CASE NO.: Appeal (civil) 373 of 1987 PETITIONER: RAJENDRA KUMAR GUPTA AND ANR. RESPONDENT: STATE OF U.P. AND ORS. DATE OF JUDGMENT: 10/02/1997 BENCH: DR. A.S. ANAND & S.B, MAJMUDAR JUDGMENT:
JUDGMENT
1997 (1) SCR 1056
The Judgment of the Court was delivered by :
S.B. MAJMUDAR, J.: The appellants in this appeal by special leave have
brought in challenge the order of a Division Bench of the High Court of
Judicature at Allahabad dismissing the writ petition moved by the
appellants before that Court. The appellants had challenged an order dated
29th October 1976 passed by the second respondent, District Magistrate-
cum-Competent Authority, Kanpur, requisitioning 777 sq. yards and 7- 1/3
sq. ft. of lands comprising of plot Nos. 36 and 36-A situated on The Mall,
Kanpur in exercise of the powers of the second respondent under Section 23
of Defence and Internal Security of India Act, 1971 (hereinafter referred
to as ‘the Act’). The impugned order of second respondent merely mentioned
that the said order of requisition was issued as it was necessary and
expedient to requisition the property in question for maintaining supplies
and services essential to the life of the community. The appellants were
called upon by the said order to deliver by 15th November 1976 possession
of the said immovable property to the Director, Handlooms and Managing
Director of U.P. State Handloom and Power-loom Finance and Development
Corporation Ltd., Kanpur, U.P., respon-dent no. 3 herein. During the writ
proceedings it transpired that the said requisition order was issued with a
view to seeing that the concerned respondent-Corporation could construct
shops and showrooms in the land in question for exhibiting its handloom
products which were manufactured by handloom weavers. The appellants
contended before the High Court that the aforesaid purpose of requisition
was dehors the provisions of Section 23 of the Act. It was next submitted
that as it was a permanent purpose power of requisition under the Act would
not be invoked for fructifying the said purpose and in any case such a
requisition order could not continue indefinitely and hence the continued
enforcement of the said order resulted in unreasonable exercise of power on
the part of the second respondent. The Division Bench of the High Court was
not persuaded to accept the aforesaid contentions raised on behalf of the
appellants and dismissed the writ petition. That is how the appellants are
before us in this appeal.
Rival Contentions Shri Sibal, learned senior counsel for the appellants
vehemently contended that the Act itself was a temporary Statute having the
limited existence being enacted during emergency, both external and
internal, and had already ceased to operate since long and that the purpose
for which the requisition was resorted to was dehors the provisions of
Section 23 of the Act as providing a showroom for exhibiting the wares
manufactured by weavers could not be said to have any nexus with the
maintenance of supplies and services essential to the life of the
community. He also submitted that in any case the purpose being of the
permanent nature could not have been the subject-matter of an order of
requisition under Section 23 of the Act.
He lastly submitted that in any view of the matter the continued
enforcement of the impugned order for all these years till date has become
totally unreasonable and even on that ground the requisition order which
had outlived its existence and legal efficacy deserves to be quashed.
On the other hand learned counsel for respondent No. 2 and Shri Altaf
Ahmed, learned Additional Solicitor General appearing for respon-dent no. 3
contended that the impugned requisition order was within the forecorners of
Section 23 of the Act and that it was not as if the requisition could be
resorted to only for a limited period or only for a temporary purpose. That
requisition can be made for subserving even a permanent purpose.
It was next contended that the lands under requisition belonged to the
State. They were Nazul lands. They were earlier leased out by two separate
Lease Deeds in favour of one J.N. Mehrotra in the years 1920 and 1932
respectively. That the initial period of 30 years in respect of each of the
leases had already expired and there had been no renewal in respect of plot
no. 36 whereas renewal in respect of plot no. 36-A was effected in 1948 for
a further period of 30 years which had also admittedly expired in 1978 and
thereafter no further renewal was ef-fected by respondent no. 1 – State of
U.P. It was, therefore, contended that on the expiry of one year from the
date of the impugned requisition order there remained no occasion for the
State to acquire these lands and their possession stood reverted to the
State authorities in their ownership and consequently the appellants cannot
have any grievance in connection with the lands in question. In Rejoinder
it was submitted by learned senior counsel for the appellants that both
these leases contained clauses giving absolute option to the lessees to get
renewal of leases for further periods of 30 years subject to the maximum
period of 90 years from the date of the original leases. That the
appellants had legally acquired right, title and interest of the original
lessee in these lands and that they had exercised their option under the
Lease Deeds to get the leases renewed for a further period of 30 years.
