COLLECTOR OF AKOLA & ORS. versus RAMCHANDRA & ORS.

RAMCBANDRA & ORS.

Augu.it 30, 1967

[J.C. SHAH, s. M. SIKRI AND J.M. SHELAT, JJ.J

BomQay Land Requisition Act (Bom. 23 of 1948), s. 5(1)-Requi-sition for permanent public purpMe-If can be made.

Land Acquisition· Act (1 of 1894)-Power to requisition and ac-·quis_ition-lf action under one bar action undeT other.

The land owned by the respondents were requisitioned by the first appellant undet the Bombay Land Requisition Act for public purpose viz., for establishing new villa~e site to resettle victims of flood. The respondents filed writ petition in the High Court challenging the vtlidity of the order on the ground that since the Act was temporary Act extended until then upto 1963, the power to requisition thereunder would inhere to the Government only during the time that it subsisted; so an order passed for permanent purpose could not be in the contemplation of the Act. The High Court accepted the objection and quashed the order.

In appeal to this Court :

Held: The power to requisition under the Act could be exercis-ed whether the public purpose was temporary or not and tbe ex-ercise of that power for the purpose of rehabilitation of flood sufferers was neither in abuse of nor unjustified under the Act. The words "for any public purpose" in s. 5(1) are wide enough to include any purpose of whatsoever nature and do not con.tain any restriction regarding the nature of that purpose. It places no limitation on the competent authority as to what kind of public purpose it should be for the valid exercise of its power nor does it confine the exercise of that power to purpose which is temporary one. [404E-F; 405A-BJ

There is no antithesis between the power to requisition and the power of cm;np11lsory acquisition under the Land Acquisition Act. Ni:ither of the two Acts contains any provision under which it can be said that if one is acted upon, the other cannot. [ 405D-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1012 of 196.4.

Appeal by special leave from the judgment and order dated All;[!ust 28, 1962 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 373 of 1961.

R. M. Hazarnavis, K. L. Hathi and S. P. Nayar, for the ap-

pellants.

S. G. Patwardhan, and A. G. Ratnaparkhi, for the respon-

dent Nos. 1-10 and 12.

The Judgment of the Court was delivered by

S~elat, J. This appeal by special leave is directed against t,he order of the High Court. of Maharashtra quashing the order d.ated November 20, 1961 passed by the first appellant under sec-tion 5(1) of the Bombliy Lan<,! Requisition Act 23 of 1948 as

~xtended to. the Vidarbha! area by the Bombay Land Requisi-tlon <Extenston and Amendment) Act 33 of 1959.

The respondents are the owners of the land in question situate in the village Kasarkhed, District Akola. It appears that in 1959 there were floods in the area which affected the residen18 living in the gaothan of Kasarkhed. Once again there were floods in 1961 more serious than in 1959 affecting as many as 470 per· sons whose houses were either washed away or seriously damag-ed. There was therefore an urgent necessity of rehabilitating those sufferers at some Dither place where they could build their houses and complete them before the arrival of the next monsoon. In these circumstances the first appellant under powers conferred on him by section 15 of the Act passed the impugned order. The order stated that the lands set out in the Schedule therrt" were needed or were likely to be needed for the public purpose, viz .• for new gaothan at Kasarkhed for the victims of floods, the old village site where they lived having been rendered unsuitable by floods and that it was therefore necessary to requisition the said lands for the said purpose. It is not in dispute that land was needed for settling new gaothan where the victims of the flood could be resettled. At later stage the State Government also initiated proceedings under the Land Acquisition Act I of 1894 in respect of those very lands and issued notification under section 4 thereof. On Decem-ber, 14, 1961 the respondents filed Special Civil Application in the High Court challenging the validity of the said order on the grounds inter a/ia that it was passed without giving them an op-portunity of being heard, that it contravened Art. t9(1)(f) and (g) of the Constitution, that the competent authority had no power to invoke the Land Requisition Act inasmuch as the purpose for which it was exercised was of permanent character, viz., con: struction of houses and settling new village site, that the proceed-ings under the Act amounted to acquisition of lands, that invoking the Requisition Act was not in bona fide exercise of power under the said Act, that though there were more suitable lands for the said purpose the lands of the respondents were deliberately select-ed as result of influence exercised by the President of Balapur Municipal Committee, and that there were buildings and fac-tory situate on the said lands and therefore the procedure laid down in section 5(2) of the Act should have been followed. Jn the return filed by the appellants these allegatiOillS were traversed and it was submitied that the order was valid and competent under sec-tion 5(1) of the Act.

