that act, or there is a precise formality prescribed before an executive act can be performed and if the officer fails to perform the act or that precise formality, the Court will interfere and compel the officer to perform the act or the formality. But according to Mr. Seervai, apart from these two cases, whatever other rights there may be against Government, the Court will not interfere with the executive acts either of Government or its officers. Prima facie, this seems to be rather a startling proposition, but even startling propositions have got to be tested and examined, and the question is whether there is any principle or authority which can justify this proposition.

5. Before we deal with the authorities, let us try and understand what is the nature of a writ of mandamus and what similarity it has with a writ of certiorari and whether any parallel can be drawn between these two writs. The main and principal object of a writ of mandamus is to compel Government or its officers to carry out their statutory obligation. We may put it in a different way. The duty of the Court is to see that Government or its officers do not overstep the limits and the bounds that the statute has prescribed for the exercise of their power. If the Legislature lays down that the power cannot be exercised except on the satisfaction of certain conditions and the officer exercises the power although the condition are not satisfied, the Court will intervene and prevent the officer from acting contrary to the statute. The whole object of the Court is to see that the mandate which the Legislature has given to Government or its officers is carried out and if the Court finds that the mandate is not carried out or is being violated, the Court will pull up the Government or the officer and compel them to obey the mandate which the Legislature has issued. A writ of certiorari, it need hardly be stated, is issued only to persons or bodies discharging judicial or quasi-judicial functions and it is issued when the person or the tribunal acts in excess of its jurisdiction or fails to exercise jurisdiction which is conferred upon it or in the exercise of its jurisdiction contravenes the principles of natural justice. Mr. Seervai has rightly conceded that if a tribunal wrongly decides what might be called collateral or jurisdictional facts, the existence of which alone confers jurisdiction upon the tribunal, a superior Court would interfere and correct the tribunal exercising judicial powers. On the other hand, if the tribunal is deciding facts in issue or facts the decision of which is within its jurisdiction and for the purpose of which it has been created, then however wrong the decision on the facts may be, because the decision is within the jurisdiction of the tribunal the superior Court will not interfere. Therefore, a clear line of demarcation is drawn, as far as writs of certiorari are concerned, between cases where the Court will interfere and cases where the Court will not interfere. Now, we fail to see what is there in principle, and we think there is none in authority either, why the same principle should not be applied to officers exercising the power conferred upon them by statute. If the power is unlimited, the Court undoubtedly cannot interfere. If certain matters are left to the discretion of the officer, the Court cannot control that discretion unless the discretion is arrived at mala fide or is not a proper exercise of discretion. But if the power is not unlimited, but is a power conditioned by limitations, then, in our opinion, the limitations or the conditions precedent occupy the same position as collateral facts in the case of a tribunal exercising judicial or quasi-judicial functions. Just as the Court will interfere to correct collateral facts wrongly decided, the Court will also interfere when the officer exercises his power without satisfying the conditions precedent and thereby violates the mandate of the Legislature.