That even the. Municipal authorities at Kanpur had accepted Nazul rent from
the appellants from time to time and there was nothing on the record to
indicate that the State had resumed these Nazul lands at any time or had
terminated the leasehold interest of the appellants in the lands.
Consequently it could not be said that the appellants had no locus standi
to put forward their grievance in the present proceedings.
In view of the aforesaid rival contentions the following points arise for
our determination :
Points for determination
1. Whether the impugned requisition order dated 29th October 1976 was
validly passed under Section 23 of the Act.
2. Whether the appellants have got locus standi to challenge the said
order.
3. Whether the requisition order had outlived its existence and its
continuance any further would amount to colourable exercise of power and
would be unreasonable.
We shall deal with these points seriatim. Point No. 1
While considering the efficacy of the impugned requisition order under
Section 23 of the Act it is necessary to note a few relevant statutory
provisions in the light of which the said order will have to be
scrutinised.
The Defence of India Act, 1971 was enacted in 1971 with a view to providing
for special measures to ensure the public safety an interest, the defence
of India and civil defence and for the trial of certain offences and for
matters connected therewith. The Preamble of the Act laid down that whereas
the President has declared by Proclamation under clause (1) of article 352
of the Constitution that a grave emergency exists whereby the security of
India is threatened by external aggression; and whereas it is necessary to
provide for special measures to ensure the public safety and interest, the
defence of India and civil defence, and for the trial of certain offences
and for matters connected therewith that the Act was enacted by the
Parliament in the twenty second year of the Republic of India. The said Act
was subsequently amended by Defence of India (Amendment) Act, 1975 being
Act 32 of 1975 whereby concept of internal security was also introduced in
the said Act for enabling the authorities to exercise powers under the said
Act as amended and that is how the Act was thereafter known as Defence and
Internal Security of India Act, 1971. Section 23 of the Act as amended,
with, which we are concerned reads as under :
“23. Requisitioning of immovable property. – (1) Notwithstanding anything
contained in any other law for the time being in force, if in the opinion
of the Central Government or the State Government it is necessary or
expedient so to do for securing the defence of India. Civil Defence,
(internal security), public safety, maintenance of public order or
efficient conduct of military operations, or for maintaining supplies and
services essential to the life of the com-munity, that Government may by
order in writing requisition any immovable property and may make such
further orders as appear to that Government to be necessary or expedient in
connection with the requisitioning :
Provided that no property or part thereof which is exclusively used by the
public for religious worship shall be requisitioned.
(2) The requisition shall be effected by an order in writing ad-dressed to
the person deemed by the Central Government or the State Government, as the
case may be, to be the owner or person in possession of the property, and
such order shall be served in the prescribed manner on the person to whom
it is addressed.
(3) Whenever any property is requisitioned under sub- section (1), the
period of such requisition shall not extend beyond the period for which
such property is required for any of the purposes mentioned in that sub-
section.”
Section 24 deals with ‘Payment of Compensation’. It reads as under :
“24. Payment of compensation. – Whenever in pursuancesI of Sec-tion 23, the
Central Government or the State Government, as the case may be,
requisitions any immovable property, there shall be paid to the persons
interested compensation the amount of which shall be determined by taking
into consideration the following, namely:
(i) the rent payable in respect of the property or if no rent is payable,
the rent payable in respect of similar property in the locality ?
