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PETITIONER: COLLECTOR OF AKOLA & ORS.

       Vs.

RESPONDENT: RAMCHANDRA &  ORS.

DATE OF JUDGMENT: 30/08/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SHAH, J.C. SIKRI, S.M.

CITATION:  1968 AIR  244            1968 SCR  (1) 401  CITATOR INFO :  D          1972 SC2656  (11)  E          1984 SC1707  (10,12,22)

ACT: Bombay   Land  Requisition  Act  (Bom.  23  of   1948),   s. 5(1)--Requisition  for permanent public purpose--lf  can  be made. Land Acquisition Act (1 of 1894)--Power to  requisition  and acquistion--If action under one bar action under other.

HEADNOTE: The land owned by the respondents were requisitioned by  the first appellant under the Bombay Land Requisition Act for  a public purpose viz., for establishing a new village site  to resettle   victims of flood.  The respondents filed  a  writ petition  in the High Court challenging the validity of  the order  on  the  ground that since Act was  a  temporary  Act extended  until  then  upto 1963, the  power  to  requisiton thereunder  would inhere to the Government only  during  the time  that it subsisted; so an order passed for a  permanent purpose  could not be in the contemplation of the Act.   The High Court accepted the objection and, quashed the order. In a appeal to this Court: Held:  The  power  to requisition under  the  Act  could  be exercised  whether the public purpose was temporary  or  not and  the  excercise of that power for the  purpose  for  the purpose  of rehabilitation of flood suffers 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 do not contain any  restriction regarding   the  nature  of  that  purpose.  It  places   no limitation on the words competent authority  as to what kind of  "for any public purpose in s. 5( 1) are wide enough   to include  any purpose of whatsover nature and do not  contain any  restriction  regarding the nature of that  purpose.  It places nolimitation  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 a purpose  which is a temporary one. [404E-F; 405AB] There is no antitheses  between the power to requisition and the   power  of  compulsory  acquisition  under   the   Land

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Acquisition  Act.   Neither  of the two  Acts  contains  any provision   under  which it can be said that if one is acted upon, the other cannot. [405D-E]

JUDGMENT: CIVIL   APPELLATE  JURISDICTION:  Civil  Appeal   No.   1012 of 1964. Appeal  by special leave from the judgment and  order  dated August  28, 1962, of the Bombay High Court, Nagpur Bench  in Special Civil Application No. 373 of 1961. R.   M.  Hazarnavais,  K. L. Hathi and S. P. Nayar, for  the appellants. S  G. Patwardhan  and A. G. Ratnaprkhi, for  the  respondent Nos. 1--10 and 12. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave is directed  against the  order. of the  High Court of Maharashtra  quashing  the order dated November 20, 1961 passed by the first  appellant under section 5(1) of the Bombay Land Requisition Act 23  of 1948 as 401 402 extended to the Vidarbha area by the Bombay Land Requisition (Extension 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  are  which affected  the resident living in the gaothan  of  Kasarkhed. Once  again there were floods in 1961 more serious  than  in 1959  affecting  as many as 470 persons  whose  houses  were either washed away or seriously damaged. There was therefore an  urgent  necessity of rehabilitating those  sufferers  at some  other  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 therein were needed or were likely to be needed for the public purpose, viz., for a 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 a new gaothan where the victims of  the  flood could  be resettled.  At a later stage the State  Government also initiated proceeding,-, under the Land Acquisition  Act 1  of  1894  in respect of those very  lands  and  issued  a notification under section 4 thereof.  On December, 14, 1961 the  respondents  filed a Special Civil Application  in  the High Court challenging the validity of the said order on the grounds inter alia that it was passed without giving them an opportunity  of  being  heard,  that  it  contravened   Art. 19(1)(f)  and  (g) of the Constitution, that  the  competent authority  bad no power to invoke the Land  Requisition  Act inasmuch as the purpose for which it was exercised was of  a permanent  character,  viz.,  construction  of  houses   and settling a new village site, that the proceedings 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 moire  suitable  lands for  the  said  purpose the lands of  the  respondents  were deliberately selected as a result of influence exercised  by the President of Balapur Municipal Committee, and that there were buildings and a factory situate on the said lands,  and

