Das, J.:— This is a rule calling upon the respondent, who was and is the Additional land Acquisition Collector of Calcutta, to show cause why he, his servants and agents should not forbear from enforcing the order made by him on 29th November 1944 in case No. R. 574 of 1944 and why the said order should not be cancelled and why a writ of certiorari should not be issued against him calling upon him to produce before this Court the records and proceedings relating to the requisition of Continental Hotel situated at No. 12, Chowringhee Road. On 5th December 1944, when this rule was issued, an interim injunction was also granted restraining the respondent, his servants and agents from enforcing or taking any steps in pursuance and furtherance of the said order.

2. The material facts may be shortly stated as follows: For more than 30 years last past the petitioner has been carrying on business as a hotel-keeper under the name and style of Continental Hotel at No. 12, Chowringhee Road, within the jurisdiction of this Court. He pays Rs. 4000 per month to the landlord as rent besides rates and taxes. This business is his sole business and means of livelihood and he lives on the premises with his family. The whole of the ground floor was until October 1948 used as a restaurant and lounge where-food and drinks used to be served to customers who were mainly military people. On the first floor during normal times there was accommodation for 29 persons in 6 double bedrooms and 17 single bedrooms. Ever since the commencement of the present war large numbers of military personnel have come to Calcutta and in order to accommodate a larger number of them the petitioner installed 4 beds in each of the double bedrooms and 2 beds in each of the single bedrooms. At present there is accommodation for 59 persons as boarders and lodgers in the hotel. There are only 7 permanent boarders and lodgers in the hotel. There are only 7 permanent boarders each of whom has been there for a number of years and the rest of his customers mainly consist of military personnel. In his letter addressed to the Chairman, Requisitioning Board, a copy of which is annexed to the respondent's affidavit, it is stated that the petitioner employs over 300 persons for carrying on this business.

3. In October 1943 the best part of the ground floor of the said hotel (10,030 sq. ft.) was requisitioned and the same is being run as a canteen for the entertainment of the armed forces. While the settlement of the petitioner's claim arising out of the aforesaid requisition was under consideration a request was, received from the military authorities on 13th June 1944, for requisitioning the remaining portion of the Continental Hotel. Accordingly on 15th June 1944, Mr. A.K Ghosh, I.C.S, Secretary, Requisitioning Board, gave notice of such request to the petitioner and called upon him to attend before the Board on 20th June 1914 if he desired to make any representation. The petitioner wrote a letter to the Chairman Requisitioning Board to which I have already referred. In this letter the petitioner set forth his objections to the proposed requisitioning of the entire Continental Hotel. On 20th June 1944, the petitioner appeared before the Board and stated his objections. The petitioner heard nothing further in the matter for several months. In the meantime in the beginning of November 1944 petitioner through his Solicitors Messrs Fowler & Co., complained of the delay in the settlement of the petitioner's claim of the requisition of the ground floor. On 18th November 1944, the respondent asked the solicitors to call at his office with the petitioner on 21st November 1944. There was an interview between the respondent, the petitioner and his solicitor on the appointed day when an agreement in writing recording the terms of settlement of the petitioner's claim was signed. A letter was written by the respondent to the Accountant General, Bengal, to expedite payment. In fact on 29th November 1944 a part payment was made to the petitioner. On the same date the impugned order for requisition of the remaining portion of the Continental Hotel was made by the respondent. This order was served on the petitioner on 1st December 1944. The petitioner applied for and obtained the present rule and interim injunction on 5th December 1944. A gentleman of the name of Mr. C.D Lettington and his wife called at the Continental Hotel on 13th December 1944 for the purpose, as they informed the petitioner, of taking charge of this portion of the Continental Hotel and running the hotel for the authorities. In view of the interim injunction, however, they could not take over charge of the hotel. In the petition used in support of the rule and in the affidavit in reply of the petitioner it was charged that the impugned order had been made by the respondent mala fide and in pursuance of the threat said to have been held out by him at the interview held on 29th November 1944. At the hearing before me, learned counsel appearing in support of the rule said, and in my opinion quite properly, that he would not pursue the charge by going into the disputed facts on which the charge was founded but would base his arguments on the terms of the Defence of India Act and the rules made thereunder and on the meaning and effect of the impugned order and its validity in law. This relieves me of the necessity of examining and scrutinising the allegations of facts set forth in the petition and the affidavits filed herein.

4. Section 2(1) of the Defence of India Act, empowers the Central Government, by notification in the Official Gazette, to make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Sub-section (2) of this section lays down that without prejudice to the generality of the powers conferred by sub-s. (1) the rules may provide for or may empower any authority to make orders providing for all or any of the 35 matters specified therein. Sub-section (3) of that section enacts, amongst other things, that the rules made under sub-s. (1) may further confer power and impose duties upon the Central Government and any Provincial Government or officers and authorities of those Governments as respects any matter, prescribe the duties and powers of public servants and other persons as regards preventing the contravention of, or securing the observance of, the rules. Sub-section (4) authorises the Central Government to direct that any power or duty which by rule under sub-s. (1) is conferred or imposed upon the Central Government shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised by any officer or authority sub-ordinate to it or by any Provincial Government or by any officer or authority sub-ordinate thereto or by any other authority. Sub-section (5) confers like power of delegation on the Provincial Government. Under S. 2 the Central Government made rules which are grouped under different heads in 18 parts. Rule 75A under which the order complained of was made was by notification dated 25th April 1942, inserted in Part XIX of the Rules which deals with “Essential supplies and works.” Clauses (1) (omitting the proviso which is not material for our present purpose), (2) and (5) of this rule are in the following terms:

“(1) If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property, movable or immovable and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning.

(2) Where the Central Government or the Provincial Government has requisitioned any property under sub-r. (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the Official Gazette, a notice stating that the Central or Provincial Government, as the case may be, has decided to acquire it in pursuance of this rule.

(5) The Central Government or the Provincial Government may, with a view to requisitioning any property under sub-r. (1) or determining the compensation payable under sub-r. (4), by order:

(a) require any person to furnish to such authority as may be specified in the order such information in his possession relating to the property as may be specified; (b) direct that the owner, occupier or person in possession of the property shall not without the permission of Government dispose of it (or where the property is a building, structurally alter it) (or where the property is movable remove it from the premises in which it is kept) till the expiry of such period as may be specified in the order.”

5. A copy of the Government of India notification dated 27th February 1943 over the signature of the Secretary to the Government of India and published in the Gazette of India was handed up to me by learned counsel for the petitioner. There is no dispute as to the correctness of this copy. The notification runs as follows:

Notification No. 6-Dc (1)/43 — In exercise of the powers conferred by sub-s. (4) of Section 2 of the Defence of India Act, 1939 (35[XXXV] of 1939), the Central Government is pleased to direct that the powers conferred on it by R. 75A, Defence of India Rules, shall, in respect of any land and any building, part of a building, or other premises together with any fixtures, fittings and furniture or other things therein, be exercisable also by the Additional Land Acquisition Collector, Calcutta, and 24 Parganas, within the town of Calcutta and its suburbs and in the District of the 24 Parganas.”