(ii) if in consequence of the requisition of the property the person
interested is compelled to change his residence or place of business, the
reasonable expenses (if any) incidental to such change :
(iii) such sum or sums, if any as may be found necessary to compensate the
person interested for damage caused to the property on entry after
requisition or during the period of requisition, other than normal wear and
tear :
Provided that where any person interested being aggrieved by the amount of
compensation so determined makes an application within the prescribed time
to the Central Government or the State Government, as the case may be, for
referring the matter to an arbitrator, the amount of compensation to be
paid shall be such as the arbitrator appointed in this behalf by the
Central Government or the State Government, as the case may be, may
determine :
Provided further that where there is any dispute as to the title to receive
the compensation or as to the apportionment of the amount of compensation,
it shall be referred to an arbitrator appointed in this behalf by the
Central Government or the State Government, as the case may be, for
determination, and shall be determined in accordance with the decision of
such ar-bitrator.
ExplanatIion. – In this section and in section 31, the expres-sion “person
interested” in relation to any property includes all persons claiming or
entitled to claim an interest in the compen-sation payable on account of
the requisitioning or acquisition of that property under this Act.”
Section 30 deals with ‘Acquisition of requisitioned property’. It reads as
follows :
“30. Acquisition of requisitioned property. – (1) Any immovable property
which has been requisitioned under section 23 may, in the manner
hereinafter provided, he acquired in the circumstances and by the
Government specified below, namely :
(a) where any works have, during the period of requisition, been
constructed on, in or over the property wholly or partly at the expense of
any Government, the property may be acquired by that Government if it
decides that the value of or the right to use, such works shall by means of
the acquisition of the property, be preserved or secured for the purposes
of any Government, or
(b) where the cost to any Government of restoring the property to its
condition at the time of its requisition as aforesaid would, in the
determination of that Government, be excessive having regard to the value
of the property at that time, the property may be acquired by that
Government.
(2) When any Government as aforesaid decides to acquire any immovable
property, it shall serve on the owner thereof or where the owner is not
readily traceable or the ownership is in dispute, by publishing in the
Office Gazette, a notice stating that the Government has decided to acquire
it in pursuance of this section.
(3) Where a notice of acquisition is served on the owner of the property
or is published in the Official Gazette under sub-section (2), then, at the
beginning of the day on which the notice is so served or published the
property shall vest in the Government free from any mortgage, pledge, lien
or other similar encumbrances and the period of requisition thereof shall
come to an end.
(4) Any decision or determination of a Government under sub-section (1)
shall be final, and shall not be called in question in any court.
(5) For the purposes of this section, “works” includes every description of
buildings, structures and improvements of the property.”
A conjoint reading of the aforesaid provisions indicates that the
requisitioning of immovable property under the Act is with a view to cater
to the emergent situations arising out of the currency of external and/or
internal emergency fcr which the President of India might have issued
relevant proclamations under the provisions of the Constitution of India.
Obviously, therefore, the powers conferred on the authorities functioning
under the Act are emergency powers. By their very nature they pertain to
emergent situations of a temporary nature and not of a permanent nature.