6. Now, Mr. Seervai has drawn a distinction which frankly we are not able to appreciate. Mr. Seervai says that when we have a case where an officer or the Government has to determine objective facts administratively, the Court cannot interfere with that determination. Mr. Seervai says that facts may be determined either judicially or quasi-judicially or administratively. When they are determined judicially and if they are collateral facts, the Court undoubtedly can interfere by a writ of certiorari. But according to Mr. Seervai, if objective facts are determined administratively, even if those facts constitute conditions precedent to the exercise of that power, however erroneous the determination may be the Court must accept that determination for the purpose of the issue of a writ of mandamus. Mr. Seervai says that the citizen is not deprived of his legal right to challenge that determination, but he can only challenge it by suit or by other legal proceedings; he cannot challenge it by a writ of mandamus. In our opinion, the fallacy underlying this argument is clear. There is a confusion of thought in failing to distinguish between the determination by an officer of an objective fact and a discretion conferred upon an officer with regard to a particular matter. It cannot be disputed that in the case of a discretion the Court cannot interfere by a writ of mandamus. But when the existence of an objective Eact is laid down as a condition precedent to the exercise of power, there is no question whatever of the exercise of any discretion by the authority which has got to be satisfied about the existence of that objective fact before the power is exercised. It may be, and very often it is so, that the objective fact has to be determined by a mental process. It may be that the determination of the objective fact may require not only a decision on questions of fact but even a decision on questions of law. But all the same the determination by the authority is not made final and is not made binding upon the Court. The objective fact must exist as a fact and it does not help the authority at all that it has determined that the fact exists. Its determination is entirely irrelevant because the condition precedent is made justiciable and the Court of law is entitled to go behind the determination of the authority of that fact and come to its own conclusion whether the fact exists or not. What Mr. Seervai really wants us to hold is that when an officer or an authority has to decide anything or determine anything before it could exercise its power, that decision or determination stands on the same footing as if it were left to the discretion of the authority whether a particular fact exists or not. In this particular case it is urged by Mr. Seervai that before Government can requisition any premises it has got to decide that the premises are the premises to which the Act applies. Mr. Seervai says that this objective fact is not capable of ascertainment by mere observation. It is a fact that can be arrived at only after some mental process on the part of Government or its officers, and therefore there is a determination by the Government that the premises are premises to which the Act applies, and once the determination is arrived at by the State, that determination cannot be challenged by a writ of mandamus although it may be challenged by a suit or by other proper legal proceedings. Mr. Seervai further says that in determining whether the premises are premises to which the Act applies, the Government is performing an executive function and not a ministerial function and in the exercise of such executive function the Court should not interfere by a writ of mandamus.



7. Now, let us look at the authorities on which Mr. Seervai relies in support of his contention. Very strong reliance is placed on the judgment of the learned Chief Justice in Province of Bombay v. Khushaldas S. Advani, 53 Bom LR 1 (SC). In that case the learned Judges of the Supreme Court were considering an order made under S. 3, Bombay Land Requisition Ordinance, 1947, which corresponded to S. 5 of the present Act, and what the Supreme Court held was that an order made under that section was an administrative or an executive act and not a judicial or a quasi-judicial act. In his judgment the learned Chief Justice pointed out that to the extent that the Provincial Government had to form an opinion that it was necessary or expedient to requisition any property, it was subjective fact, but to the extent that it had to be for a public purpose, it was not a subjective fact but an objective fact. At p. 8 the learned Chief Justice observes that "the decision of the Provincial Government about public purpose is therefore an administrative act," and what is relied upon by Mr. Seervai is that the learned Chief Justice refers to a decision of the Provincial Government with regard to the question of public purpose. Then the learned Chief Justice goes on (p. 8) :

" .... If the Government erroneously decides that fact, it is open to question in a Court of law in a regular suit, just as its action, on its decision on the facts mentioned in the proviso to S. 3 and in S. 4, is open to question in a similar way."

Mr. Seervai argues, and we think rightly, that what the learned Chief Justice said about public purpose equally applied to the other conditions precedent in the Act, viz. the existence of premises as defined by the Act or vacancy as required by S. 6 of the Act. In order to appreciate this observation of the learned Chief Justice, we must bear in mind that at the date when these observations were made the High Court had no power to issue a writ of mandamus against Government. Therefore, all that the learned Chief Justice was emphasising, with respect, was that public purpose was an objective fact to be administratively determined, that the decision of Government was not binding, and that decision could be challenged in a Court of law. At that date it could only be challenged by a suit and naturally therefore the learned Chief Justice could only refer to the particular remedy which was open to the subject. We refuse to look upon this observation as even a comment of the learned Chief Justice that in a case like this a writ of mandamus would not be issued by the High Court if the High Court had the power to issue such a writ. Perhaps the observations of Fazl Ali, J., at p. 10 may also be usefully referred to, and what the learned Judge says is that :

" . . . . The existence of a public purpose is the foundation of the power (or jurisdiction, if that term may appropriately be used with reference to an executive body) of the Provincial Government to requisition premises under S. 3, or, as is sometimes said, it is a condition precedent to the exercise of that power."