6. In exercise of the powers thus delegated to him by or under the aforesaid notification the respondent, who is the Additional Land Acquisition Collector of Calcutta and 24 Parganas, made the impugned order on 29th November 1944. The order is in the following terms:

“Whereas in my opinion it is necessary and expedient, for securing the defence of British India, the efficient prosecution of the war, to requisition the buildings together with the compound thereof (and all fixtures, fittings, furnish therein) described in the schedule below and to make the following orders in connection therewith.

Now, therefore, in exercise of the powers conferred by sub-rr. (1), (2) and (5) of R. 75A, Defence of India Rules, which have been directed under sub-s. (4) of Section 2 of the Defence of India Act, 1939, (35[XXXV] of 1939), to be exercised by me, I make the following orders namely:—

Mr. Mackertich John of the premises…… the owner of the said buildings, (a) shall place the said buildings, at the disposal and under the control of Land Acquisition Collector, Calcutta, on and from 6th December 1944 at 10-30 A.M, until six months after the termination of the present war unless relinquished earlier; (b) shall furnish to the said Laud Acquisition Collector, Calcutta, such information in his/her/their possession relating to the said buildings, as the said Land Acquisition Collector, Calcutta may by an order in writing specify; and (c) shall not, without the permission of the said Land Acquisition Collector, Calcutta, in any way dispose of the said buildings as long as this order remains in force.

The schedule of land and building.— Remaining portion of the Continental Hotel, 12 Chowringhee Road, which had not been previously requisitioned.”

7. Mr. Chatterjee argued that R. 75A provides for two things: (i) formation of opinion regarding certain specified matters by the Central Government or the Provincial Government and (ii) the making of the specified order or orders. No order could be made unless and until the Government concerned formed the necessary opinion. The formation of the opinion ms mandatory. The Government concerned must apply its mind to the necessity or expediency for securing certain specified objects. It must at the same time bear in mind the inhibition laid down in S. 15 of the Act, namely, that ordinary advocations of life and the enjoyment of property should be interfered with as little as might be consonant with the purpose of ensuring the public safety and interest and defence of British India. Bearing both things in mind it should form its opinion and it is only when this opinion was formed in favour of making the order that the order should be made. This obligation of forming the requisite opinion, argued Mr. Chatterjee, was a duty cast upon the Government. Therefore, R. 75A imposed a duty and conferred a power. Section 2 sub-ss. (4) and (5) empowered respectively the Central Government and the Provincial Government to delegate any power or duty, which was by any rule made under sub-s. (1) conferred or imposed on it, to certain persons or authority. The Government concerned could delegate either the power or the duty or both. The notification in this case delegated only the grower but not the duty. Therefore, contended Mr. Chatterjee, the duty or obligation to form the requisite opinion was retained by the Government. The Government had to discharge this duty first and then the respondent could in exercise of the power make the order. The recital in the order showed that the respondent had formed certain opinions. The duty of forming the opinion not having been delegated to him his opinion did not count and was quite irrelevant. The Government had to form the opinion and, on the face of the order, that not having been done the order was illegal and void, for the essential prerequisite to the making of a valid order was absent. The argument is attractive but is, in my judgment, unsound on close examination. It is quite true that the formation of the opinion is absolutely necessary for the exercise of the power, but that does not mean that the one is totally independent of or unconnected with the other. I regard the obligation rather as a condition or qualification or limitation annexed to the power, a fetter imposed on the power, than as, by itself, a separate or independent duty irrespective of the power. In my judgment this obligation has no separate or independent existence or use of its own. It is, as I have said, in the nature of a condition or qualification or limitation annexed to the power and circumscribes the scope and limit of the power. It is an integral part of the power itself. The formation of the opinion and the making of the order are but one composite act. The discharge of the obligation to form the requisite opinion and the making of the order together constitute the valid exercise of the power. This being so, the delegation of the power carries with it its own limitation as part of itself and the delegatee must perform the one composite act, namely, the formation of the opinion and the making of the order. I agree with the learned Advocate-General that the expression “duty” in sub-ss. (4) and (5) of S. 2 refers to any substantive and independent duty that may, by the rules, be imposed on the Government concerned under sub-s. (3)(iv)(a) and (b) of that section. There is no question that the power has been validly and properly delegated to the respondent. After such delegation, the opinion must be that of the respondent and not of the Government and must, therefore, be formed by him. The order explicitly shows that the respondent formed his opinion. In my judgment, therefore, this part of Mr. Chatterjee's arguments must be rejected.

8. The learned Advocate-General contended that this application was not maintainable. No certiorari would lie because the respondent in acting under R. 75A was not a Court. This was not disputed by Mr. Chatterjee. The Advocate-General next contended that no mandamus could be granted. He referred me to the case in (1860) 29 L.J.Q.B 68.1 There the Commissioners of the Insolvent Debtors Court refused to recognise an assignment by the debtor. Then the assignee of the debtor obtained a decree in the Chancery Court upholding his assignment. The Lord Chancellor expressed the opinion that the applicant's title having been confirmed by the decree the duty of the Commissioners of the Insolvent Debtors Court became ministerial and an application could be made to the Court of Queen's Bench for a mandamus. The applicant thereupon made this application. The Court of Queen's Bench, however, held that the duties of the Commissioners were not ministerial but were judicial and therefore mandamus could not be granted. I do not see how this case helps the respondent. He cannot take up inconsistent positions. He resists certiorari on the ground that the order complained of is not a judicial order. He cannot turn round and say that mandamus does not lie because the order is a judicial one and not merely a ministerial or executive act.

9. The learned Advocate-General then argued that the power having been validly delegated and the respondent having exercised the power in good faith, this Court should not substitute its own opinion for the opinion of the respondent and interfere with the order. He relied on the observations of Ameer Ali, J. in 45 C.W.N 4012 at page 405. It is now firmly established that where such power as is mentioned in R. 75A is given to any particular authority and the exercise of the power is only dependent on the opinion of that authority then the formation of the opinion by that authority is clearly a matter for executive discretion and cannot be questioned in a Court of law. The Court cannot investigate into the grounds or the sufficiency or otherwise of the materials or evidence on which that opinion is formed and substitute its own opinion for that of the authority concerned: see 1942 A.C 206.3 It is equally well established that if such power is exercised in bad faith or for a collateral purpose it is an abuse of the power and not in reality an exercise of the power and the Court can interfere with such colourable exercise of power. Where the issue is raised as to bad faith or collateral purpose the Court has to investigate the matter and decide the issue. I had occasion to deal with this aspect of the matter in my judgment in 48 C.W.N 7664 and I adhere to what I said in that case. In the case now before me, the good faith of the respondent is not challenged in the sense that the charge of ill-will sought to be made out in the petition is not persisted in. What is insisted on is that the order in its true meaning and effect is wholly outside the purview of R. 75A, and beyond the power entrusted to the respondent under that rule. This issue having been raised it is incumbent on me to consider and decide it. This leads me to a consideration of Mr. Chatterjee's second contention.

