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PETITIONER: H. D. VORA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT22/02/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR  866            1984 SCR  (2) 693  1984 SCC  (2) 337        1984 SCALE  (1)353  CITATOR INFO :  E          1984 SC1707  (9,12,18,22)

ACT:      Constitution of  India 1950.  Article 31  (2) & Seventh Schedule, List  III Entry 42. Acquisition and requisition of property-Differences-What are.      Power  of  requisition-When  exercisable-For  a  public purpose of transitory  character.      Bombay  Land  Requisition  Act  1948  Section  6(4)(a)- Requisition of  residential flat-Whether  could continue for an  indefinite   period-Tenant  paying   rent  directly   to landlord-Tenant whether  becomes direct  tenant of landlord- Whether requisition  order should  set  out  explicitly  the public purpose.      Practice and  Procedre: Writ Petition-Challenging order of requisition of flat after a lapse of thirty years-Whether maintainable.

HEADNOTE:      The appellant  applied to  the Accommodation Department of the  State Government  for allotment of a flat. The State Government urged   down  the request  but requisitioned  the flat by  an order  dated 9th April, 1948 under clause (a) of sub-section(4) of  section 6  of the Bombay Land Requisition Act, 1948.  This order  of requisition,  did not set out the public purpose  for which  the flat  was requisitioned.  The Assistant Controller of Accommodation by an order dated 25th April, 1951 allotted the requisitioned flat to the appellant who entered  into occupation  and paid  rent to the landlady from time  to time  but as  he was  irregular and  committed several defaults  the Controller  of Accommodation sought to terminate the allotment.      The 3rd  respondent, on  30th May,  1973 purchased  the building in  which the  requisitioned flat was situated, and requested the State Government to de-requisi- 694 tion the flat, as the allotment of the flat in favour of the appellant could not be said to be for a public purposes. The State Government did not pay any heed to this request.      The 3rd  respondent, thereupon filed a Writ Petition in the High  Court challenging  the validity  of the  order  or requisition, contending that it could not survive for such a

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long period  of time  and  that  the  State  Government  was therefore bound  to de-requisition  the flat. The High Court allowed the  Writ Petition and directed the State Government and the  Controller of  Accommodation to  de-requisition the flat, take  steps to  evict the  appellant,  and  hand  over vacant possession.      In appeal  this Court,  it was  contended inter alia on behalf of  the  appellant-tenant  that  even  the  order  of requisition was  invalid as  having been  made for a purpose other than  a public  purpose, the  3rd respondent  was  not entitled to challenge the order of requisition after a lapse of over 30 years and that the Writ Petition should have been dismissed by the High Court.      Dismissing Appeal, ^      HELD: 1.  The order of requisition even if it was valid when made, ceased to be valid and effective after expiration of a  reasonable period  of time What period of time must be regarded as  reasonable for  the continuance  of an order of requisition depends  on the  facts and circumstances of each case. [700 H]      In the  instant case, the order of requisition was made as far  back as  9th April  1951 and even if it was made for housing a  homeless person,  and the appellant at that time, fell within  that category, it cannot be allowed to continue for such  an inordinately  long period as thirty years. [700 G]      2. Requisitioning  must be  made for  a public purpose, and so  long as there is a public purpose for which an order of requisition  is made,  it would  be valid irrespective of whether such  public purpose  is recited  in  the  order  of requisition or  not. But  if the  order is  challenged,  the State Government  would have to satisfy the Court by placing the necessary facts showing the public purpose for which the order of requisition was made. [698 B,G]      3.  There   is  a  basic  and  fundamental  distinction recognised by  law between  requisition and acquisition. The Constitution itself  in Entry  42 of  List  III  of  Seventh Schedule  makes   a  distinction   between  acquisition  and requisitioning of  property. The  original Article 31 clause (2) of the Constitution and recognised this distinction 695 between compulsory acquisition and requisition of property.. The two  concepts, one  of  requisition  and  the  other  of acquisition   are    totally   distinct   and   independent. Acquisiting means  the acquiring  of the entire title of the expropriated owner  what ever  the nature and extent of that title may  be. The  entire of rights which was vested in the original holder passes on acquisition to the acquire leaving nothing to  the former. The concept of acquisition as an aim of permanence  and finality  in that there is a transference of the  title  of  the  original  holder  to  the  acquiring authority. But  the concept  of requisition  involves merely taking of "domain or control over property without acquiring rights of  ownership" and  must by  its very  nature  be  of temporary duration. [699 F-H]      4. If  the Government  wants to  take over the property for and indefinite period of the Government must acquire the property but  it cannot  use the  power of  requisition  for achieving  that   object.  The   power  of   requisition  is exercisable by  the Government  only for  a  public  purpose which is  of a  transitory character.  If the public purpose for which  the premises  are required  is of  a perennial or permanent character from the very inception, no order can be passed requisitioning  the premises  and in  such a case the

