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PETITIONER: JIWANI DEVI PARAKI

       Vs.

RESPONDENT: FIRST LAND ACQUISITION COLLECTOR, CALCUTTA AND ORS.

DATE OF JUDGMENT30/08/1984

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) TULZAPURKAR, V.D. PATHAK, R.S.

CITATION:  1984 AIR 1707            1985 SCR  (1) 686  1984 SCC  (4) 612        1984 SCALE  (2)274

ACT:      West Bengal Premises Requisition and Control (Temporary Provision)   Act   1947-Whether   the   State   Government’s requisition  of   the  building   under  the  1947  Act  for indefinite periods by renewing the said temporary Act itself amounts to  indirect acquisition  of property under the Land Acquisition Act  and hence  the exercise  of power under the 1947  Act   is  improper   and  malafide-West   Bengal  Land Acquisition Act, Section 49 (1).

HEADNOTE:      The petitioner  is the lessee of the premises No. 7/1A- D,  Lindsay   Street,  Calcutta  which  is  situated  in  an important commercial  locality of Calcutta. The ground floor and mezzanine  floor of the said premises were requisitioned by Government  for establishing  main  Sales  Show  room  of respondent  No.   4,  namely  west  Bengal  Handicrafts  and Development Corporation Ltd., by an order of requisition No. 21/58-Regn. dated  25.2.1958 under  the West Bengal Premises Requisition and  Control  (Temporary  Provision)  Act  1947. Though this  Act itself  is a  temporary Act,  this has been renewed from  time to  time, the  last one  renewing it upto 31st March, 1985.      Aggrieved by  the piece-meal  extension of the 1947 Act and the  requisitioning of  his  premises  since  1985,  the petitioner challenged  the same  by a petition under Article 32 of  the Constitution  and contended  that  (a)  the  West Bengal premises  Requisition Control  (Temporary  Provision) Act  1947   cannot  be  converted  into  permanent  Act  and therefore requisition  of his premises cannot be a permanent requisition ; (b) Requisitioning the property in this manner for more  than 25  years amounts  to indirect acquisition of the property  and is  a fraud  upon the  power; and  (c)  It violates  both   Articles  14   and  19   (1)  (g)   of  the Constitution, since  the petitioner who himself requires the premises for his own business is prevented from using.      Disposing of the petition, the Court ^      HELD: 1.  There  are  significant  differences  between ’requisition’ and  ’acquisition’.  Normally  the  expression requisition is  taking possession  of  the  property  for  a

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limited period  in contradistinction  to  acquisition.  This popular meaning has to be kept in mind in judging whether in a particular  case there  has been  in fact any abuse of the power.   The    distinction   between    ’requisition’   and ’acquisition’ is  also evident  from Entry 42 in List III of the Seventh  Schedule, Original Article 31 clause (2) of the Constitution recognised  the distinction  between compulsory acquisition and requisition of the property. The two 687 concepts are different; in one title passes to the acquiring authority, in  the other  title remains  with the owner, the possession goes  to the  requiring  authority.  One  is  the taking over of the title and the other is the taking over of the  possession.   Thus  the   orders  of   requisition  and acquisition  have  different  consequences  and  affect  the owners concerned in different manners. But the State has the power both of requisition as well as acquisition, subject to one condition that is the property acquired or requisitioned must be  for public  purpose; Mangilal  Karwa  v.  State  of Madhya Pradesh,  AIR 1955  Nagpur p. 153 at p. 157 approved, Chiranjit Lal  Chowdhury v.  The Union  of India  and others [1950] I SCR p. 869 referred to. [695H; G; 696A-B]      2. Under  Section 49  (1) of  the Land Acquisition Act, 1942 as  amended by  the West  Bengal Act 32 of 1955, even a part of the building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and  there is no absolute bar to the acquisition of a part of a house or a building. [697F]      3:1 It  will not  be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of  a permanent  character and  where the  Government has also the  power and  the opportunity to acquire the property or a  part thereof  especially upon  the fulfilment  of  the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government  chooses  not  to  exercise  that  power  nor attempts to exercise that power to achieve its purpose, than that will  be bad not because the Government would be acting without power  of requisition  but the  Government might  be acting in  a bad faith. In other words, if there is power to acquire as  also the power of requisition and the purpose is of permanent nature by having the property or a part thereof for the  Government then  in such  case to keep the property under requisition permanently might be an abuse of the power and a  colourable exercise  of the  power  not  because  the Government lacks  the power  of requisition  but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better. [697H; 698A-C]      3:2 Where one is repository of two powers that is power of requisition  as well as power of acquisition qua the same property and  if the  purpose can  equally be  served by one which causes  lesser inconvenience and damage to the citizen concerned unless  the repository  of both the powers suffers from any  insurmountable disability,  user of  one which  is disadvantageous to  the citizen without exploring the use of the other would be bad not on the ground that the Government has no  power but  on the ground that it will be a misuse of the power in law. [698D-E]      3:3 In  the instant  case, it is indisputably true that (a) The  purpose of requisition is a public purpose; and (b) That the  only part of the building namely one room has been requisitioned for the show room but the premises in question has remained  under requisition  for over  25 years  and the