10. The point was formulated by Mr. Chatterjee as follows: Rule 75A is concerned with requisition and acquisition of property movable in the sense of chattels, and immovable. It does not authorise the requisitioning of any business or commercial undertaking. General control of industry, etc., is secured by R. 81. He relied on the case of Lahore, 24 Lah. 617.5 In that case Young, C.J after reviewing some of the English decisions held at page 638 that the Court could interfere if it was satisfied either that the order under R. 75A was ultra vires or that the order was not made bona fide but for some collateral purpose. Then at page 639 the learned Chief Justice held that R. 75A was not applicable at all to the requisition or acquisition of an undertaking. I did not understand the learned Advocate-General to controvert the principles laid down in that Lahore case. The learned Advocate-General faintly suggested that an hotel was not an “undertaking.” The dictionary meanings of “undertaking” are

“that which is undertaken; any business, work or project which a person engages in or attempts to perform; an enterprise; a promise or engagement.”

11. The word “undertaking” is defined in R. 81 as meaning

“any undertaking by way of any trade or business and includes the occupation of handling, loading or unloading goods in the course of transport.”

12. In (1891) 2 Q.B 116 Bowen, L.J at page ??? and Fry, L.J at p. 28 referred to the mode in which “the business of an hotel” was carried on. In (1897) 1 Q.B 5417 at p. 545 Lord Esher M.R referred to the proprietors of the hotel as “those who carried on the business of the hotel.” I have no doubt in my mind that an hotel is a business and consequently an “undertaking” in ordinary as well as in legal parlance.

13. The learned Advocate-General next contended—and this was his main argument on this point—that by the impugned order only the buildings, being the remaining portion of the Continental Hotel, 12 Chowringhee Road, which had not been previously requisitioned, had been requisitioned. He referred me to the text of the order in the Lahore case at p. 629 and said that by that order the Government not only requisitioned all property both movable and immovable but also the employees in order that the supply of electrical energy might not be interfered with. There the whole “undertaking” as a going concern had been requisitioned. The company there could not carry on any other business anywhere else of supplying electrical energy without a fresh licence under the Electricity Act. In the case now before the Court, argued the learned Advocate General, the business or its goodwill had not been affected, or impaired in any way and the petitioner was free to carry on his business of Continental Hotel at any other place in Calcutta or even at the next door. It is quite true that in the Lahore case the whole circumstances preceding the requisition order and the very terms of the order made it quite plain and obvious that the whole of the undertaking as going concern had been requisitioned and it was easy to apply the principles laid down by the learned Chief Justice. What are the circumstances and facts now before me? Here I have a petitioner who has been carrying on this Hotel business for the last 30 years at this particular place for which he pays rent at Rs. 4000 per month besides municipal taxes. On the ground floor he had a restaurant and on the first floor he had accommodation for boarders and lodgers. Since the commencement of the war his customers have been mainly military personnel. The Government requisitioned and took possession of practically the whole of the ground floor which used to be utilised as a restaurant or canteen for military personnel. Now the Government has requisitioned the remaining portion of the Continental Hotel that had not been requisitioned previously. A lady and a gentleman arrived to take charge of the place for the purpose, as they said, of running it as an hotel for military personnel. What, I said, is an hotel business, apart from the place where it is lodged, the amenities and environments of the place, the furniture, fixtures and fittings and utensils and services which are available at the place, the name in which it is carried on, the skill of management and the customers on whose patronage it depends? The Government threatens to take over the place where the petitioner's business has been carried on. The furniture, fixtures and fittings are mentioned in the recital in the order as properties considered necessary to be requisitioned along with the buildings, although in the operative part only buildings are mentioned. The place will be run as an hotel for the same class of customers who are in the habit of patronising the petitioner's hotel. What, then, is left of the petitioner's business? The petitioner is left with only the name and his skill of management. Where will he apply the skill? It is said he may start an hotel at any other place. The argument of the learned Advocate General proceeded on the assumption that the place of business had no importance or advantage for a business. I do not agree. “Goodwill” was defined by Lord Eldon in (1810) 17 Ves. 3358 at p. 346 as “nothing more than the probability that the old customers will resort to the old place” and by Wood V.C in (1859) Johnson 1749 at p. 188 as meaning

“every advantage…. that has been acquired by the old firm in carrying on its business whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business.”

14. The subsequent observations of the learned Judge show that in some businesses, e.g, a nursery business or a retail shop the locality is the important element of the goodwill and in the other businesses, e.g, a large wholesale business the name is the important element. In (1880) 16 Ch. D. 22610 which was concerned with a public-house Sir George Jessel M.R said at p. 233:

“It is quite plain that the good will of a public-house passes with the public-house. In such a case the goodwill is the mere habit of the customers resorting to the house. It is not what is called a personal goodwill”.

15. The local situation of goodwill was much discussed in the House of Lords in (1901) A.C 217.11 It is true that the question arose under the Stamp Act but the observations of their Lordships are expressed in general terms: Thus Lord Macnaghten observed at pp. 223-224 as follows:

“What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at the first start. The goodwill of a business must emanate from a particular centre or source. However widely extended or diffused its influence may be, goodwill is worth nothing unless it has power of attraction sufficient to bring customers home to the source from which it emanates. Goodwill is composed of a variety of elements. It differs in its composition in different trades and in different businesses in the same trade. One element may preponderate here and another element there”.

16. Farther the same noble and learned Lord said:

“For my part, I think that if there is one attribute common to all cases of goodwill it is the attribute of locality. For goodwill has no independent existence. It cannot subsist by itself. It must be attached to a business. Destroy the business, and the goodwill perishes with it, though elements remain which may perhaps be gathered up and be revived again. No doubt, where the reputation of a business is very widely spread or where it is the article produced rather than the producer of the article that has won popular favour, it may be difficult to localise goodwill. But here, I think, there is no difficulty.”

17. To the like effect is the observation of Lord James of Hereford at page 228:

“I entirely dissent from the view that the goodwill of a business, either wholesale or retail, cannot be locally situated. On the contrary, I should say that the goodwill of most businesses is locally situated. There may be exceptions, but this case is not one of them.”