The same observation may be applied equally effectively to the existence of premises as denned by the Act. The existence of premises is as much the foundation of a power of the Provincial Government and as much a condition precedent to the exercise of that power as existence of a public purpose. Fazl Ali, J., also cites the observations of Lord Halsbury in Westminster Corporation v. London and North Western Rly., (1905) AC 426 (p. 427) :

"... Where the Legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorized: "

If requisitioning premises to which the Act does not apply is a thing which the Legislature has not authorised, then the authority which requisitions is acting beyond the ambit of the statute and the Court can restrain that authority from so acting.



8. Mr. Seervai then referred to two decisions of the Supreme Court of the United States. The first is reported in United States v. Black, (1888) 128 US 40. That was a case where the Commissioner of Pensions placed a certain interpretation upon the law in order to determine whether pension was payable to the petitioner, and reliance is placed upon the observations made by the Court in that decision. Mr. Justice Bradley who delivered the judgment of the Court referred to the well-known observations of Chief Justice Marshall in Marbury v. Madison, (1803) 5 US 137 to the following effect (p. 356):

". . . and the radical distinction was there pointed out between acts performed by such officers in the exercise of their executive functions, which the Chief Justice calls political acts, and those of a mere ministerial character; and the rule was distinctly laid down that the writ will not be issued in the former class of cases, but will be issued in the latter."

As Mr. Bradley, J., himself pointed out, the decision of Marbury v. Madison, turned on an entirely different point, and although this opinion of the Chief Justice, according to the learned. Judge, would always be read by students with interest and profit, it has not been considered as invested with absolute judicial authority. In that very decision Bradley, J., refers to another judgment in Kendall v. The United States, (1838) 37 US 524 and the learned Judge points out that there the Court held that the officer concerned could be compelled to do a certain act by mandamus because it was simply a ministerial duty to be performed and not an official act requiring any exercise of judgment or discretion. Therefore, the distinction that was drawn was between a ministerial duty and the exercise of judgment or discretion, and it is clear that the "judgment" here is used in the same sense as "discretion", something, which is left entirely to the opinion of the officer which opinion could not be controlled by the Court. Bradley, J., also cites the case of Decatur v. Paulding, (1840) 39 US 497 and the following passage that occurs in that judgment is very striking and significant :

". . . Nor can it (i.e., the Court), by mandamus, act directly upon the officer, or guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties."

Therefore, where an officer is invested by statute with the right of exercising his own discretion, the Court will not attempt to control that discretion while he is exercising the discretion in the discharge of his official duties. If we were satisfied that under the Requisition Act it was left to the discretion of Government to decide whether particular premises were premises to which the Act applied or not, we would certainly not control that discretion by issuing a writ of mandamus. But when admittedly no discretion is given to the Government and when the question as to whether the premises or the premises to which the Act applies is to be determined as an objective fact, the question with regard to the issuing of a mandamus stands on an entirely different footing.



9. The second case on which Mr. Seervai relied is reported in Admas v. Nagle, (1937) 303 US 532 and the observations relied upon are at p. 100

6. Roberts, J., who delivered the judgment of the Court states:

". . . Where a statute vests no discretion in an executive officer bat to act under a given set of circumstances, or forbids his acting except upon certain named conditions, a Court will compel him to act or to refrain from acting if he essays wholly to disregard the statutory mandate; but if a discretion is vested in him, and he is to act in the light of the facts he ascertains and the judgment he forms, a Court cannot restrain him from acting on the ground that he has exceeded his jurisdiction by reason of an error either of fact or law which induced his conclusion."

In our opinion, these observations, far from helping Mr. Seervai, are entirely contrary to the contention which he is trying to advance. We have exactly the case here where the statute forbids Government from acting excepting upon certain named conditions, and one of the named conditions is that a requisitioning order can only be made with regard to premises to which the Act applies, and if the Government acts contrary to the statutory mandate, as the learned Judge of the Supreme Court points out, the Court will compel him to refrain from acting in disregard of that mandate. The latter part of the observations on which Mr. Seervai relies deals with a case where discretion is vested in him and if in the exercise of that discretion he forms a particular judgment, then that judgment is not subject to the challenge of the Court. A distinction should also be made with regard to a case where a statute casts a statutory obligation upon an officer to decide something. Then the Court will not interfere where his decision is wrong or erroneous, because the obligation is upon him to decide, and the Court will only interfere if he refuses to decide what the statute requires him to decide. But in the Requisition Act there is no obligation upon the Government to decide anything. The obligation upon the Government is to requisition premises only upon named conditions and it is the violation of that obligation which is sought to be prevented by a writ of mandamus.