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purpose of having the premises in question is of a permanent and perennial  nature. But  that by  itself without anything more would not enable the court to draw 688 the inference  that  the  exercise  of  the  power  was  bad initially nor,  would  be  continuance  of  the  requisition became malafide  or colourable  by mere  lapse of  time.  In order to  draw such an inference some more material ought to have been  placed before the Court. In the circumstances the continuance  of   the  requisitioning  of  the  premises  in question must  be permitted  subject to  fulfilment  of  the conditions mentioned. [698H-F]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 11222 of 1983.       (Under article 32 of the Constitution of India)      Soli J. Sorabjee, Gopal Subramanyam, L. P. Agarwala, R. P. Singh, N. P. Agrwala and V. Shekher for the Petitioner.      F. S. Nariman, Rathin Das for Respondent Nos. 1 & 2.      S. N.  Kacker, D. K. Sinha and J. R. Das for Respondent No. 3.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  is an  application under article 32  of the  Constitution of India. Notice was issued and the  respondents  have  filed  counters  and  have  made submissions on the application. The petitioner is the lessee of the  premises No.  7/1 A-D Lindsay street, Calcutta which is situated in an important commercial locality of Calcutta. The ground  floor and mezzanine floor of premises No. 7/1-D, Lindsay Street, Calcutta were requisitioned by Government of West Bengal  by order  of requisition  No. 21/58 Reqn. dated 25th February,  1958 which  was substituted  by  requisition order No.  123/60 Reqn.  dated 10th  November,  1960  issued under the  West  Bengal  Premises  Requisition  and  Control (Temporary Provision) Act, 1947, hereinafter called the said Act for establishing main Sales showroom of respondent No. 4 herein which  is the  West Bengal Handicraft and development Corporation Limited (a West Bengal Government undertaking).      The area  under requisition  is 2521  sq. ft  on ground floor and  1677 sq.  ft. on  mezzanine floor  aggregating to 4198 sq.  ft. The  rent compensation  payable under the said Act was fixed by the Land Acquisition Collector, Calcutta on or about  31st March, 1959 at Rs. 1, 450-per month inclusive of taxes  and repairs with effect from 10th June, 1958 which was ultimately  modified to Rs. 2,500- per month by the High Court of Calcutta. It is alleged on behalf 689 of the  petitioner that  in fixing  the monthly compensation for acquisition  by Land  Acquisition  Collector,  the  High Court in  appeal took into consideration the rate prevailing in the  year 1958,  being the  year in which the requisition took place.  A showroom  of respondent No. 4 has been set up there.      The contention  of the petitioner is that from the very beginning the  State Government had the intention of keeping the said  requisitioned premises permanently. The petitioner contends that  the  State  Government  had  ample  power  to acquire the  said property under the Land Acquisition Act at the time of issue of order of requisition. In spite of power to acquire  the premises  in question,  the State Government resorted to  requisition the  same  with  the  intention  of permanently acquiring property in an indirect manner thereby the State  Government has  acted  in  improper  exercise  of

