Chagla, C.J:—
This is also an appeal against the judgment of Mr. Justice Bhagwati ordering the issue of a writ of certiorari against the three respondents. The same questions are involved in this appeal as were involved in Rao v. Advani,(2) and for the reasons given by us in that appeal the same consequences must follow in this appeal. But the order made by Government which is challenged is under s. 4(3) of the Ordinance and not under s. 3. It is not disputed that the premises which were requisitioned were not in existence at the date when the Notification was issued by the Provincial Government specifying the areas in which premises are situated to which s. 4 would apply, and the question that arises for determination is whether s. 4 would apply to premises which come into existence after the date of the Notification. Now, s. 4 refers to premises which are vacant on the date of such Notification or which become vacant after such date. They were certainly not vacant at the date of the Notification. Can it be said that they became vacant after the date of the Notification? In my opinion “become vacant” only applies to such premises as were in existence at the date of the Notification and not to premises which come into existence after the date of the Notification. This is clear from the language of s. 4(1) itself because it refers not to any premises but such premises, premises as are referred to in the earlier part of that sub-section. Therefore, in requisitioning premises under sub-s. (4) the Government were acting in excess of their jurisdiction. Their jurisdiction to requisition premises under sub-s. (4) is conditional upon the premises being vacant as provided by s. 4(1). This is also clear from the language of sub-s. (4) because the power to requisition is not with regard to any premises but the premises, and the premises can only be the premises referred to in s. 4(1).
Under sub-s. (4) also as under s. 3, an objective fact has got to be determined before an order of requisition can be made, and that objective fact is whether the premises are vacant or become vacant. The fact of premises being vacant or becoming vacant is not something which is capable of ascertainment by mere physical demonstration, because s. 4 defines what is the meaning of the expression “vacant”, and the premises are only vacant or become vacant (1) by the landlord ceasing to occupy the premises, (2) by the termination of a tenancy, (3) by the eviction of a tenant, (4) by the release of the premises from requisition, and (5) otherwise. It is unnecessary to consider whether “otherwise” is ejusdem generis with what goes before or not. But the fact remains that the Legislature has imposed upon the Government the duty to determine various facts and circumstances which go to constitute a vacancy as understood and defined by s. 4 of the Ordinance. Therefore, in my opinion, just as in the case of s. 3 an order of requisition made by Government under s. 4(3) is a quasi-judicial order, and Government having acted in excess of their jurisdiction a writ of certiorari has been rightly directed to be issued against them. For the same reasons given by us in Rao v. Advani the writ would not lie against respondents Nos. 1 and 4.
The learned Judge has also made an order apparently under s. 45 of the Specific Relief Act against respondents Nos. 1, 3 and 4, ordering them to hand over to the petitioner possession of the requisitioned premises. For reasons I have already given in Rao v. Advani, no order under s. 45 can be made against Mr. Rao and Mr. Vartak. With regard to the Province of Bombay s. 45 itself in terms precludes such an order being made against the Provincial Government. The result, therefore, is that the appeal will be allowed as against appellants Nos. 1 and 3 and with regard to the order made against appellant No. 2 the order will be maintained to the extent that a writ of certiorari has been directed against it, but the order will be modified by deleting from it the direction as to handing over possession.
The result, therefore, is that the appeal will be allowed as against appellants Nos. 1 and 3 and the appeal will be dismissed as against appellant No. 2.
As regards the costs of the petition, the costs will be paid by the Province of Bombay and not by all the respondents, as directed by the learned trial Judge. As far as the costs of the appeal are concerned the respondents have substantially succeeded and therefore the appellant must pay the costs of the appeal. Costs will be taxed on the basis of a long cause scale, with two counsel certified. Certificate under s. 205 of the Government of India Act to issue.
Tendolkar, J.:—I agree. I wish only to add that I have come to the conclusion that an act of requisition under s. 4 of the Ordinance is a quasi-judicial act, because this section imports the legal concept of vacancy as distinguished from the mere physical concept in the sense of non-occupation. Whether or not premises are so vacant is therefore a matter to be determined and the existence of a vacancy is a condition precedent to the exercise of the power of requisitioning. The case therefore falls within the ratio that I have attempted to lay down in my judgment in Rao v. Advani.
Attorneys for respondents: Gagrat & Co.
Attorneys for appellants: Little & Co.
Appeal allowed in part.
A.J.P