Under such emergent situations when power to requisition immovable property
is to be exercised under Section 23 of the Act the Legislature in its
wisdom has clearly indicated the limited sphere in which and purposes for
which such power could be exercised. An order under Section 23(1) during
such emergent situations can be passed – (a) either for securing defence of
India; (b) civil defence; (c) public safety; (d) maintenance of public
orders; (e) for efficient conduct of military purposes or for maintaining
the supplies and services essential to the life of the community. In the
context in which the power of requisition for maintaining supplies and
services essential to the life of the community is conferred by the Section
leaves no room for doubt that an order in exercise of such power can be
passed only under circumstances of grave urgency as contemplated by other
similar types of orders which could be passed under this very Section. It
must, therefore, be held that a competent authority exercising powers under
Section 23(1) can requisition any immovable property for the purpose of
main-taining supplies and services essential to the life of the community
if it is found that but for such an order the community would be deprived
of the concerned supplies and services essential for its life. It is per-
tinent to note that the impugned requisition order only recites that the
second respondent was of the opinion that it was necessary and ex-pedient
to requisition the appellants’ property, of which they were in possession
for maintaining supplies and services essential to the life of the
community. By a mere reading of the said order it is difficult to find out
as to what supplies and services were required to be maintained being
essential for the life of the community which necessitated the passing of
the said order. In the last paragraph of the order it is mentioned that
possession of the said property was to be delivered by 15th November 1976
to Director, Handlooms and Managing Director of the U.P. State Handloom and
Powerloom Finance and Development Corporation Ltd., Kanpur, U.P. The
affidavit filed by respondent no. 3 before the High Court indicated that
the said order was issued for the benefit of the third respondent-
Corporation to enable it to run a hand-loom showroom, which purpose was
considered expedient for maintain-ing essential supplies and service to the
life of the community. In the counter affidavit filed in the present
proceedings the third respondent has averred that the Corporation aims only
to give commercial and material help and guidance to the poor weavers and
to provide a ready market to them so as to protect them from unscrupulous
middlemen. Paragraphs 6 and 7 of this counter deserve to be noted in
extenso in this connection :
“6. I state that handloom cloth is manufactured by over 15 lakh poor
weavers in the State, with the Government and on a small scale basis. The
Corporation has the twin objective of providing jobs to the maximum number
or rural poor since the manufacture of handloom clothes is a labour-
oriented process and also to make cheap cloth available to the poor
consumers. To this end the Corporation has extended loans to the weavers to
the tune of Rs 80 lakhs and also supplied Yarn of the value of approx, Rs.
12 crores annually to them. The Corporation purchases the finished product
to the tune of Rs. 30 crore annually which is sold through selling-cum-
display shops and through exhibitions.
7, That it was only after examining the pressing necessity for a Handloom
Showroom an being satisfied that it was an essential requirement for the
community, the Respondent 1 and 2 requisi-tioned the disputed plot and
handed it over to Respondent No. 3. I state that the Respondent 1 and 2
were acting within the scope of the power conferred under Sec. 23 of the
Act and such a requisition falls squarely within objectives specified in
that Sec-tion.”
The learned counsel for the second respondent has broadly supported the
aforesaid contention put forward on behalf of respondent no. 3.
In the light of the aforesaid stand of the contesting respondents it
becomes clear that the impugned order saw the light of the day because the
third respondent-Corporation wanted to have a showroom for exhibit-ing the
wares manufactured by weavers with a view to giving a fillip to the sales
of these articles so that weavers working in rural areas could get an
assured market for their goods. Shri Sibal, learned senior counsel for the
appellants fairly stated that the said purpose may be treated as a public
purpose but the question is whether for such a purpose emergency powers
under Section 23 of the Act could be exercised. So far as this question is
concerned, in our view, the impugned order cannot be supported under
Section 23. If requisition order is said to have been justifiably issued by
the second respondent for maintaining supplies and services essential to
the life of the community it must be shown that but for passing of such an
order that community would be deprive of essential supplies and services
and its very life would get adversely affected. Even if the third
respondent-Cor-poration does not run any showroom for exhibiting handloom
wares manufactured by rural weavers, all that may perhaps happen is that
the weavers may not be able to get their goods easily sold in the market or
may not have a good deal of customers. But that would not mean that com-
munity or any part of it would be deprived of essential supplies and
services. It cannot be urged with any emphasis that if the goods manufac-
tured by rural weavers are not property marketed the community as a whole
would be deprived of essential supplies and services. Without the use of
such goods manufactured by rural weavers the community can comfortably
exist and survive or in any case its existence would not come in any
jeopardy. Reliance was placed by Shri Altaf Ahmed, learned Addi-tional
Solicitor General, on a decision of this Court in the case of Parvej Aktar
and Others v. Union of India and Others, [1993] 2 SCC 221. But the said
decision is also of no help to him for the simple reason that this Court in
the said decision had to consider entirely a different question as to
whether the reservation of articles for exclusive production by handloom