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powers  and  authority  and  has  not  exercised  the  power bonafide, alleges the petitioner.      The petitioner  further  alleges  that  the  object  is clearly  to   avoid  the   obligation  to   pay   reasonable compensation for  acquisition and  instead thereof  continue occupying  the  area  by  paying  nominal  monthly  rent  as compensation. Therefore,  according to  the petitioner,  the order of  requisition has been passed for extraneous purpose and is  arbitrary and  malafide. The petitioner also alleges that according  to the  present letting  value prevailing in the market, the value would be over Rs. 43,668-approximately per  month.   We  are,  however,  in  this  application  not concerned  with   that  controversy.   The  petitioner   has submitted that  requisition can  be for temporary period and for a  temporary purpose, and the State Government under the garb of requisition has really acquired the property and has avoided the obligation to pay compensation for acquiring the property which will be over Rs. 29 lakhs.      According to  the petitioner,  the West  Bengal Act  of 1947 which  was intended  to remain  in force  for  a  short temporary period does not contain any provision for revision of rent.  The said  Act came  into force  on  or  about  1st January  1948.  The  said  Act  contains  no  provision  for acquisition  of   any  property   but  deals   solely   with requisition of  property for making temporary provision. The said Act by various Acts has been renewed from time to time, the last  of such renewal as per averments has been extended upto 31st  March, 1985.  It  is  further  the  case  of  the petitioner that the said 690 Act cannot  be converted  into a  permanent  Act  and  there cannot be a permanent requisition.      According  to  the  petitioner,  by  this  process  the property in  question has been kept under requisition for 25 years. This,  it was  submitted, is  a fraud upon the power. According to  the petitioner,  the State  Government had the option of  acquisitioning the property. The State Government had also full knowledge that the possession of the said area was required  for a  permanent purpose  or at  least for  an indefinite period  i.e. for  setting up  a show-room  and in spite of the same did not choose to acquire the property but arbitrarily issued  the order  of requisition under the said Act. Petitioner  states a  that he  requires the premises in question to  carry on his own business and the said right is being  interfered   with  and   therefore   infringes   upon petitioner’s fundamental right. The petitioner contends that it violates  both article  14 and  article 19(1)(g)  of  the Constitution. There  are various  allegations about  damages being done to the premises in question. We are not concerned in this application with the said allegations.      The petitioner  prays for  an order of derequisition of the premises.      On behalf  of the  respondents, the  main contention is that the  said Act  has been  renewed from  time to time and there is  no limitation  to the  power of requisition except that the  same must  be for public purpose. According to the respondents, the  purpose in  this  case  is  indubitably  a public  purpose   and  that   public  purpose  remains.  The respondents contend  that there  is  no  limitation  on  the exercise of that power.      On behalf  of the applicant, reliance was placed on the decision of this Court in H. D. Vora v. State of Maharashtra and Ors. (Civil Appeal No. 1212 of 1984) -judgment delivered by my learned brother Bhagwati to which I was a party. There the question  as was  posed by  Bhagwati, J.  was whether an