10. Mr. Seervai also relied on a recent decision of the Privy Council in Nakkanda Ali v. M.F. De S. Jayaratne, 1951 AC 6

6. That was an appeal from the Supreme Court of Ceylon, and the Controller of Textiles in that country cancelled the appellants textile license under Regulation 62 of the Defence (Control of Textiles) Regulations, 1945, and the cancellation was challenged by the appellant. Regulation 62 provided that where the Controller had reasonable grounds to believe that any dealer was unfit to be allowed to continue as a dealer, he could cancel the license, and the Privy Council held that these words must be treated as imposing a condition that there must in fact exist such reasonable grounds known to the Controller before he could validly exercise the powers of cancellation. Lord Radcliffe delivering the judgment of the Board points out (p. 77) :

"However read, they (i.e., these words) must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power."

Although they point out that if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. But in any event the Privy Council did realise that the condition which the Legislature had laid down was a condition that limited the power of the authority. Here also the power to requisition is not an arbitrary power, it is a power which is circumscribed by several limitations, and one of the most important limitations is that the Government can only requisition premises to which the Act applies. Therefore, in our opinion, if the Court is satisfied that Government or any Government officer is acting contrary to statute or is contravening the limitations laid down upon the exercise of his power, the Court would interfere by a writ of mandamus and compel him to forbear from so acting.



11. Mr. Seervai has relied on Art. 226 of the Constitution for the purpose of urging that a distinction must be drawn between cases where the High Court issues a writ of mandamus against the Government and cases where it issues a writ against any other person or authority. We are asked to look at Art. 32 and compare the language used by the Constituent Assembly when it conferred the power of issuing writs upon the Supreme Court and the language used in Art. 226 when it conferred a similar power upon the High Court. Sub-clause (2) of Art. 32 provides :

"The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

Therefore, the power of the Supreme Court to issue a writ is limited to the purpose of enforcing fundamental rights. The Supreme Court has no power to issue a writ for any other purpose. It is true that no qualification or limitation is laid down in this article as to the person or authority against whom the Supreme Court can issue a writ, and obviously the Supreme Court has ample jurisdiction to issue a writ against any person or authority including a Government. Now, as far as Art. 32 was concerned, the Constituent Assembly was writing on a clean slate. The power to issue writs was conferred for the first time upon the Supreme Court because the Court itself was set up for the first time under the Constitution. But when we come to the High Court, the Constituent Assembly was not oblivious of the long history which lay behind the High Courts of this country, and, as it is well known, the High Court had never the power to issue a writ of mandamus against Government. That power was conferred for the first time by Art. 226, and the power has been conferred in the following language :

"Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of the rights conferred by Part III and for any other purpose."

It should be noted that these writs can be issued by the High Court not only for the enforcement of fundamental rights, but also for any other purpose. What is emphasised by Mr. Seervai is the fact that when dealing with Government the Constituent Assembly has qualified the right of the High Court by saying that the writ can only be issued in appropriate cases. Mr. Seervai reads this qualification as language of limitation and he asks us to give some effect to this provision in the Constitution. We must frankly confess that the language "in appropriate cases" used by the Constituent Assembly is not very happy. We take it that the High Court can issue writs even against any authority or person only in appropriate cases. But the reason for emphasising the fact that writs should be issued against any Government only in appropriate cases seems to be obvious. The power was given to the High Court under this article not only to issue writs against the Government of the State in which the High Court was situated, hut the power was given to issue writs against any Government which would include the Government of India or the Government of any other State, and the Constituent Assembly has sounded a note of warning that when the High Court travelled outside its own territorial jurisdiction, it should be careful in issuing writs against other Governments. It is unnecessary finally to pronounce on this matter, but it may be that the jurisdiction of the High Court to issue writs against other Governments may be of a more limited character than the jurisdiction of the High Court to issue writs against the Government of the State in which it is situated. It is only from this point of view that this qualification must be understood and construed.