industry under the provisions of Handlooms (Reservation of Articles for
Production) Act, 1985 was violative of Article 14 of the Constitution of
India. It was held that reservation of articles under the Act does not
create any monopoly in favour of handloom industry. It was also observed
that handloom industry is the biggest cottage industry in the country and
is next only to agricultural sector in providing rural employment. The Act
of 1985 was enacted for the protection of the interests of the handloom
weavers, mostly concentrated in rural areas. They are pitted against a
powerful sector, namely, the mills and the powerloom. As such, they face
unequal competition. The protection has been given by the Government to
handloom weavers because the livelihood of handloom weavers is threatened
due to the production of all types of items and varieties by the powerloom
industry. The handloom weavers are economically very poor and will have no
alternative employment in the rural areas unless protected through
reservation of varieties for them. The reservation or-ders are for the
continued employment of the handloom industry and are in the larger public
interest. The restrictions are not only reasonable but also fully
justified. We fail to appreciate how the said decision can be pressed in
service for supporting the impugned requisition order under Section 23 of
the Act. Section 23 is not enacted for guaranteeing or providing any
continuously lucrative market for the handloom wares manufactured by rural
weavers. The impugned order has to be judged in the light of the express
provisions of Section 23 and not dehors them. In the light of the stand
taken by the respondents for justifying the impugned order, it has,
therefore, to be held that however laudable the object may be, of seeing
that the economic condition of rural weavers in handloom industry is
improved, the said object for which a showroom has to be constructed on the
lands in question would not justify the respondent-authority to invoke
powers under Section 23 as the said object would fall short for the
requirement envisaged by the said Section for exercise of such power.
Provision for such showroom or its absence will have no impact on the
maintenance of supplies and services essential to the life of the com-
munity as such. It is difficult to appreciate the reasoning adopted by the
Division Bench of the High Court in the impugned judgment that these shops
and showrooms are intended to be used by the State obviously for extending
help to a particular class of small and cottage industry of U.P. involving
poor weavers by protecting them from exploitation by middle traders and by
marketing their products directly to the public through these shops and
showrooms and therefore, establishment of such shops and showrooms had a
nexus with the maintenance of supplies and services essential to the life
of the weaving community. Even assuming that weaving community is a part of
the community as a whole in the absence of such showrooms the weaving
community cannot be said to have been deprived of any essential supplies or
services. Nothing was required to be supplied to them by having such a
showroom. On the contrary the showroom was to enable the weaving community
to supply their goods more effectively and lucratively to their customers
being other part of the community. It must, therefore, be held that such an
object underlying the impugned requisition order had no nexus with the
maintenance of supplies and services essential to the life of the community
and was totally dehors the provisions of Section 23. Consequently the
impugned requisition order must be held to be ultra vires of Section 23,
unauthorised and incompetent.
One additional aspect for challenging the said order was pressed in service
by Shri Sibal, learned senior counsel for the appellants. He sub-mitted
that in any case the impugned requisition order was for a purpose which was
of a permanent nature, namely, to have showrooms and shops for respondent
no. 3 Corporation for being located on the land. That for such a permanent
or quasi-permanent purpose even assuming it to be a public purpose,
requisitioning of premises could not be resorted to and the said
authorities if at all could have resorted to the power of acquisition of
the premises. In short it was contended that requisition of premises could
be done only for a temporary purpose for a temporary period and not for a
permanent purpose requiring a prolonged existence of such an order. We
shall now deal with the said additional contention.
It is no doubt true as laid down by a Constitution Bench of this Court in
the case of Grahak Sanstha Manch and Others v. State of Maharashtra, [1994]
4 SCC 192 that the requisition of premises under Bombay Land Requisition
Act, 1948 could be made even for a permanent public purpose. However the
said decision was rendered in the light of the express provisions of Bombay
Land Requisition Act, 1948 which death with requi-sitioningI of a premises
for a public purpose while in the present case the requisition of premises
is contemplated to be resorted to during the internal and external
emergency which resulted in the enactment of the Act. Therefore, by the
very nature of the parent Act under which this power is being exercised
situations must be of such grave and urgent nature that they would compel
exercise of such emergent powers. Consequently it could not be said that
power to requisition under Section 23(1) of the Act for maintaining
supplies and services essential to the life of the community could be
resorted to for catering to any permanent public purpose con-templated by
the said provision. Sub-section (3) of Section 23 also is a pointer in the
same direction. It has clearly enjoined that period of such requisition
shall not extend beyond the period for which such property is required for
any of the purposes mentioned in sub- section (1). Consequently it must be
held that orders under Section 23(1) of the Act could be passed only for
emergent purposes contemplated by the provision and they are by their very
nature expected to be of limited duration. A perpetual emergency is not
contemplated by that Act or the Presidential notification under which it
got its birth. Section 30 of the Act is also relevant in this connection.