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order or  requisition, if  passed, would  a fraud  upon  the statute. What  ever be the public purpose for which an order of requisition  made, it  is by its very nature temporary in character and  it cannot  endure for  an  indefinite  period time. The  period of  time for which an order of requisition may be  continued cannot be an unreasonably long period such as thirty years and it must therefore be held that the order of requisition,  even if valid when made, ceased to be valid and effective.  The Writ  Petition challenging  the order of requisition after a lapse of over thirty years was therefore maintainable.[700 C-F,701 A]      5. The  appellant was an allottee of the flat under the order of  requisition and  he was liable to pay compensation for the  use  and  occupation  of  the  flat  to  the  State Government and  the State  Government was in its turn liable to pay  compensation for the requisitioning of the flat. If, instead of  the appellant  paying compensation  to the State Government and the State Government and the State Government making payment  of an  identical amount  to the  owner,  the appellant paid  directly to  the owner  with the  express or implied  assent  of  the  State  Government,  the  order  of requisition could  not cease  to be  valid and effective. It did not  matter whether  the appellant  described the amount paid by  him to the owner as rent, because whatever was done by him was under the order of requisition and so long as the order of  requisition stood,  his possession of the flat was attributable only to the order of requisition and no payment of amount  described as rent could possible after the nature of his  occupation of  the flat  or make  him  a  tenant  in respect of the flat.[701 F-H]      State of  Bombay v. Bhanji Munji & Anr. [1955] 1 S.C.R. 777; Chiranjital’s case [1950]S.C.R. 869; referred to. 696

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1212 of 1984.      Appeal by  Special leave  from the  Judgment and  order dated the  20th October, 1983 of the Bombay High Court in W. Appeal No.779 of 1983.      P.R.Mridul, G.  Vishwanath &  Parijat  Sinha,  for  the Appellant.      Ram  Jethmalani   &  Soli  J.  Sorabjee,  M.N.  Shroff, Talegankar & B.V. Desai. for the Respondents.      The Judgment of the Court was delivered by      BHAGWATI, J. Special Leave Granted.      This appeal by special leave raises a short question of law as to whether an order of requisition of premises can be continued for  an indefinite  period  of  time  or  it  must necessarily be  of temporary duration. The facts giving rise to this appeal are few and may be briefly stated as follows:      One Rukmanibai  was the  owner of  a  building  bearing House No. 65, Police Station Road, Ville Parle West, Bombay. The ground  floor of this building comprised of a flat which was in the occupation of one N.C. Shah as a tenant and since N.C. Shah  was going  to vacate  the flat,  Rukmanibai  gave intimation of  the proposed  vacancy to the State Government and requested  the State Government to allot the premises to the appellant  who was  her nearest  relative. The appellant also addressed  a letter  dated 12th March 1951 to the Chief Officer of the Accommodation Department of the Government of Bombay requesting  that he should be allotted the flat which was going  to be  vacated by  N.C. Shah.  It appears however

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that the  request of  the appellant  was turned  down by the State Government  and ultimately  the flat was requisitioned by  an  order  dated  9th  April  1951  made  by  the  State Government in exer- 697 cise of the powers conferred under clause (a) of sub-section (4) of  section 6  of the  Bombay Land Requisition Act 1948. This order of requisition did not set out the public purpose for which  the flat was requisitioned. Now curiously enough, though it  was decided  by the State Government not to allot the flat  to the appellant and his application for allotment was  specifically   reacted  the   Assistant  Controller  of Accommodation passsed  an order on 25th April 1951 allotting the requisitioned  flat to the appellant and pursuant to the order of allotment, the appellant entered into occupation of the flat.  The appellant  thereafter paid rent to Rukmanibai from time to time but the payment of rent was very irregular and the  appellant committed  several defaults in payment of rent with  the result that not less than seven owners had to be passed  by the Accommodation Department of the Government of Bombay directing the appellant to vacate the flat because his chronic  defaults. Ultimately,  however,  each  time  no action  for   eviction  was   taken  by  the  Controller  of Accommodation, presumably  because the  appellant must  have paid up the rent. It is significant to note that in the year 1964 the appellant requested the Controller of Accommodation to derequistion  the flat  and to allow him to become direct tenant of  Rukmani Bai  but his  application was rejected by letter dated  25th March 1964. The appellant also thereafter in the  year 1979 applied to the Controller of Accommodation for sanction  to erect  a kitchen  platform in  the flat but this application  was turned  down by  a letter  dated  20th March 1979 addressed by the Controller of Accommodation. The appellant throughout  this period  continued to  occupy  the flat as  an allottee under the order of requisition and paid rent to Rukmanibai from time to time. thought irregularly.      The  building  in  which  the  requisitioned  flat  was situate, was purchased by the 3rd respondent from Rukmanibai on 30th  May 1973. The 3rd respondent, after purchase of the building, requested  the State  Government to  derequisition the flat  inasmuch as the allotment of the flat in favour of the appellant  could not  be for a public purpose. The State Government did  not pay  any heed to this request of the 3rd respondent with  the result  that  the  3rd  respondent  was constrained to  file writ  petition No.  1210 of 1980 in the High Court  of Bombay  challenging the validity of the order of requisition  and contending that it could not survive for such a  long period  of time  and the  State Government  was therefore bound to derequisition the flat. 698      One of  the grounds  on which the validity of the order of  requisition   was  challenged  was  that  the  order  of requisition did  not set out the public purpose for which it was made. This ground of challenge was negatived by the High Court and,  in our  opinion,  rightly,  because  it  is  not necessary that  the order of requisition must explicitly set out the  public purpose  for which  it  is  made.  The  only requirement of  the law  is that  the requisitioning must be made for  a public  purpose and so long as there is a public purpose for  which an order of requisition is made, it would be valid irrespective whether such public purpose is recited in the order of requisition or not. It has, in fact, been so held by this Court in State of Bombay v. Bhanji Munji & Anr. (1) where Bose, J. speaking on behalf of the Court observed:           "In our  opinion, it  is not  necessary to set out