18. The portion of the speech of Lord Brampton at page 230-231 is indeed instructive. After pointing out that there was a difference between the sale of a goodwill together with the premises in which the trade is then carried on and the sale of a goodwill without any interest in land or buildings connected with it, his Lordship at page 231 proceeded as follows:

“In the first of these cases the trade and the premises are inseparable so long as the trade is therein carried on. The advantages and facilities constituting the goodwill are all more or less derived from them, or the profitable results of such goodwill are therein realised. The goodwill of a trade carried on in a shop is as essential to the tradesman as the shop itself, which is benefited by it. What is the trade of a shop but the business done in it and how is that custom brought to the shop but by the goodwill attached to it? The combination of a suitable shop with the trade done in it, and the goodwill inducing that trade, seem to me to be inseverable. In my judgment, it matters not whether the business be a manufacturing one, or that of a shopkeeper, or a publican, or a brewer in each case the letter of his business premises with his goodwill sells, and the purchaser buys, the outgoing man's premises, with, so far as in him lies, the whole business carried on therein as a going concern, with the same prospects the vendor himself would have had, had he continued it, and I think it immaterial whether the business has been built up by reason of the personal good qualities of the outgoer, the goodness of his wares or merchandise, the good situation of the premises, or the absence of competition; in each case the business and custom, in fact, have been attracted to the house or premises and when the incomer takes possession, he takes all the chances offered and conveyed to him by his purchase, of standing, so far as the business is concerned, in the shoes of the outgoer, and he must rely upon his own good qualities and aptitude for his undertaking to continue the prosperity of the business and profit by his bargain.”

19. The following quotations from the speech of Lord Lindley at page 235 are material:

“Goodwill regarded as property has no meaning except in connexion with some trade, business or calling. In that connexion I understand the word to include whatever adds value to a business by reason of situation, name and reputation, connection, introduction to old customers, and agreed absence from competition, or any of these things, and there may be others which do not occur to me. In this wide sense, goodwill is inseparable from the business to which it adds value, and in my opinion, exists where the business is carried on….”

“Then in some cases and to some extent goodwill can and must be considered as having a distinct locality is obvious, and was not in fact disputed. The goodwill of a public-house, or of a retail shop is an instance. The goodwill of a business usually adds value to the land or house in which it is carried on if sold with the business, and so far as the goodwill adds value to land and buildings, the goodwill can only be regarded as situate where they are. In such a case the goodwill is said to be annexed to them.”

20. The above observations have been adopted as general definitions of “goodwill” in (1934) 1 K.B 64.12 The authorities mentioned above clearly establish that some attribute of locality is common to all cases of goodwill. Goodwill emanates from a particular centre or source. It has a local habitation. It draws custom home to the source from which it emanates. This is obviously so in the case of a retail shop, a brewery, or a public-house. The same considerations, in my opinion, apply to an hotel and particularly a residential hotel. I have no doubt in my mind that the situation of Continental Hotel on Chowringhee Road facing the Maidan, its proximity to places of amusements and shopping centres are calculated to attract customers to it. Further a residential hotel may well acquire a reputation for the size and comfortable arrangement and ventilation of its rooms and the other amenities attached thereto. The goodwill of an hotel business may and does easily become attached to a particular house. The attribute of locality is, in my opinion, of very great importance so far as the goodwill of an hotel business is concerned. The Continental Hotel on Chowringhee Road is certainly not the same thing as Continental. Hotel, say on Bowbazar Street. It is said that the petitioner may start an hotel on Chowringhee Road. If houses suitable for an hotel were so plentiful on the Chowringhee Road, why does the Government consider this particular place as specially fit for being requisitioned? Obviously because this place is specially suitable as an hotel, has a reputation and is well known and can be easily taken over as a going concern. The restaurant on the ground floor which, since the war, was patronised mostly by military personnel, has been requisitioned and is being run as a canteen for military people. The remaining portion of the hotel is being sought to be requisitioned for running a same kind of establishment as is being run by the petitioner for the same class of customers. It is quite clear that by requisitioning this house the authorities expect to get an hotel as a going concern, and intend to run it by some person of their choice namely, Mr. and Mrs. Lettington. Thus by requisitioning the buildings the authorities are in fact and in reality taking over not only the buildings but the goodwill of the petitioner's business which is attached to the buildings. It may be possible for the petitioner to start a hotel under the same name elsewhere but that will really be a new business without the goodwill that emanated from its present location. His existing business which is a going concern which had for the last 80 years its habitation in these buildings where his customers have been attracted will be gone for ever. This appears to me to be the real substance of the matter.

21. In my judgment the impugned order not only requisitions the buildings as the learned Advocate-General contended; but under the guise of requisitioning, the buildings it also requisitions the business undertaking of the petitioner, for the goodwill of his business which is attached to the buildings must necessarily go along with them. This cannot be done under R. 75-A, as has been held in the Lahore Electric Supply Co.'s case to which I have already referred. Even if the order does not directly requisition the business it certainly indirectly does so. It is a quite well established principle of law that a thing which cannot be done directly cannot be done indirectly. This principle has been applied to a variety of cases and I need only refer to the cases in 9 Beng. L.R 87713 at p. 402, 6 Cal. 106,14 29 Cal. 260,15 (1846) 15 M. & W. 6016 at p. 711; (1788) 2 T.R 24117 at p. 252, (1798) 8 T.R 30118, (1835) 4 B. & C. 18719 at p. 193 and (1837-40) 7 Cl. & F. 50920 at p. 539. The matter may, I think, be also looked at from another angle. Even if it were held that by the impugned order only the buildings have been requisitioned, yet requisitioning the place where the hotel business has been carried on for all these years destroys the business for all practical purposes and deprives the petitioner of the goodwill of his business or a very important part thereof. This goodwill is property. Therefore the petitioner will be deprived of his property. This, under Section 299(1) of the Government of India Act, cannot be done save by authority of law. The only law by which a person's business or goodwill thereof may be impaired or affected and to which I have been referred is to be found in R. 81. To deprive the petitioner of his business undertaking by an order purported to be made under R. 75-A, for that will be the inevitable result of the order, amounts, in my opinion, to depriving the petitioner of his property otherwise than by authority of law and is opposed to Section 299(1) of the Government of India Act, 1935.

22. For reasons stated above the impugned order, in my judgment, is ultra vires R. 75-A and cannot stand. If the order which is an administrative or ministerial order is illegal there can be no difficulty in granting a mandatory order under Section 45 of the Specific Relief Act. I accordingly direct and order the respondent to do the following act, namely to withdraw or cancel the order complained of and forbear from enforcing the impugned order. The rule is, therefore, made absolute to this extent. The petitioner will be entitled to the costs of this application.

Judgments in Appeal.