The High Court allowed the petition and quashed the order. In the opinion of the High Court the purpose for which the im-pugned order was passed was permanent purpose viz., establish-ing new village site, that since the Act was tempo!~1!' Act ex-tended until then up to 1963 and the power to reqms1t10n there-under would inhere to the Government only during the time that it subsisted an order passed for permanent purpose such as for establishing village gaothan could not be in the contemplation

of the Act and therefore could not be justified as one passed under the Act. The High Court observed : -

"The Bombay Land Requisition Act was, in our opinion, never intended to be used for the permanent acquisition of the lands of citizens as is being sought to be done in the instant case. We can only characterise the attempt to take the lands of the petitioners under that Act as an abuse t>f the provisions of that Act . .. . .. It is patent that if gaothan or abadi is allowed to rise upon the lands of the petitioners, the lands can never revert to them at any future time. It is not to be supposed nor is it alleged in the return that the respondents seriously thought that at some future date they would raise to the ground al! the houses they were allowing to bC constructed in the new gaothan. We hold that the impugned order is unjustified under the Bombay Land Requisition Act. is illegal and amounts to an abuse of the provisions of that Act."

Counsel for the appellants challenged the validity of the High Court's order on the ground principally that the High Court's view of section 5(1) of the Act was incorrect and that it failed to ap-preciate the scope of the provisions of section 5(1). 1be only ques-tion arising in this appeal thus is whether the Act authorises an order of requisitioning even if the purpose for which it is made is not temporary purpose, in the present case rehabilitation of flood sufferers and settling for that purpose new village site. The validity of section validity of section 5(1) is not challenged and therefore

The validity of section validity of section 5(1) is not challenged and therefore it is not necessary to inquire into the genesis of the power of 't1*: State legislature to enact the .Act. Indeed the question on which the High Court's decision rests is on the scope of the power rather than its validity.

Section 4(5) provides that the expression "to requisition" means in relation to any land to take possession of the land or to require the land to be placed at the disposal of the State Govern-ment. Section 5(1) under which the impugned order was made pro-vides that "if in the opinion of the State Government it is neces.. sary or expedient so to do the State Government may by an order in writing requisition any land for any public purpose." It is clear that the only requirement o( section 5(1) is that the State Govern-men~ ~ust form an opinidn that it is necessary or expedient to requ1s1t1on any land. It can do so of course only for purpose which is public. purpose. On the face of it the sub-section does not contain any express limitation to the power to requisition, the only limitation being that an order thereunder can be passed for public purpose only. It is not challenged tkat rehabilitation of flood sufferers is public purpose. The question then is does the sub-section contain by implication anv restriction viz.. that the requisiti0ning authority has no power thereunder to pass an Ofder where the purpose is not temporary. ·It appears that the High Court thought that since the Act it-self is of temporary chara'Clcr in the sense that it was to enure for particular period and that period had to be extended from time to time and on the Act ceasing to be in force when it is no more extended the requisitioned land would have to return to the owner it follows that the Act does not envisage requisitioning for purpose which is not temporary. In the opinion of the High Court the temporary character of the Act postulates temporary purpose for which alone power under section 5(1) can be exercis-ed. The High Court also appears to be of the view that there is an antithesis between the power to requisition and the power of acquisition, that the authority realised that the power to requisition ·cannot· be exercised where the purpose is not temporary and rea-lising this difficulty the State Government had to have recourse to its power under the Land Acquisition Act. In this view the High Court held. that settling new village site for the ftoodt.sufferers was permanent purpose, that once houses and other structures were built on the requisitioned• land it would be impossible for the autHority to return the land to its owner as provided under s~ 9, and therefore the Act could not have contemplated the exercise of the power thereunder for purpose which would render the operation of s. 9 impossible. The exercise of power for wch a• purpose· must therefore amount to an abuse of and cannot be justified under the Act.