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    the purpose  of  the  requisition  in  the  order.  The      desirability of  such a  course is obvious because when      it is  not done,  proof of the purpose must be given in      other ways and that exposes the authorities to the kind      of charges  we find  here and  to the  danger that  the      courts will  consider them  well founded. But in itself      an omission  to set out the purpose in the order is not      fatal so  long as  the facts  are  established  to  the      satisfaction of the court in some other way."      The  order   of  requisition  could  not  therefore  be successfully attacked  on the ground that it did not set out the public  purpose for  which it  was made. But, as pointed out by  Bose, J.  in the  above  dassage  quoted  from  this judgment  in   Bhanji  Munji’s   case  (supra),   the  State Government would  have to show that the order of requisition was made  for a  public  purpose  and  the  necessary  facts showing  the   public  purpose   for  which   the  order  of requisition was  made would  have to  be established  by the State Government  to the satisfaction of the court. The High Court held  in the  present case that no material was placed before it  to show what was the public purpose for which the order of  requisition was  made and  in fact,  there was  no denial on  the part of the State Government or the appellant of the  averment made  on behalf  of the 3rd respondent that the  appellant  was  neither  a  government  servant  nor  a homeless person.  This view  taken by the High Court appears to be well-founded and it is not 699 possible to  hold on  the material placed before us that the order of requisition was made for a public purpose.      But it  was contended  on behalf  of the appellant that even if  the order of requisition was invalid as having been made for  a purpose  other than  a public  purpose, the  3rd respondent was  not entitled  to challenge  the same after a lapse  of  over  30  years  and  the  writ  petition  should therefore have  been dismissed by the High Court. Now if the only ground on which the order of requisition was challenged in the  writ petition  was that it was not made for a public purpose and  was therefore  void, perhaps it might have been possible to  successfully repel  this ground of challenge by raising an  objection that  the High  Court should  not have entertained the  writ  petition  challenging  the  order  of requisition after a lapse of over 30 years. But we find that there is also another ground of challenge urged on behalf of the 3rd  respondent and  that is a very formidable ground to which there  is no  answer. The  argument urged  under  this ground of  challenge was that an order of requisition in the present case  therefore ceased  to be  valid  and  effective after the expiration of a reasonable period of time and that it could not, under any circumstances, continue for a period of about  30 years and hence it was liable to be quashed and set aside  or in any event the State Government was bound to revoke  the   same  and  to  derequisition  the  flat.  This contention has,  in our  opinion, great  force and  must  be sustained. There  is a  basic  and  fundamental  distinction recognised by  law between  requisition and acquisition. The Constitution itself  in Entry  42 of List III of the Seventh Schedule  makes   a  distinction   between  acquisition  and requisitioning of  property. The  original Article 31 clause (2) of  the Constitution  also recognised  this  distinction between  Compulsory   acquisition  and   requisitioning   of property. The two concepts, one of requisition and the other of  acquisition   are  totally   distinct  and  independent. Acquisition means  the acquiring  of the entire title of the expropriated owner  whatever the  nature and  extent of that