Derbyshire, C.J:— This is an appeal from a judgment of Das, J. whereby he declared that an order of the appellant requisitioning certain property was ultra vires of R. 75-A, Defence of India Rules, and made an order that the appellant should cancel the order complained of and forbear from enforcing it. The respondent Mr. Mackertich John for some thirty years past has carried on a business known as the Continental Hotel at 12 Chowringhee Road, Calcutta. The business is a considerable one employing some 300 persons. The hotel premises consisted of two floors, the ground floor and the first floor on which are six double bed rooms and seventeen single bed rooms; there are also kitchens and other offices. The respondent pays a rent of Rs. 4000 per month plus rates and taxes to his landlord under a lease for five years of which some two years have already run. The respondent has let the bed rooms to his customers and since the beginning of the War has catered very largely, but not exclusively, for military personnel. For that purpose he has doubled the number of beds in the various rooms.

23. In October 1943, the military authorities acting through the appellant, who is the Additional Land Acquisition Collector for Calcutta and invested with powers under the Defence of India Rules for the purpose of requisitioning land, buildings and other property, requisitioned a considerable portion, namely, ten thousand square feet of the ground floor of the hotel for the purpose of providing amenities in the way of food and drink for the military. The compensation for this area which was requisitioned in 1943 was not fixed immediately, but was eventually fixed at the rate of Rs. 2,500 per month. The amount due was not paid until November 1944 and then only Rs. 27,000 was paid. This tardy payment undoubtedly inflicted hardship upon the respondent. In June 1944 the military asked the requisitioning board, an unofficial body connected with requisitioning in Calcutta, to requisition the rest of the premises and Mr. John was requested to state his objections to the requisitioning of the entire hotel with all its fittings, fixtures and appurtenances. On 20th June Mr. John made his representations pointing out that part of his hotel had already been taken and that with the rest he was catering for the requirments of the military and that if the requisition was made it would put him out of business and cause him considerable loss and hardship. However, the military authorities persisted in their intention to requisition the premises. On 18th November the appellant requested Mr. John to come to his office on 21st November and bring with him his lease and discuss the matter. The meeting on 21st November took place and at the meeting Mr. John protested against the requisition of the premises and complained of the withholding of the payment of the part already requisitioned. It is alleged that at this meeting the appellant got angry and said “I will teach you a lesson.” It is also alleged that the complaint of the respondent about tardy payment was the cause of the order for requisitioning of the remainder of the premises. This allegation has not been persisted in. On 29th November, the appellant made an order as follows: [After quoting the order dated 29th November 1944 (see page 143 above) his Lordship proceeded.]

24. On 1st December Mr. John's attorneys wrote suggesting a working arrangement whereby Mr. John might continue in occupation of the premises. On 12th December a Mr. and Mrs. Lettington called at the hotel and saw Mr. John and told him that they would probably be asked to run the hotel on behalf of the military. Mr. John was of the opinion that this was an attempt to oust him from his business and on 8th December he moved this Court under Section 45 of the Specific Relief Act, for a rule prohibiting the appellant from enforcing or taking any steps in connexion with the requisition. On 28th February the rule was heard and Das, J., made the order which is now appealed against. The contentions of Mr. John were (1) that the order was not in proper form in that it stated it was in Mr. Gupta's opinion necessary and expedient for the efficient prosecution of the war to requisition the buildings whereas it should have been in the opinion of the Government of India or the Bengal Government; and (2) that the effect of requisitioning the remainder of the premises under the order was to deprive Mr. John temporarily, if not permanently, of his business and its goodwill and that this could not be done under R. 75A.

25. The learned Judge found against Mr. John on the first contention, but in his favour on the second. As regards the second contention he held that the effect of the order was to deprive the defendant of his business and its goodwill and that the business was an undertaking as defined by R. 81, Defence of India Rules, and that proceedings in respect of the acquisition of such an undertaking could only be under R. 81. He further was of the opinion that the acquisition of this part of the undertaking would be contrary to the provisions of Section 299, sub-sections (1) and (2) of the Government of India Act, which reads as follows:

“(1) No person shall be deprived of his property in British. India save by authority of law.

(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest, in or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.”

26. The learned Judge has followed the decision of the Lahore High Court in 24 Lah. 617. The matter has been argued very fully by the learned Advocate-General on behalf of the appellant and Mr. N.C Chatterjee on behalf of the respondent. It will be convenient here to set out the relevant provisions of the Defence of India Act and Rules. Section 2(1) of the Defence of India Act, provides:

“The Central Government may, by notification in the Official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.”

27. Sub-s. (2) provides that the rules may empower any authority to make orders providing for inter alia,

“(xxiv) the requisitioning of any property, movable or immovable, including the taking possession thereof and the issue of any orders in respect thereof.”

28. Sub-s. (3) provides that:

“The rules made under sub-s. (1) may further—(iv) confer power and impose duties—(a) upon the Central Government or officers and authorities of the Central Government as respects any matter,—notwithstanding that matter is one in respect of which the Provincial Legislature also has power to make laws; and (b) upon any Provincial Government or officers and authorities of any Provincial Government as respects any matter notwithstanding that matter is one in respect of which the Provincial Legislature has no power to make laws.”

29. Sub-s. (4) provides:

“The Central Government may by order direct that any power or duty which by rule under sub-s. (1) is conferred or imposed upon the Central Government shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged—

(b) whether or not the power or duty relates to a matter with respect to which a Provincial Legislature has power to make laws, by any Provincial Government or by any officer or authority sub-ordinate to such Government, or

(c) by any other authority.”

30. Section 19 of the Act provides:

“Where by or under any rule made under this Act any action is taken of the nature described in sub-s. (2) of Section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out.”

31. Rule 75A, Defence of India Rules, provides inter alia as follows:

“(1) If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property, movable or immovable, and may make such further orders as appear to that Government to be necessary or expedient in connexion with the requisitioning:

Provided that no property used for the purpose of religious worship and no such property as is referred to in R. 66 or in R. 72 shall be requisitioned under this rule.

(2) Where the Central Government or the Provincial Government has requisitioned any property under sub-r. (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the Official Gazette, a notice stating that the Central or Provincial Government, as the case may be, has decided to acquire it in pursuance of this rule.

(3) Where a notice of acquisition is served on the owner of the property or published in the Official Gazette under sub-r. (2) then at the beginning of the day on which the notice is so served or published, the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end.

(4) Whenever in pursuance of sub-r. (1) or sub-r. (2) the Central Government or the Provincial Government requisitions or acquires any movable property, the owner thereof shall be paid such compensation as that Government may determine.”

32. Rule 81 provides for the control and for regulation of industry and inter alia provides:

“(1) In this rule any reference to article shall be construed as including a reference to electrical energy, and the expression “undertaking” means any undertaking by way of any trade or business and includes the occupation of handling, loading or unloading goods in the course of transport.