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therefore the procedure laid down in section 5(2) of the Act should,  have  been followed.  In the return  filed  by  the appellants  these  allegations were -traversed  and  it  was submitted 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 impugned  order  was passed was a  permanent  purpose  viz., establishing  a new village site, that since the Act  was  a temporary  Act extended until then up to 1963 and the  power to  I requisition thereunder would inhere to the  Government only during the time that it subsisted an order passed for a permanent purpose such as for establishing a village gaothan could ’not be in the contemplation 403 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 of the  provisions  of  that               Act......  It is patent that if a  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 all               the   houses   they  were   allowing   to   be               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 appreciate the scope of the provisions  of section 5(1).  The only question 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 a  temporary purpose,  in  the  present  case  rehabilitation  of   flood sufferers and settling for that purpose a new village site. The validity of section 5(1) is not challenged and therefore it is not necessary to inquire into the genesis of the power of  )Me  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 Government.  Section 5(1) under which the impugned order was made provides that "if in the opinion of the State Government  it is necessary 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  of  section 5(1) is that the  State  Government must  form an opinion that it is necessary or  expedient  to requisition  any  land.  It can do so of course only  for  a purpose  which is a 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

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order  thereunder can be passed for a public  purpose  only. It is not challenged that rehabilitation of flood  sufferers is  a  public purpose.  The question then is does  the  sub- section  contain by implication any restriction  viz.,  that the requisitioning authority has no power thereunder to pass an order where the purpose is not temporary. 404 1t  appears that the High Court thought that since  the  Act itself is of a; temporary character in the sense that it was to  enure for a 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 a purpose which is  not temporary.   In the opinion of the High Court the  temporary character  of  the Act postulates a  temporary  purpose  for which  alone power under section 5(1) can be exercised.  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 realising 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 a  new village  site  for  the  flood-sufferers  was  a   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 a purpose which  would render  the operation of s. 9 impossible.  The exercise  of, power for such- 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 a,  plain reading of the section it is clear that the only  limitation to  the power which it confers is the temporary life of  the Act.   But the words "any land for any public  purpose"  are sufficiently  wide  enough, to include  any  public  purpose whether temporary or otherwise.  To, read into the section a 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 be exercised.  Sub-section (1) speaks of  no restriction except, as aforesaid, that the purpose must be a public  purpose.  Section 9 no doubt provides that when  the land  in -question is derequisitioned and that would  happen when  the statute comes to an end or the land  is  otherwise released,  it  has  to be restored to the owner  as  far  as possible  in the same condition in which it-was when it  was put  into possession of’ the authority.  That is so  because the  Government  acquires only the right of  possession  and user of the land and ’not any proprietary right therein  and since the ownership is still retained in the owner the  land must  revert to him as soon as it is released either by  the lapse  of  power or when the purpose  of  requisitioning  is over, whatever use to which such land has been put to during the period of such requisitioning.  Section 9 therefore  has nothing  to do with the nature or character of  the  purpose for which an order under s. 5(1) is passed.  The life of the power and the purpose for which it is exercised are two 405 distinct  ingredients  of section 5(1) and ought not  to  be confused.   The words "for any public purpose" in  the  sub- section are wide enough to include any purpose of whatsoever

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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 of its power nor  does  it confine  the exercise of that power to a purpose  which,  is temporary only.  Except for the limitation that the  purpose must  be  a public purpose the sub-section also  imposes  no restriction  as  to the manner in which the  land  which  is requisitioned is to be used.  It may be used for a temporary purpose  or for a purpose which is not temporary in  nature. It is for the requisitioning authority to judge and not  for a  court of law to decide how best the land is to  be  used. If the requisitioning authority uses the land for a  purpose which  is not temporary such as settling a new village  site and for construction of houses it is for the Government  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 restricted to a 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  cannot.   Indeed, Part  VI  of  the  Land Acquisition  Act provides for temporary occupation of  waste or arable land needed for a public purpose or for a  Company and  empowers  the  appropriate  Government  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  from these  provisions  in  the Land Acquisition  Act  there  are several State Acts which empower the appropriate Governments to  acquire  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 a subsequent  date  to  initiate proceedings  in a suitable case for  permanent  acquisition. The exercise of power under the Requisitioning Act does  not exhaust or make incompatible the exercise of power under 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 the 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 flood  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  decided  the petition only 406 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 Court  to  decide  those questions  in accordance with law.  In the circumstances  of the case, we make no order as to costs. Y.P.                    Appeal allowed. 407