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title may  be. The  entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving  nothing   to  the  former.  Vide:  Observations  of Mukherjee,  J.   in  Chiranjitlal’s  case.  The  concept  of acquisition has  an air  of permanence  and finality  in the there is transference of the title of the original holder to the acquiring  authority. But  the  concept  of  requisition involves merely taking of "domain or control over pro- 700 perty without acquiring rights of ownership" and must by its very nature  be of  temporary duration. If requisitioning of property  could  legitimately  continue  for  an  indefinite period of  time, the  distinction  between  requisition  and acquisition would  tend to  become blurred,  because in that event for all practical purposes the right to possession and enjoyment  of   the  property   which  constitutes  a  major constituent element  of the  right  of  ownership  would  be vested indefinitely  without any  limitation of  time in the requisitioning authority  and it  would be  possible for the authority to  substantially take  over the  property without acquiring it  and paying  full market  value as compensation under the  Land Acquisition  Act, 1894. We do not think that the government  can under the guise of requisition continued for an  indefinite period  of time, in substance acquire the property, because  that  would  be  a  fraud  on  the  power conferred on the government. If the government wants to take over the  property for  an indefinite  period of  time,  the government must  acquire the  property but it cannot use the power of requisition for achieving that object. The power of requisition is  exercisable by  the government  only  for  a public purpose  which is  of a  transitory character. If the public purpose  for which  the premises are required is of a perennial or permanent character from the very inception, no order can  be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the  object of  taking the  premisses being not transitory but permanent in character. Where the purpose for which the  premises are required is of such a character that from  the   very  inception   it  can  never  be  served  by requisitioning the  premises but  can be  achieved  only  by acquiring the  property which  would be  the case  where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but  it certainly  cannot requisition  the premises and continue  the requisitioning  indefinitely. Here  in the present case  the order  of requisition was made as far back as 9th  April 1951  and even  if it  was made  for housing a homeless person  and the  appellant at that time fell within the category  of homeless  person, it  cannot be  allowed to continue for  such an  inordinately long  period  as  thirty years. We  must therefore hold that the order of requisition even if  it was  valid when  made, ceased  to be  valid  and effective after  the expiration  of a  reasonable period  of time. It  is not  necessary for  us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and 701 circumstances of  each case  but there  can be no doubt that whatever be  the  public  purpose  for  which  an  order  of requisition is  made the  period of time for which the order of requisition  may be  continued cannot  be an unreasonably long period  such as  thirty  years.  The  High  Court  was,

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therefore, in  any view of the matter, right in holding that in the  circumstances the  order of  requisition  could  not survive any  longer and  the State  Government was  bound to revoke the  order of  requisition and  deregulation the flat and to  take steps  to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent.      There was  also one other contention urged on behalf of the  appellant   in  a  desperate  attempt  to  protect  his possession of the flat and that contention was, since he had paid rent  of the  flat to  Rukmanibai  and  such  rent  was accepted by her, he had become a direct tenant of Rukmanibai and the  order of  requisition had become totally irrelevant so far  as as  his possession of the flat is concerned. This contention  is,   in  our  opinion,  wholly  unfounded.  The appellant admittedly  came into occupation of the flat as an allottee under  the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and  such rent  was accepted  by her,  it did not have  the   effect  of  putting  an  end  to  the  order  of requisition. The appellant was an allottee of the flat under the  order   of  requisition   and  he  was  liable  to  pay compensation for  the use  and occupation of the flat to the State Government  and the  State Government  was in its turn liable  to   pay  compensation   to   Rukmanibai   for   the requisitioning of the flat and if, therefore, instead of the appellant paying  compensation to  the State  Government and the State  Government making  payment of an identical amount to Rukmanibai,  the appellant  paid directly  to  Rukmanibai with the express or in any event implied assent of the State Government, the  order of  requisition could not cease to be valid and  effective. It  did not  matter at all whether the appellant described  the amount paid by him to Rukmanibai as rent, because  whatever was  done by him was under the order of requisition  and so  long as  the  order  of  requisition stood, his  possession of  the flat was attributable only to the order  of  requisition  and  no  payment  of  an  amount described as  rent could  possibly alter  the nature  of his occupation of the flat or make him a tenant of Rukmanibai in respect of the flat.      We are  therefore of  the view  that the High Court was right 402 in allowing  the  writ  petition  and  directing  the  State Government  and   the   Controller   of   Accommodation   to deregulation the  flat  and  to  take  steps  to  evict  the appellant and to hand over vacant and peaceful possession of the flat  to the  3rd respondent. We accordingly dismiss the appeal, and  confirm the  order passed by the High Court but in the circumstances of the case, the appellant shall not be evicted from  the flat  until 28th  February, 1985, provided the appellant  files an undertaking in this Court within two weeks from  today that he will vacate the flat and hand over its vacant  possession to  the 3rd  respondent on  or before that date. There will be no order as to costs of the appeal. N.V.K.                                     Appeal dismissed. 703