(2) The Central Government, or the Provincial Government so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide—

(bb) for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without board.”

33. It has not been suggested either before Das, J. or before this Bench that the powers sought to be exercised in this case have been exercised improperly or mala fide. It has been suggested, however, that it was not necessary under the circumstances for the Government to acquire the remainder of the hotel, and that Mr. John could have been directed to run what remains of this hotel in accordance with the directions of Gov-eminent laid down in Rule 81(2)(bb). The position generally with regard to orders made under Emergency Defence Regulations and the powers of the Courts there, under is summed up in the judgment of Lord Greene, M.R in the English case in (1943) 2 ALL. E.R 56021 at p. 564 as follows:

“It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the Courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no Court can interfere. All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that those powers are exercised in good faith. Apart from that, the Courts have no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the transaction.”

34. The above was a case where a factory was requisitioned by the Government under Regn. 51, Defence (General) Regulations. I will now deal with the first contention of the respondent (which Das, J. decided in favour of the appellant) nemely, that R. 75A provides for two things (1) formation of opinion regarding specified matters by the Central or Provincial Government and (2) the making of the specified order, and that no order could be made unless and until the Government concerned formed the necessary opinion. It is said that in this case it is not the Government who formed the opinion that it was necessary to requisition the premises, but the appellant. In this connexion the appellant has produced his authority which is contained in a Government of India Notification of 27th February 1943 published in the Gazette of India. It reads as follows: [After quoting the notification (see page 143 above) his Lordship proceeded.] The respondent contends, however, that notification which is made under Section 2(4) of the Defence of India Act, quoted above only refers to the power to requisition the property and that the appellant had not been entrusted with either the power or the duty of forming an opinion as to whether the requisition of premises is necessary and expedient. In my view the notification which unquestionably gives him the power to requisition the premises, gives him power and the duty of considering whether it is necessary and expedient to requisition them. The notification delegates to him the powers conferred on the Government of India by R. 75A and those powers, in my opinion, include the power to consider whether the requisitioning is necessary and expedient and also the duty. Those powers were possessed by the Government of India which has conferred them upon him. I am, therefore, in agreement with the learned Judge on this point. On the second question, the argument ranged over a wider field. It was contended by Mr. Chatterjee that this hotel was an ‘undertaking’ within the provisions of Section 299 of the Government of India Act, and R. 81, Defence of India Rules. An ‘undertaking’ in the relevant sense according to the Concise Oxford Dictionary means ‘work & c. undertaken.’ I think, broadly speaking, it is synonymous with the word ‘business.’ I think the business of carrying on this hotel does come within the meaning of the word ‘undertaking.’

35. Mr. Chatterjee then referred to 24 LAH. 617, mentioned above, where the Punjab Government who had, powers to take over the Lahore Electric Supply Company under certain Acts, but found difficulties in its way of doing so, purported to act under R. 75A, Defence of India Rules, and requisitioned the whole of the undertaking. The learned Chief Justice after dealing with the circumstances came to the conclusion that the Punjab Government was not acting bona fide under R. 75A, but using it in order to acquire the undertaking which it found difficult in doing owing to its laches under the Acts which entitled the Government to acquire it. I can see no reason for doubting that part of the decision of the Lahore High Court. That was sufficient for the purpose of the Lahore case. The learned Chief Justice then went on to fortify the judgment by holding that R. 75A was not applicable at all to the requisition of an undertaking such as the Lahore Electric Supply Company. I regret I do not see my way to follow the reasoning in that matter. Rule 75A provides that for purposes of the defence of British India, public safety, the maintenance of public order, or the efficient prosecution of the war or for maintaining supplies essential to the life of the community, the Government may, by order in writing, requisition any property movable or immovable and may make such further orders as to the Government may have been necessary or expedient for requisitioning. The words ‘any property, movable or immovable’ must necessarily include all kinds of property, land, buildings, machinery and chattels of any kind, and anything that can be described as property. This prima facie covers a business and its goodwill. There are three exceptions to that, namely, no property used for the purpose of religious worship and no property such as is referred to in R. 66, namely, ships and their contents and property referred to in R. 72, namely, aeroplanes and their contents, shall be requisitioned. If it had been desired to exclude businesses and their component parts including goodwill the section could easily have provided for such exclusion. There are good reasons why businesses and parts of business and the goodwill are not excluded, since much property essential for the purposes of R. 75A(1), may be part of some business. Indeed in most cases such essential property would only be likely to be found in such businesses.

36. It was then pointed out that under R. 75-A(4) when the Government requisitions any movable property the owner shall be paid such compensation as that Government may determine. It was further pointed out that under Section 299(2) of the Government of India Act, the Government has no power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined. It was said that R. 75-A(4) authorises the Government to pay such compensation as the Government may determine, but does not fix the amount of compensation or specify the principles on Which and the manner in which it is to be determined and that consequently the movable property referred to in R. 75-A(4) cannot be movable property which forms part of an undertaking. I am unable to agree with that contention. Section 19(1) of the Defence of India Act, provides:

“Where by or under any rule made under this Act any action is taken of the nature described in sub-s. (2) of Section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out.”

37. The manner and the principles are set out in the following part of the section. In my view, therefore, the provisions of R. 75-A are not in conflict but are pursuant to the provisions of Section 299(2) of the Government of India Act. It may be that there are cases where movable property is requisitioned which is not part of an undertaking and then compensation may be paid under R. 75-A(4). In this case, we are not concerned with movable property since in the operative part of the requisition order the movable property of the hotel is not requisitioned, but only the immovable property, namely, the land and buildings of the hotel. It seems to me that under the provisions of Section 19(1)(e) of the Defence of India Act, where it is directed that

“the arbitrator in making his award shall have regard to (i) the provisions of sub-s. (1) of Section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable”

38. Apply in this case. Section 23(1) of the Land Acquisition Act, enacts:

“In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration…. fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings.”

39. I am, therefore, of opinion that the words in B. 75-A(1) “may requisition any property, movable or immovable” refer to all kinds of property except those referred to in the proviso. I think, therefore, that although the requisitioning of the remainder of Mr. John's hotel may for a time if not permanently, interrupt and damage his business that does not prevent the Government from requisitioning the land and buildings if it is necessary or expedient to do so for securing the defence of British India, public safety, the maintenance of public order, or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community. The purpose for which the property was requisitioned is, we are told, to provide amenities for troops and comes within the purposes of B. 75-A, Defence of India Rules. Mr. John may find his business injuriously affected but he will be entitled from the Government to such compensation as is laid down in the Defence of India Act and Rules. In my view, the declaration and order of Das, J., should be set aside and the appeal allowed with costs here and below. Certificate is granted under Section 205 of the Government of India Act, 1935.