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order of  requisition of  premises can  be continued  for an indefinite period  of time  or it  must  necessarily  be  of temporary duration.  The case discussed the other contention and repelled  the attack  on the order of requisition on the ground that  the order  of requisition  did not  set out the public purpose  for which it was made. It was noted by us in the 691 decision of  H. D. Vora that the High Court had held 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 third respondent that  the appellant  in that  case was  neither a government servant  nor a homeless person for whom the order of requisition  was purported  to have  been made.  We found that the  view taken  by the High Court was well-founded and it was  not possible  to hold on the material before us that the order  of requisition  was made  for public  purpose. On behalf of  the appellant,  however it was contended that the order of  requisition in  that case  was challenged  after a lapse of over 30 years and as such that challenge was liable to be  dismissed but  this Court  in Vora’s  case relied  on another ground  namely, that  an order of requisition was by its very  nature temporary in character and could not endure for an  indefinite period of time in the facts of that case, and the  order of  requisition in that case therefore ceased to  be  valid  and  effective  after  the  expiration  of  a reasonable period  of time  and that it could not, under any circumstance,  continue  for  a  period  o  over  30  years. Brother Bhagwati  noted the  difference  recognised  by  law between "requisition"  and "acquisition"  and it was further stressed that  where acquisition under Land Acquisition Act, 1894 was possible, the Government under guise of requisition could not continue to use the property under requisition for an indefinite period of time thereby in substance. acquiring the property  because that would be misuse by the Government of its  powers. It  was observed  in that  case that  if the Government  wanted   to  take   over  the  property  for  an indefinite period of time, the government should acquire the property but  it could  nor use the power of requisition for achieving  that   object.  In  those  circumstances  it  was observed that  the power  of requisition  was exercisable by the government  only for  a  public  purpose  which  was  of transitory character,  if the  public purpose  for which the premises were  required was  a perennial one or of permanent character from  the very inception, no order could be passed requisitioning the  premises and in such a case the order of requisition if  passed would  be fraud upon the statute, for the government  would be  requisitioning the  property  when really speaking  it wanted the property for acquisition, the object of  taking the  property  being  not  transitory  but permanent and  in such  circumstances it  was held  that  an order of  requisition for a period of such a long time as 30 years as  it had  happened in  that case  made the  order of requisition 692 bad. Relying  mainly on  the aforesaid  basis and  the facts alleged in  this case,  on behalf  of the  petitioner it was urged before  us that  the order  of requisition was bad and arbitrary.      On behalf  of the  respondents, however,  attention was drawn to  a decision  of this Court in the case of Collector of Akola and Ors. v. Ramachandra & Ors a decision of a Bench of three  learned judges,  There,  the  land  owned  by  the

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respondents  was   requisitioned  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 one extended until then upto 1963, the power  to  requisition  thereunder  would  be  with  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. It was held by this Court in appeal  that the power of requisition under the Act could be exercised whether the public purpose was temporary or not and  the   exercise  of   that  power  for  the  purpose  of rehabilitation of  flood sufferers  was neither  in abuse of the power  nor unjustified under the Act. The words "for any public purpose"  in Section 2(1) were wide enough to include any purpose  of whatever  nature and  did  not  contain  any restriction regarding  the nature of that purpose. It placed no limitation  on the competent authority as to what kind of public purpose should be for the valid exercise of its power nor did  it confine  the exercise of that power to a purpose which was of temporary nature. The Court observed that there was no  antithesis between  the power to requisition and the power of  compulsory acquisition under Land Acquisition Act. Neither of the two Acts contained any provisions under which it could be said that if one was acted upon, the other could not be.      In that case the facts were that the government made an order of  requisition under temporary Act for rehabilitating the flood  victims and  also initiated proceedings under the Land Acquisition  Act 1  of 1894  in respect  of those  very lands and  issued a notification under Section 4 thereof. It was contended that the action of the government was bad.      The only  question which  was argued  in that  case was whether  an  order  of  requisition  could  be  made  for  a permanent purpose. 693 The order  of requisition in that case was challenged on the ground that  the purpose  for which the order of requisition was made,  namely rehabilitation  of flood affected victims, was a  permanent purpose  and the  order of  requisition was therefore  bad   from  its  inception,  since  an  order  of requisition could  be made only for a temporary purpose. The argument of  the petitioner  who  challenged  the  order  of requisition was,  inter alia,  that the  competent authority had no  power to invoke the Land Requisition Act inasmuch as the purpose  for which  it was  exercised was of a permanent character. This  argument appealed to the High Court and the High  Court   held  that   the  order   of  requisition  was "unjustified under  the Bombay Land Requisition Act". It was only this  argument which  was considered  by this Court and this is  how this Court formulated in that case the question for its  decision: "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  ?" This  Court held  that the only restriction  imposed   by  the   statute  on  the  power  of requisition conferred  on the State Government was that this power could  be exercised  " Only  for a  purpose which is a public purpose"  and "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 a  public purpose  only"  and there is  no  implied  limitation  that  the  requisitioning authority has no power thereunder to pass an order where the