It clearly lays down that even during emergency when such temporary
requisition orders are passed if the requisitioning authority is shown to
have spent large amounts on the requisitioned property under circumstances
mentioned in the said Sec-tion the said property may be acquired by the
Government. It must, therefore, be held that in the scheme of Section 23 of
the Act the orders of requisition of immovable properties must necessarily
be not of a permanent nature but must be of limited duration commensurate
with the continuance of the emergent situations and the needs which
requires such orders to be passed and continued for the requisite period of
such emergent need for which such orders are passed. As the impugned order
of requisition is as old as of 1976 and the respondents have persisted with
the said order for all these years spread by now, over more than two
decades it has to be held that such indefinite requisition of premises is
contrary to the very scheme of Section 23 and even on that ground the order
would fall foul on the touchstone of Section 23 itself. Before parting with
this discussion we may refer to a decision of a Division Bench of the Patna
High Court in the case of M/s. Speedcrafts Pvt. Ltd. v. The Dist.
Magistrate and Others, AIR (1976) Patna 129. Inter-preting these very
provisions of the Act it was held by the Division Bench in the said case
that if the public purpose for which a property is acquired is not of a
temporary character resort cannot be had to the provision of the Section
23. In the context and the settings of the relevant provisions of the Act
the aforesaid view of the Patna High Court is well sustained. We have
perused the departmental file and find that the Collector had agreed with
the opinion that the property could be acquired for the purpose of
constructing the showroom and not requisitioned, as the purpose is “outside
the ambit of Section 23”. Why then did the department still proceed to
“requisition” and not take recourse to “acquisition” proceedings is not
intelligible. The first point is answered in the negative by holding that
the impugned order of requisition was not validly made under section 23 of
the Act.
Point No. 2
So far as this point is concerned we have to keep in view the fact that the
original Lease Deeds gave absolute option to the lessee to get the leases
renewed for a further period of 30 years each time till the maximum ceiling
of 90 years of the duration of the original lease was reached. As noted
earlier both the leases had come into force from 1920 and 1932 respective-
ly. Therefore, both these leases could validly be extended at the absolute
option of the lessee up to 2010 and 2022 A.D. respectively. There is
nothing on the record to show that extension of leases was ever refused by
the respondents or the leased premises were resumed, being Nazul lands. On
the contrary there is evidence on the record to show that the Nazul rent
was being demanded and recovered from the appellants by the Municipal
authorities of Kanpur from time to time. In any case the date on which the
impugned requisition order was passed, that is, on 29th October 1976, both
the leases were current. The efficacy of the impugned order has to be
examined in the light of the fact situation that obtained on the date of
the impugned order. By that time the original lessee had sufficient
interest in the leases which could be validly transferred to the present
appellants and that is exactly what has been done by the original lessee.
It could not be said, therefore, that the appellants had no locus standiI
to challenge the impugned order of requisition when they were having un-
expired lease period with them entitling them to remain as lessees under
validly subsist-ing leases of these two Nazul lands. Even though the lands
were Nazul lands till the leases were legally terminated by the
authorities, the leasehold interest of the original lessee and the
appellants who are successor-in-in-terest of the original lessee remained
in tact. Whether the respondents can validly terminate the leases during
their extended periods or whether these Nazul lands which were subject-
matter of leases cold be resumed by the authorities is a question with
which we are not concerned and, therefore, we do not express any opinion
one way or the other on this question. For the present purpose, it is
sufficient to indicate that the appellants at the time when the impugned
order of requisition was passed and even till have sufficient locus siandi
to challenge the said order and to claim restoration of their leasehold
rights in the said lands and the possession thereof. Point No. 2 is
answered in the affirmative in favour of the appellants and against the
respondents.