Gentle, J.:— The respondent, Mr. Mackertich John, is the lessee of no. 12, Chowringhee Road, Calcutta, known as the Continental Hotel, where he has conducted the business of a hotel and restaurant keeper for the past 30 years; the monthly rental is Rs. 4000 and in addition he pays the usual taxes. In October 1943, the major portion of the ground floor comprising the restaurant and lounge, was requisitioned by the authorities and thereafter ceased to be occupied by the respondent. The appellant, Mr. Harish Chandra Gupta, is the Additional Land Acquisition Collector for Calcutta. On 29th November 1944 he issued an order, in Casa No. 574 of 1944, by which he purported to requisition the remaining portion of the hotel. Proceedings were taken by the respondent to question the validity of the order; Das, J. held it was ultra vires R. 75A, Defence of India Rules, and directed the appellant to withdraw or cancel the order and to forbear from enforcing it. Against this decision the present appeal is preferred.

40. The hotel is a two storied building, the ground floor has a restaurant and lounge and on the upperfloor there are 6 double and 17 single bed rooms which normally accommodate 29 guests. Since the outbreak of the War large numbers of people, including members of the Allied Forces, have come to Calcutta; in order to meet the increased need for accommodation, the number of beds in each room was doubled and there is now provision for 58 visitors. There are 7 permanent residents, the remaining accommodation is mainly used by members of the Forces. In October 1943 the major portion of the ground floor (about 10,000 square feet) was requisitioned; no objection was raised by the respondent and it has since been utilised as a troops canteen. In May 1944 the amount of compensation payable to the respondent, in respect of the requisitioned portion, was agreed at Rs. 2,500 per month; no payment was made until 29th November 1944, when a sum of Rs. 27,000 was paid on account. Meanwhile, the Secretary of the Requisitioning Board, by letter dated 14th June 1944, informed the respondent that a request had been made to requisition the remainder of the hotel, including its contents, such as fans, furniture and linen; the case would be considered by the Board on 20th June; any objection should be forwarded before that date; and he was invited to be present at the Board's meeting. The respondent wrote to the President of the Board setting out his objections and he attended the meeting. Nothing further transpired for several months. In November the respondent's solicitors, Messrs Fowler & Co., wrote to the appellant complaining of the delay in payment of compensation. Thereafter negotiation took place with the Bengal Government which eventuated in an agreement being signed on 21st November 1944 and on 29th November 1944 as already stated the respondent was paid Rs. 27,000 on account of the amount due; the ground floor had then been requisitioned for nearly 14 months. On the same day as payment was made, the appellant issued the order, the subject matter of the appeal, for requisitioning the remainder of the hotel, which was served upon the respondent on 1st December and required him to hand over the premises on 6th December. On 5th December the respondent took proceedings to question the validity of the order, a rule nisi was issued and also an injunction was granted restraining the operation of the order. On 12th December, a Mr. and Mrs. Lettington called at the hotel and informed the respondent they had come to take charge, and to conduct it, for the authorities, but, in view of the injunction, they left. On 12th February 1945, Das, J. made the rule absolute holding that the order is ultra vires R. 75A, Defence of India Rules, 1939. It is convenient, firstly, to set out the relevant provisions of the Defence of India Act 1939 (hereinafter called “the Act”) and the rules made thereunder. They are as follows: (After setting out the relevant provisions of Section 2(1), (2) and (4) his Lordship proceeded to quote the following provisions of the Defence of India Act.)

“Section 15. Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of British India.

Section 16(2). Where any order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, within the meaning of the Indian Evidence Act, 1872, presume that such order was so made by that authority.

Section 19(1). Where by and under any rule made under this Act any action is taken of the nature described in sub-s. (2) of Section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say:—

(a) Where the amount of the compensation can be fixed by agreement, it shall be paid in accordance with such agreement.

(b) Where no such agreement can be reached, the Central Government shall appoint as arbitrator a person qualified….

(c) The arbitrator in making his award shall have regard to— (i) the provisions of sub-s. (1) of Section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable; and (ii) whether, the acquisition is of a permanent or temporary character.”

41. [After setting out Rr. 75A(1), (2), (5)(a); 81(2)(b), Defence of India Rules, Section 299, (1) and (2) of the Government of India Act, 1935, and Section 23(1) of the Land Acquisition Act, 1894, his Lordship proceeded.]

42. On 27th February 1943, the Government of India in pursuance of S. 2(4) of the Act, made the following delegation of its powers to the appellant. (His Lordships then set out the Government of India Notification of 27th February 1943 (see page 143 above) and proceeded). It is to be noticed that the notification mentions ‘powers’ and does not mention ‘duties’ which S. 2(4) enables the Central Government also to delegate. In exercise of the delegated powers, on 29th November 1944 the appellant made the order which is impugned, the relevant parts are: [After setting out the relevant parts of the order (see page 143 above) his Lordship proceeded.] The above order purports to have been made and signed by the proper authority in the exercise of powers conferred by and under the Act; it conforms with the provisions of R. 75A, including the requirement for the respondent to furnish information with a view to determination of compensation; whilst in his petition, verified by affidavit on 5th December, 1944 the respondent alleges the appellant's order as mala fide, for the reasons therein stated, these allegations were not pursued before Das, J., nor during the hearing of the appeal. It is, therefore, to be presumed, pursuant to S. 16(2) of the Act, that the order was made bona fide by the proper authority and that consideration was given to the matters set out in S. 15 of the Act. The validity of the impugned order is questioned by the respondent on the following grounds:

(1) Before the order could properly be made, it was the duty of the Central Government to form the opinion that it was necessary or expedient to requisition the hotel. Since this was done by the appellant and not by the Government, there has not been compliance with the requirements of the rule.

(2) There is no power to requisition an undertaking; in the guise of requisitioning the building of the hotel, the order requisitions the respondent's undertaking established at the hotel and deprives him of his property of that undertaking.

43. It was contended by Mr. N.C Chatterjee, on behalf of the respondent, that by virtue of (1) the order has not been properly made and is ineffective, and, by virtue of (2) the order is ultra vires R. 75A and is invalid.