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purpose is not temporary". This Court said that the premises requisitioned "may  be used for a temporary purpose or for a purpose which  is not  temporary in  nature", and added that the power  of requisition  is not" restricted to a temporary purpose only".  No question  was raised before this Court in that case as to whether an order of requisition can continue for an  indefinite duration.  The argument before this Court in H.D.  Vora’s case  was not  that the order of requisition was initially  bad, when made, on the ground that it was for a purpose  which was  a permanent  purpose. It  fact, no one contended that  the purpose  of housing  homeless person was not  a   temporary  purpose  but  a  permanent  purpose  and therefore the  order of  requisition was  bad. The principal argument advanced  was that  though the order of requisition was good  when made,  it ceased  to be  valid and effective, because it  could  not  legitimately  be  continued  for  an indefinite length  of time. The order of requisition in that case had  been allowed to continue for a period of almost 30 years and  that is  why this  Court said  that the  order of requisition had ceased to be 694 valid and  effective and  the  premises  must  therefore  be derequisitioned. It  is no doubt true that some observations have been  made in  the judgment in that case with regard to the permanent  or temporary  character of  the  purpose  for which an  order of  requisition could  be made  and to  that extent what is said in that judgment may have to be slightly modified, but  the principal  decision in that case was that an order  of requisition  is by its very nature temporary in character  and   cannot  be   allowed  to  continue  for  an indefinite length  of time, because then it would tantamount to an  order of  acquisition and  would amount to a fraud on the exercise  of the  power of requisition, especially where there is  no impediment  in making  the acquisition  and  no effort was  made to  acquire, must  be regarded as a correct enunciation of  the law  which does  not in any way conflict with what was laid down in the case of Collector of Akola v. Ramachandra (supra).  The latter  decision merely  laid down that an  order of  requisition can  be made  for a permanent purpose while  the for  mer dealt  with a  totally different question, namely,  whether, whatever be the character of the purpose for  which an  order of  requisition was  made,  the question was,  could the  order of  requisition be continued for an  indefinite length  of time  and it was held that the order of  requisition would  cease to be valid and effective after the expiration of a reasonable period of time, even if it was  valid when made, and what, in the circumstances of a given case would be a reasonable period of time would depend on the  facts  and  circumstances  of  the  case.  There  is therefore no contradiction between the decision in Collector of Akola  v. Ramachandra  and the  latter decision  in  H.D. Vora’s case.      It may  not be  inappropriate to  note that  there  are significant   differences    between    ’requisition’    and ’acquisition’. These  have different  legal consequences and these affect  the owners concerned in different manners. But the State  has the  power both  of requisition  as  well  as acquisition, subject  to one  condition, i.e.,  the property acquired or requisitioned must be for public purpose. In the "Words and  Phrases Judicially  Defined" by  Roland  Burrows K.C. Vol.  4 at  p. 562,  it  was  observed  that  the  word ’requisition’ was  not a term of art and does not cannot the same state of things in every particular case.      In the  Fourth Edition  of Stroud’s Judicial Dictionary at page 2355, it has been mentioned that ’requisition’ is as