1

2. Mr. Seervai has made an appeal to us that, apart from any authority, the writ of mandamus being discretionary, we should consider whether we should not put a limitation upon our own wide power and jurisdiction. Mr. Seervai says that it is impossible for any State to function if there is a constant interference by the High Court in the executive acts performed by the officers of the State. It may be that interference by the High Court may result in inconvenience or difficulty in administration. But what we have to guard against is a much greater evil. When we find in the modern State wide powers entrusted to Government, powers which affect the property and person of the citizen, it is the duty of the Courts to see that those wide powers are exercised in conformity with what the Legislature has prescribed. We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the Legislature. Therefore, far from interfering with the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign Legislature has not been obeyed and powers have been assumed which the Legislature never conferred upon the executive.



1

3. The final point urged by Mr. Seervai is a question relating to the law of evidence. What happened in this case was that the petitioners alleged that the premises in question were never let or intended to be let and that the person who was occupying the flat which was requisitioned, one Mr. Sanghavi, was a licensee and not a tenant. These facts were controverted by the State in their affidavit in reply. When the matter came before the learned Judge below, he took the view that the burden of proving that the premises requisitioned were premises to which the Act applied lay upon the Government and therefore the Government should lead evidence to establish the fact. Mr. Seervai contended before the learned Judge that the burden of proving that the premises were not the premises to which the Act applied was upon the petitioners and they should be asked to lead evidence. Although the learned Judge did not accept this contention, Mr. Seervai led no evidence and on that the learned Judge held that the facts alleged by the petitioners had been proved. Now, the question is, on these facts and on these averments, on whom lay the burden of proving that the premises requisitioned were the premises which the Government had the authority and power to requisition One must understand the real nature of the petition filed by the petitioners in order to decide the question of burden of proof. Admittedly the petitioners are the legal owners of the property requisitioned. That fact is not challenged, nor has it been controverted. Their real grievance, which they have come to ventilate in this Court, is that the Government has deprived them of their property otherwise than by authority of law, and they also contend that the order made under the Land Requisition Act is not a valid order. The law does not entitle the Government to deprive any citizen of his property. If the Government deprives him of any property, the Government must justify that the deprivation was by authority of law. As the title of the petitioners is not disputed, nor is the deprivation disputed, in our opinion the burden lay clearly upon Government to justify the deprivation by satisfying the Court that the deprivation was by authority of law. The question may be looked at from another point of view. The real issue that arose for the determination of the Court below was whether the order made under the Land Requisition Act was a valid order. The Government justified the deprivation of the petitioners property by relying upon the order they had made under the Land Requisition Act. If Government relied upon that order, it was for Government to establish the validity of that order. Surely, it could not be said that the petitioners had to establish that the order was invalid. In order to establish the validity of the order, Government had to satisfy the Court that the conditions precedent to the exercise of the power had been complied with, and one of the conditions precedent was that the premises in question were premises to which the Act applied. Therefore, it was for Government to prove that the premises which they had requisitioned were premises to which the Act applied and which they had authority in law to requisition. Mr. Seervai has relied on S. 101, Evidence Act, which provides : "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."

Mr. Seervai says that it is the petitioners who want a judgment in their favour, who want to establish their legal right to property, and therefore it is for them to prove that the order made by Government is not a valid order and that the premises which are requisitioned are not premises to which the Act applies. In our opinion, that is not the correct application of that section to the facts of this case. The legal right of the petitioners to the property is not in dispute. It is the Government who say that although the property is the property of the petitioners they have a right to exercise acts of ownership in respect of that property. It is the Government who say that they have a right to deprive the petitioners of the use of that property. It is, therefore, the Government who are asserting a legal right qua this property, and under S. 101 it is for them to establish that legal right. If they fail to establish that legal right, then the petitioners must succeed. In our opinion, therefore, the learned Judge below was right in the conclusion to which he came, viz., that the burden of proof lay upon the Government. As the Government led no evidence to discharge that burden of proof, the learned Judge was also right in holding that the petitioners must succeed because Government have failed to show how they were justified in depriving the property of the petitioners by authority of law.

1

4. We would, therefore, dismiss the appeal with costs. Order stayed for a fortnight.

Appeal dismissed.