In our opinion the High Court's view on the scope of the power under section- 5(1) cannot be sustained. On plain reading of the section it is clear that the only limitation to the power whichitconfers is the temporary life of the Act. But the words "any land for any public purpose" are sufficiently wide enough to in-clude any public purpose whether temporary or otherwise. To read" into the section limitation that the purpose contemplated by it is only temporary is to confound the temporary life of the statute with the character of the purpose for which the power thereunder can ~ exercised. Sub-section (I) !l'Jleaks of no restriction except, r as aforesaid, that the purpose must be public purpose. Section 9 no doubt provides that when the land in question is derequisition-. ed 11nd that. would happen when the statute comes to an end dr the land is otherwise released, it has to be restored to the owner as far as possible in the same coridition in which it was when it was put into possession of the authority. That is so because th& Gcivemment acquires only the n~· ht of possession and user of the land and not any proprietary ri ht therein and since the ~er­ship is still refained in the own the land must revert to him as soon as it. is released either by the lapse of power or when the nurpose of requisitionin~ is aver, whatever use .tr? .wh.ich suc1'. [1]" has been nut to ·during the period of such requ1s1tiomng. Section 9 therefore has nothing to do with the nature or character ~ the' pln'poSe for which an order .under s. 5(1) is passed. The hfe of the p<iwer and the purpose for Which · it is exerdised are two

distinct ingredients of section 5(1) and ought not to be oonfu&OO. The words "for any public purpose" in -the sub-section are wide enough to include ally purpose of whatsoever nature and- do not contain any restriction regarding the nature of that purpose. It places no limitation on the competent authority as to what kind of public purpose it should be for the valid exercise B. of its power nor does it confine the exercise of that power to purpose whicli is temporary only. Except for the limitation that the purpose must be public purpose the sub-section also imposes no restriction as to the manner in which the land which is requi-sitioned is to be used. It may be used for temporary purpose or for purpose which is not temporary in nature. It is for the requisi-tioning authority to judge and not for court of law to decide how best the land is to be used. If the requisitioning authority uses the land for purpose which is not temporary such as settling new village site and for construction of /louses it is for the Govern-ment and those who put up such structures to contemplate the possibility of having to return in future the land to the owner in its original state. But that does not mean that the power is restrict-ed to temporary purpose only.

. We do not also see any antithesis "between the power to re-quisition and' the power of compulsory acquisition under the Land Acquisition Act. Neither of the two Acts contains any provision under which it can be said that if one is acted upon, the other can-not. Indeed, Part VI of the Land Acquisition Act provides for tem-porary occupation of waste or arable land needed for public purpose or for Company and empowers the appropriate Govern-ment to direct the Collector to procure the occupation and use of the same for such purpose as it shall think fit, not exceeding three years from the commencement of such occupation. Apart .froin these provisions in the Land Acquisition Act there are several State Acts which empower the appropriate Governments to ac-quire property which is subject to requisitioning orders. If there is an emergency to meet which the power to requisition is exercised there is nothing in the Act to prevent the authority at Subse-quent date to initiate proceedings in a· suitable case for permanent ai:quisition. The exercise of power under the Requisitioning Act docs not exhaust or make incompatible the exercise of power Un-der the Land Acquisition Act. The initiation of proceedings under the. Land Acquisition Act after requisitioning the lands under s. 5(1) of the Act does not and cannot mean abuse of tlie power under the provisions of the Act. In our view the High/ Court was in error in holding that the power to requisition under the Act cannot be exercised where the public purpose is not temporary· or . that the exercise of that power for the purposes of rehabilitation of ftood sufferers was either in abuse of or unjustified under the Act.

We therefore allow the ·appeal and set aside the order passed by the High Court. Since the High Court de.dided the petition only

on the question of the validity of the exercise of power and did not decide the ·other questions raised in the petition, we remand the matter to the High Omrt to deoide those questions in accord-ance with law. In the circumstances of the case, we make no ord\:r as to costs.

Appeal allowed.