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follows:- 695           "Requisitioning’ is  not a  term of  art  and  has      different meanings.  Its usual  meaning is nothing more      than hiring  without taking  the property  out  of  the      owner although  the owner has no alternative whether he      will accept  the proposition  of hiring or not. It may,      however,  involve   the  taking   over  of  the  actual      domination of  a  chattel  (The  Steaua  Romana  (1944)      P.43).           "Requisitioned house";  "requisitioned land" Stat.      Def., Requisitioned  Houses and Housing (Amendment) Act      1955 (c.24), s. 18 (1)."      In the  case of  Mangilal  Karwa  v.  State  of  Madhya Pradesh, it was observed as follows:-           "If  the   term  ’requisition’  has  acquired  any      technical meaning during the two World Wars it has been      used in  for the sense of taking possession of property      for the  purpose of  the State  or for such purposes as      may be  specified in  the statute  authorizing a public      servant to  take possession  of private  property for a      specified   purpose    for   a    limited   period   in      contradistinction to  acquisition of  property by which      title  to   the  property  gets  transferred  from  the      individual to  the State  or to a public body for whose      benefit the  property is acquired. In ’requisition’ the      property dealt with is not acquired by the State but is      taken out  of the  control of  the owner  for the  time      being for  certain specified  purposes. Even  for  this      limited purpose, however, the owner becomes entitled to      compensation, because  ’requisition’  of  the  property      amounts at  least to  a temporary  deprivation  of  the      property."      Thus, normally  the expression  ’requisition’ is taking possession  of   the  property   for  a  limited  period  in contradistinction to ’acquisition’. This popular meaning has to be  kept in mind in judging whether in a particular case, there has been in fact any abuse of the power.      Orders of  requisition and  acquisition have  different consequences. These  have been  noted by  this Court  in the observations of Mukherjea, 696 J. in the decision in the case in Chiranjit Lal Chowdhury v. The Union  of India  and Others  and the distinction between ’requisition’ and  ’acquisition’ is  also evident from Entry 42 in  List III of the Seventh Schedule. Original Article 31 clause (2)  of the  Constitution recognised  the distinction between ’compulsory  acquisition’ and  ’requisition’ of  the property. The  two concepts  are  different:  in  one  title passes to  the  acquiring  authority,  in  the  other  title remains with the owner, the possession goes to the requiring authority. One is the taking over of the title and the other is the taking over of the possession.      It was  further contended  on behalf of the respondents that part  of the  premises i.e.  one room as in the instant case before  us, cannot  be acquired. Therefore the ratio of the decision  in the  case  of  H.  D.  Vora  would  not  be applicable  because  there  was  no  power  to  acquire  the premises in  question.  Secondly,  it  was  urged  that  the petitioner in  the instant  case was  not the  owner of  the property at  all and  the question  of  acquisition  of  the requisitioned premises  does  not  arise  at  all.  It  was, thirdly, contended that it was not possible in the facts and circumstances of  the case  to  get  any  other  alternative accommodation for  the showroom  of the State Handicraft and

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Development  Corporation  which  indisputably  is  a  public purpose. It  was emphasised  that the  West Bengal  Premises Requisition and Control (Temporary Provision) Act, 1947 does not contain any power to acquire the premises in question.      The main thrust of the argument was that section 49 (1) of the Land Acquisition Act, 1894 provides:           "The provisions  of this  Act shall  not be put in      force for  the purpose  of acquiring a part only of any      house, manufactory  or other  building,  if  the  owner      desire that  the whole  of such  house, manufactory  or      building shall be so acquired." In other  words it  was urged  that  this  provision  almost prevents the acquisition of a part of a house or building.      It may  be pointed  out that  section 49 (1) of the Act has been  amended so  far as West Bengal is concerned by the West Bengal 697 Act 32  of 1955  with effect from 20.10.1955 and the amended section 49 (1) so far as Calcutta is concerned runs thus:           "Section 49  (1): The provisions of this Act shall      not be  put in  force for  the purpose of acquiring the      part only  of any house, manufactory or other building,      if the acquisition of the part will render the full and      unimpaired use  of the  remaining portion of the house,      manufactory or building impracticable.           Provided that,  if any  question shall arise as to      whether the  part proposed  to be  acquired will render      the full and unimpaired use of the remaining portion of      the house,  manufactory or  building impracticable, the      Collector  shall   refer  the   determination  of  such      question to  the court and shall not take possession of      such part until after the question has been determined.           In deciding  on such  a reference  the Court shall      have regard  only to  the  question  whether  the  land      proposed to  be taken  is reasonably  required for  the      full and unimpaired use of the remaining portion of the      house, manufactory or building."      The aforesaid  provision suggests that even a part of a building or  a house can be acquired provided the conditions mentioned and  the procedure  specified therein are followed and there is no absolute bar to the acquisition of a part of a house  or a  building as  suggested by the counsel for the respondents.      In view  of the  decision in  the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors. v. Ramachandra and Ors. (supra)  and bearing  in mind  the distinction  between ’requisition’ and  ’acquisition’ as  also the  provisions of West Bengal  amended section  49  (1)  (quoted  above),  the correct position in law would be that it will not be correct to say  that in  no case  can an  order of  requisition  for permanent purpose  be made  but in  a  situation  where  the purpose of  requisitioning the  property is  of a  permanent character and  where the  Government has  also the power and the opportunity  to acquire  the property  or a part thereof especially upon the fulfil- 698 ment of  the conditions  of  section  49  (1)  of  the  Land Acquisition Act  (as amended  by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power  nor attempts  to exercise  that power to achieve its  purpose,   then  that  will  be  bad  not  because  the Government would  be acting without power of requisition but the Government  might be  acting in  a bad  faith. In  other words, if  there is  power to  acquire as  also the power to