Point No, 3
So far this point is concerned it has to be noticed that the impugned order
was passed during the currency of proclamation of emergency, both internal
and external, and it sought its efficacy through the parent Act which has
since long expired. Shri Altaf Ahmed, learned Additional Solicitor General,
however, vehemently submitted that as laid down by Section 1 sub-Section
(3) of the Act despite the expiry of the Act after six months from the
cessation of the operation of proclamation of emergency and which event has
taken place since long, the previous operation of the Act which was holding
the field at the relevant time was not affected. The said provision reads
as under :
“1. (3) It shall come into force at once and shall remain in force during
the period of operation of the Proclamation of Emergency and for a period
of Six months thereafter, but its expiry under the operation of this sub-
section shall not affect –
(a) the previous operation of, or anything duly done or suffered under,
this Act or any rule made thereunder or any order made under any such rule,
or
(b) any right, privilege, obligation or liability acquired, ac-crued or
incurred under this Act or any rule made there-under or any order made
under any such rule, or
(c) any penalty, forfeiture or punishment incurred in respect of any
offence under this Act or any contravention of any rule made under this Act
or of any order made under any such rule, or
(d) any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, for feiture or punishment
as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted,
continued or enforced and any such penalty, forfeiture or punishment may be
imposed as if this Act had not expired.”
It is difficult to appreciate how this contention can be of any avail to
the contesting respondents. All that this provision shows is that if a
valid order has been passed under Section 23 at the time when the Act along
with the said Section was operative, merely because the parent Act expired
by efflux of time the efficacy of such a valid order would not get whittled
down only on that score. But that does not mean that the validity of the
said order could not be examined on its own with a view to finding out
whether the said requisition order under Section 23 was validity passed or
was a still-born one and whether in any case such an order can be permitted
to continue indefinitely and is to be treated as almost immortal. It is
this question which is on the anvil of scrutiny before us and it cannot be
effectively answered by the respondents in the light of the aforesaid
saving clause.
We, therefore, will have to examine the efficacy of the impugned order from
the point of view of its prolonged duration uptill now which as seen
earlier had been spread over more than two decades from the date on which
it got its birth on 29th October 1976. For deciding this question we will
assume with the respondents, for the sake of argument, that on the day on
which it was passed it was validly passed under the provisions of Section
23. Even then the moot question still remains whether such an emergency
order of requisition which might be justified in those days when it was
passed could now be permitted to continue indefinitely. For answering this
question we may usefully refer to the decision of the Constitution Bench of
this Court in the case of Grahak Sanstha Manch (supra). The Constitution
Bench has in terms laid down that even though a requisition order can be
issued for a permanent public purpose under the provisions of Bombay Land
Requisition Act, 1948 it cannot be continued indefinitely. “We may usefully
refer to the relevant observations made in this connection by Bharucha, J.
Speaking for the majority of the Constitution Bench, in paragraphs 16 and
17 of the Report :
We find ourselves in agreement with the view taken in the cases of
Collector of Akola and Jiwani Kumar Paraid that the purpose of requisition
order may be permanent. But that is not to say that an order of
requisitioning can be continued indefinitely or for a period of time longer
than that which is, in the facts and circumstances of the particular case,
reasonable. We note and approve in this regard, as did this Court in jiwani
Kumar Paraid case, the obser-vations of the Nagpur High Court in the case
of Mangilal Karwa v. State of M.P., which have been reproduced above. That
the concept of requisitioning is temporary is also indicated by the Law
Commission in its Tenth Report and, as pointed out earlier, by the terms of
the said Act itself, as it originally stood and as amended from time to
time. There is no contradiction in concluding that while a requisition
order can be issued for a permanent public purpose, it cannot be continued
indefinitely. Requisitioning might have to be resorted to for a permanent
public purpose to give an example, to tide over the period of time required
for making permanent premises available for it. The concepts of acquisition
and requisition are altogether different as are the consequences that flow
therefrom. A landlord cannot, in effect and substance, be deprived of his
rights and title to property without being paid due compensation, and this
is the effect of prolonged requisi-tioningI. Requisitioning may be
continued only for a reasonable period; what that period should be would
depend upon the facts and circumstances of each case and it would
ordinarily, be for the Government to decide.