44. As to (1) — Mr. Chatterjee argued that the rule enables property to bs requisitioned provided two requirements are fulfilled, namely, (1) the discharge of a duty by the-Central Government to form an opinion that it is necessary or expedient to do so including consideration being given to the provisions of S. 15 of the Act and, not until this has been done, (2) the exercise of the power by the Government to issue an order-to requisition. Unless and until the Government delegates both the duty and the power, each can only be performed and exercised by the Government. By the notification) the power alone has been delegated to the-appellant and the duty has not been delegated to him. Before the appellant can exercise-the power to issue an effective order, the Government must previously discharge the duty to form the opinion. The appellant has purported to discharge this duty—the order recites, “whereas I am of opinion…”—which should have been performed by the Government, Since there has been no delegation of the duty to the appellant, he cannot perform it, and since it has not been-performed by the Government, therefore, it is contended, the impugned order is not an effective order to requisition the hotel. In my view a duty of the Central Government, which S. 2(4) contemplates being delegated, is a substantial or an express duty, such as, a duty, which pursuant to S. 2(8)(iv), can be imposed upon it and its duty to appoint an arbitrator under S. 19(1)(b). Such duty is not the formation of opinion indicated in R. 75A. The exercise of the power in that rule is subject to and dependent upon the formation of the opinion the power is not absolute but is conditional upon the opinion being previously formed; the formation of the opinion and the making of the order are not separate and distinct and independent attributes but the former is a component or an integral part of the latter the need for the formation of the opinion before the power can be exercised is a limitation of the power, it qualifies its extent and is a part of the power and the formation of the opinion and the issue of the order constitute the exercise of the power. The delegation, of the power includes authority to form the opinion conditioned upon which the power can be exercised. When the power has been delegated it is the responsibility of the person, in whose favour the delegation is made, to form the opinion before he can exercise the power. The validity of the delegation of the power to the appellant is not questioned; after the delegation he was the person by whom the opinion had to be formed. This is in accordance with the decision in A.I.R 1944 Mad. 285.22 I agree with Das, J., that the impugned order is not ineffective by reason that the appellant formed the opinion that it was necessary and expedient to requisition the hotel.

45. As to (2)— It is not disputed that the object of requisitioning the hotel building is to utilise it solely for the accommodation of personnel of the allied Forces; except for a few permanent civilian residents, the majority of the hotel guests are members of the Forces, at the present time. It is also not in dispute that the respondent's business of a hotel keeper, which he has conducted for 30 years, is a commercial undertaking and is movable property. It was contended on his behalf that Rule 75A does not enable an undertaking to be requisitioned; an undertaking can only be controlled by the machinery of R. 81; and, by the requisition of the building the undertaking is thereby requisitioned and the respondent is wrongly deprived of the property of the undertaking.

46. Whilst the majority of the visitors at the hotel are military they go there in the same way as all guests. If and when the building is used by the authorities, it will provide solely for personnel of the Forces, but they will be sent there by the authorities and they will not go to, or use it, as a hotel but as a place which caters for them alone. Sleeping accommodation, meals and refreshment will be provided, as at the present time, but the business and the goodwill of the hotel undertaking will have no bearing upon the use of the premises by the military and a hotel, as such, which provides for all wayfarers, will not be conducted. The existing conditions in Calcutta may make it difficult for the respondent to conduct his business elsewhere, with its name “Continental Hotel,” but he will be perfectly at liberty to do so. When the requisition period terminates, the respondent will also be at liberty to resume his business at the premises. By requisitioning the building the authorities do not requisition the business, although there will be an interruption and an interference in the conducting of it and, in that respect it will be injuriously affected e.g loss of custom and profit both during the time the requisitioning is in operation, and at least for some period after the business is resumed at the hotel. If it were necessary to decide the question, in my opinion, a commercial undertaking can be requisitioned by R. 75A. The power to requisition, in the rule, expressly applies to movable property, and a commercial undertaking is property of that description. There is nothing in the Act or the rules which prevents this being done. Rule 81 provides for Government controlling and regulating undertakings, including those which supply furnished residential accommodation and meals, which remain under the administration and direction of the proprietors but it does not provide that this is the only method by which Government can compulsorily be concerned with undertakings. Mr. Chatterjee relied upon the observation of Sir Douglas Young, C.J in 24 Lah. 617 to support his contention that an undertaking cannot be requisitioned by R. 75A. At p. 639 the learned Chief Justice said

“a careful examination of the provisions of R. 75A shows conclusively that this rule is not applicable at all to the requisition or acquisition of an ‘undertaking’.”

47. In that case the requisition order by the Provincial Government was not made bona fide; they had failed to give the required notice of their intention to exercise statutory powers and compulsorily to acquire an electricity undertaking; in consequence the undertakers were entitled to keep it for a further 20 years and the Government lost its opportunity to purchase it until the expiration of that period; in order to overcome their failure and to obtain the undertaking for themselves they utilised R. 75A. That was a clear case of mala fide conduct in the use of the rule and the exercise of the requisitioning power contained in it. There is no question of mala fide conduct in the present case and the above observations must be considered applicable only to the special circumstances of the case in which they were made and, in my view, do not have general application.

48. Mr. Chatterjee referred to Section 299 of the Government of India Act, and argued that the requisitioning of the building and as he contended, which involved requisitioning or acquiring the hotel business, is in violation of the section. The section prohibits a person being deprived of property save by authority of law and denies power to a Legislature to make law authorising the compulsory acquisition for public purposes of any land or any commercial undertaking unless the law provides for payment of compensation and either fixes the amount or specifies how it is to be determined. I have previously indicated that the respondent's undertaking has not been requisitioned but only his building, i.e his land. The requisition has been effected by authority of law contained in R. 75A.

49. The requisitioning of the hotel is compulsory acquisition of it within sub-s. (2) of Section 299 of the Constitution Act, and the provisions of sub-s. (1) of Section 19 of the Defence of India Act, apply. The acquisition is intended to be temporary but S. 299(2) does not limit compensation to permanent acquisition. Section 19(1) provides that where, by or under any rule made under the Act action is taken of the nature described in sub-s. (2) of S. 299 there shall be paid compensation, the amount of which shall be determined by agreement (cl. (a)) or by arbitration (cl. (b)) and the arbitrator, in making his award, shall have regard to the provisions of sub-s. (1) of Section 23 of the Land Acquisition Act, and whether the acquisition is of a permanent or temporary character (cl. 1(e)(i) and (ii)). Those provisions require that in determining the amount of compensation for the acquisition of land, the damage sustained by reason of the acquisition injuriously affecting other property, movable or immovable, of the person interested, shall be taken into consideration. The impugned order does not infringe the provisions of Section 299 of the Constitution Act, the deprivation of the respondent's building has been accomplished by authority of law contained in R. 75A, its compulsory acquisition is subject to compensation being paid and being determined under S. 19(1) of the Act, the provisions of which conform with the requirements in sub-s. (2) of S. 299. The amount of compensation which the respondent will be entitled to receive will, failing agreement, be ascertained as directed by the several clauses of sub-s. (1) of S. 19 of the Act, and the injurious effect to his undertaking namely, his movable property, by interruption or interference in its being carried on whilst his building is requisitioned and also the period of the requisition, will have to be considered by the arbitrator when making his award as to the amount of compensation. The impugned order is effective and valid and is in conformity with the requirements of law. In my opinion the appeal should be allowed.

G.N

50. Appeal allowed.