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requisition and the purpose is of permanent nature by having the property  or a  part thereof  for the Government then in such case to keep the property under requisition permanently might be  an abuse of the power and a colourable exercise of the power  not because  the a  Government lacks the power of requisition but  because the  Government does  not  use  the other power of acquisition which will protect the rights and interests of the parties better.      Where one  is repository of two powers that is power of requisition as  well as  power of  acquisition qua  the same property and  if the  purpose can  equally be  served by one which causes  lesser inconvenience and damage to the citizen concerned unless  the repository  of both the powers suffers from any  insurmountable disability,  user of  one which  is disadvantageous to  the citizen without exploring the use of the other would be bad not on the ground that the Government has no  power but  on the ground that it will be a misuse of the power in law.      It is true that the purpose indisputably in the instant case is a public purpose. It is also true that the only part of the  building namely  one room has been requisitioned for the show  room but  the premises  in question  has  remained under requisition  for over  25 years  and  the  purpose  of having the  premises in  question  is  of  a  permanent  and perennial nature.  But that  by itself without anything more would not  enable the  court to  draw the inference that the exercise of  the power  was bad  initially,  nor  would  the continuance  of   the  requisition   become  mala   fide  or colourable by  mere lapse  of time. In order to draw such an inference some  more material  ought  to  have  been  placed before the  court. In  the circumstances  after having heard counsel on  either side  fully we  feel that  the  following would be  an appropriate  order to  be made  in the  instant case:      1. The  impugned requisition  order is  upheld but  the continu- 699 ance of  the requisition  of the  premises  in  question  is permitted subject to the conditions mentioned hereinafter.      2. The  Government is directed to take steps to acquire premises  in  question  by  complying  with  the  conditions mentioned and  by  following  the  procedure  prescribed  in section  49  (1)  of  the  Land  Acquisition  Act,  1894  as substituted for  the State of West Bengal by the West Bengal Act 32  of 1955  and if  possible issue an appropriate order acquiring the  same if Government wants the continued use of the premises. Such steps should be completed within a period of three years from today.      3. If,  however, there  are insurmountable difficulties in  acquiring   the  premises  under  section  49  (1),  the Government will  be at  liberty to  apply to  this court for appropriate directions.      4. We also hope that the Government would take steps to acquire any  alternative property  or  premises  under  Land Acquisition Act,  1894 in  view of the fact that the purpose of the  Government is  more or less permanent and such steps should also  be taken  not beyond a period of three years as aforesaid.      5. If  the aforesaid  conditions or  directions are not complied with,  the petitioner  will also  be at  liberty to apply to this court for appropriate directions in accordance with law.      6. In  the meantime, the parties are at liberty to make any appropriate  application for  the enhancement of rent or compensation in accordance with law, if they are so entitled

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to, and  this will  also  not  prejudice  the  parties  from proceeding with  any suit  for  damages  etc.  that  may  be pending.      The parties will pay and bear their own costs.      The application is disposed of accordingly.      CIVIL ORIGINAL JURISDICTION: Review Petition No. 641 of 1984.                            Order                              in               Writ Petition No. 11222 of 1983.                    dated 15th April 1985      Since it  has been  brought to our notice (which should have been  done when  the matter  was heard)  that the  West Bengal Act  32 of 1955 is not applicable to the facts of the case, we  direct that  any reference to that Act wherever it occurs shall  be deleted and in particular, in para 2 of the order portion  of our  Judgment  we  delete  the  words  "as substituted for  the State of West Bengal by the West Bengal Act of  1955". The  rest of  the order  stands.  The  Review Petition is disposed of accordingly. S.R.                                       Appeal dismissed. 700