For the aforesaid reasons, we hold that the decision in H.D. Vora case does
not require reconsideration. We, however, do not approve the observations
therein that requisition orders under the said Act cannot be made for a
permanent purpose. We make it clear that the said decision does not lay
down, as has been argued, a period 30 years as the outer limit for which a
requisition order may continue, The period of 30 years was mentioned in the
decision only in context of the date of the requisition order there
concerned. An order of requisition can continue for a reasonable period of
time and it was held, as we hold, that the continuance of an order of
requisition for as long as 30 years was unreasonable.”
We have already shown that in the context of the emergency provision of the
Act in question the powers which could be exercised for requisitioning
properties under Section 23 by their very nature could not be utilised for
requisitioning immovable properties for an indefinite period. Such
requisition virtually amounts to acquisition. In the facts and
circumstances of this case it must be held that when years back the parent
Act had ceased to operate and the internal and external emergency decla-
rations had stood withdrawn, now obviously there is no rhyme or reason why
such a requisition order, which by efflux of time has become stale and its
very purpose has become obsolete, should be permitted to be continued any
further and the appellants’ properties should be still permitted to remain
requisitioned and in possession of the respondents. In the facts and
circumstances of the case, therefore, it must be held that continued requi-
sition of the appellants’ leasehold premises by now at least must be
treated to have become unreasonable and it would necessarily indicate abuse
of power and a colourable exercise thereof. It must be held that the
impugned requisition order even assuming that it was valid and kicking and
was not still-born when it was passed in 1976, by now it has lost its
efficacy and has become a dead letter, in the prese , set of circumstances
obtaining today. Even on this ground the continuance of the impugned
requisition order cannot be sustained and has to be put an end to. The
third point is also, therefore, answered in the affirmative in favour of
the appellants and against the respondents.
In this connection we may also note that it is not the case of the
respondents that now they require to acquisition the requisitioned premises
on a permanent basis for the purpose for which they were initially requi-
sitioned, by exercise of powers under Section 30 of the Act. In fact the
said provision could have been pressed in service by respondent no. 3, if
at all, during the currency of the Act which provision is obviously not
available to them now. Non-exercise of powers under Section 30 for
acquiring these requisitioned properties during the time the Act was in
force itself shows [ that even according to the respondents the Government
did not require the said requisitioned land to be acquired for its purposes
or that it was felt that the cost of restoration of the requisitioned
property by the Govern-ment would be excessive. During the pendency of
these proceedings this Court had earlier directed by order dated 21st
September 1984 that status quo will remain so far as the construction in
any part of the open space is concerned. That status quo was continued by
an order of 29th October 1984. However by a latter order dated 9th February
1987 while granting special leave this Court had refused to grant stay but
had made it clear that the respondents will not be entitled to claim the
benefit of Section 30 of the Defence and Internal Security of India Act,
1971 in the event of the appeal being allowed. Any further construction
effected by the respondents will not be pleaded as defence during the
hearing of the appeal. Under these circumstances, therefore, there cannot
remain any valid defence for the respondents against the restoration of
possession of the requisitioned premises to the appellants once the
impugned order of requisition is found to be invalid in view of our
findings on the aforesaid points for determina-tion.
In the result the appeal is allowed. The judgment and order of the High
Court are set aside. The writ petition filed by the appellants before the
High Court is allowed. The impugned order of requisition of the premises in
question dated 29th October 1976 is quashed and set aside. The respondents
are directed to restore the possession of these requisitioned properties
forthwith to the appellants by clearing off whatever construction may be
existing on spot and making available the requisitioned properties in their
original form and shape to the appellants. The respon-dents are directed to
comply with this order within eight weeks from the date of receipt of copy
of this order at their end. In the facts and circumstances of the case
there will be no order as to costs,