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PETITIONER: COLLECTOR OF KAMRUP AND OTHERS

       Vs.

RESPONDENT: KAMAKHYA RAM BAROOAH AND OTHERS

DATE OF JUDGMENT: 11/09/1964

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. (CJ)

CITATION:  1965 AIR 1301            1965 SCR  (1) 265

ACT:   Assam Land (Requisition and Acquisition) Act (Assam 25  of 1948) ss. 3, 4 and 11-Scope of.

HEADNOTE:   Under  r.  75-A of the Defence of India Rules,  1939,  the respondents  land and building thereon  were  requisitioned. while  that requisition order was subsisting, an  order  for acquisition  of the land and building was passed under s.  4 of  the Assam Land (Requisition and Acquisition) Act  (Assam 25  of  1948).  Realising later that the power  under  s.  4 could    be    exercised    only   when    there    was    a requisition  order under s. 3, the defect was sought  to  be rectified by passing an order of requisition to take  effect from  a  date  anterior to the order  of  acquisition.   The respondents  applied for a reference under s. 8 of  the  Act and,  the Subordinate Judge to whom the reference  was  made and  the High Court on appeal held the acquisition  invalid. In  appeal  to  the Supreme Court,  it  was  contended  that notwithstanding the illegality the order of acquisition  was saved  by s. II of the Act, as an order made in exercise  of power conferred by or under the Act.   HELD  : The power which was exercisable under s.  4  being expressly   a  power  to  acquire  land  which   was   under requisition under s. 3 and there being no effective order of requisition under that section the acquisition was not  made in  exercise  of the power conferred by or  under  the  Act. section 11 was not therefore a bar to the maintainability of the objection raised as to the validity of the  acquisition. [267H; 268A].

JUDGMENT:    CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 412-414 of 1962. Appeals  from  the judgment dated February 10, 1958  of  the Assam High Court in Appeals from Original Decrees Nos. 10 to 21 of 1953. Naunit  Lal,  for  appellants  Nos. 1  and  2  (in  all  the appeals). B.   Sen and B.R.G.K. Achar, for appellant No. 3 (in all the

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appeals).   Beharul  Islam and R. Gopalakrishnan, for the  respondents in all the appeals) .   The Judgment of the Court was delivered by Shah  J. These three appeals raise a common question  as  to the validity of certain acquisition proceedings commenced by the  Collector of Kamrup, State of Assam, under s. 4 of  the Assam Land (Requisition and Acquisition) Act, 1948.   We  may  in dealing with these appeals set out  the  facts which give rise to appeal No. 412 of 1962.  The  respondents in this appeal are owners of a plot of land at  Bharalumukh, Gauhati, on 266 which  stands  a  residential building In  exercise  of  the powers conferred by rule 75-A of the Defence of India Rules, 1939,  the  Government of India in 1943,  requisitioned  the land  and  the building for the use of the  defence  forces. Since the date of the requisition the land and the  building continued  in  possession of the Government of  India.   The Collector of Kamrup passed an order on February 9, 1949  for acquisition of the land and building purporting to  exercise powers under s. 4 of the Assam (Requisition and Acquisition) Act,  1948.  At this time the requisition order made by  the Government  of  India was subsisting.  Thereafter  by  order dated August 4, 1949 the Collector requisitioned the land in exercise  of  the power conferred by s. 3 of the  Assam  Act 1948,  and ordered that the requisition do take effect  from February  7,  1949.   The  Collector  assessed  compensation payable  to  the  respondents under s. 7 of  the  Act.   The respondents applied for a reference to the Civil Court under s. 8 of the Act and simultaneously challenged the  authority of  the Collector to acquire the land in the manner  he  had done.  The Subordinate Judge, Gauhati to whom the  reference was  made, held that there was no valid acquisition  of  the land  and  the building of the  respondents.   He,  however, assessed   compensation  which  would  be  payable  to   the respondents if the acquisition was valid.  In appeal to  the High  Court  of Assam, the order passed by  the  Subordinate Judge,   holding  that  the  acquisition  was  invalid   was confirmed.   The State of Assam has filed this  appeal  with certificate granted by the High Court.   Acquisition  of  the land and building  belonging  to  the respondents was not made under the Land Acquisition Act I of 1894,   but   under  the  provisions  of  the   Assam   Land (Requisition  and  Acquisition)  Act,  1948.   The  Act  was enacted,  as  the  preamble state for  the  requisition  and speedy   acquisition  of  promises  and  land  for   certain purposes.   By  s.  3 if in the opinion  of  the  Provincial Government  or any person authorised in that behalf  by  the Provincial  Government, it is necessary so to do, for  main- taining supplies and services, essential to the life of  the community   or   for   providing   proper   facilities   for accommodation,   transport,  communication,  irrigation   or drainage, to requisition land, the Provincial Government  or the  person  authorised may by order in writing, do  so  and make  such  further orders as appear to it or to him  to  be necessary  or expedient in connection with the  requisition. Section 4 by sub-s. (1) provides :               "Where  any land has been requisitioned  under               section 3. the  Provincial Government may  use               or deal with               267               it  in such manner as may appear to it  to  be               expedient   and  may  acquire  such  land   by               publishing  in the Official Gazette, a  notice

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             to  the effect that the Provincial  Government               has decided to acquire such land in  pursuance               of this section."               Sub-section (2) provides               "Where  a notice as aforesaid is published  in               the  Official Gazette, the requisitioned  land               and premises shall, on and from the  beginning               of   the  day  on  which  the  notice  is   so               published,  vest absolutely in the  Provincial               Government free from all encumbrances and  the               period of requisition of such land shall end." The power to acquire land under s. 4 may, it is plain from a bare perusal of sub-s. (1), be exercised where the land  has been  requisitioned  under s. 3 and not otherwise.   In  the present case, an order for acquisition of the land was  made in the first instance and presumably because it was realized that the order was defective and irregular, it was sought to be  rectified  by  passing  an  order  on  August  4,  1949, requisitioning  the land with effect from February 7,  1949. By this expedient, an illegal order of acquisition could not be validated.   It is true that at the date when the order of  acquisition was  passed under s. 4, the land was under  requisition  for use  of the defence forces.  That order of  requisition  was passed not under s. 3 of the Assam Act, but under Rule  75-A of   the  Defence  of  India  Rules,  1939.   The   previous requisition  under the Defence of India Rules which  was  at the  date of the order of acquisition outstanding could  not confer any authority upon the Provincial Government of Assam to acquire the land belonging to the respondents under s.  4 of the Act. It  was  urged that notwithstanding the  illegality  in  the acquisition, the order of acquisition was saved by s. 1 1 of the Assam Act, which provides :               "Save as otherwise expressly provided in  this               Act, no decision or order made in exercise  of               any power conferred by or under this Act shall               be called in question in any Court." It cannot, however, be said that the order passed under s. 4 acquiring  the land of the respondents was made in  exercise of the power conferred by or under the Act.  The power which was  exercisable  under  s. 4 being  expressly  a  power  to acquire land 268 which  is under requisition under S. 3, and there  being  no effective order of requisition under that section, S. I 1 is no bar to the maintainability of the objection raised to the validity of the acquisition.  The High Court was, therefore, in  our judgment, right in holding that the acquisition  was illegal. The appeals fail and are dismissed with costs. Appeals dismissed. 269