ORDER
Balakrishna, J.
1. This petition is directed against the proceedings relating to the acquisition of 9746 sq. metres of land in premises Nos. 6 and 7, Cubbon Road, Civil Station, Bangalore.
2. The following are the essential facts of the case:
Premises Nos. 6 and 7, Cubbon Road, Civil Station, Bangalore, belongs to a Wakf called “Mohammed Moosa Sait Wakf”. It is stated that most of the beneficiaries of the Wakf are widows and orphans and persons in financial difficulties and who depend on the income of the Wakf. The said premises had been leased to one A.B.V. Gowda who has since deceased survived by his widow Yashoda Gowda, a daughter and a minor son. Permission for the said lease was granted by this Court in C.R.P. No. 713/1974 dated 25-7-1974.
3. The Notice dated 19-1-1987 was issued by respondent No. 1 purported to be under Section 7(1) of the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952) to the petitioner in respect of 9746 sq. metres of land referred to earlier. The petitioner preferred objections to the said Notice on 22-5-1987. It is stated that the petitioner could not know the result of the proceedings after preferring the objections and therefore, filed a Memo on 19-11-1987 before respondent-1 requesting for a hearing before orders were passed. The Counsel appearing for the petitioner before the concerned authority also preferred an application for setting aside the ex parte order passed on 27-11-1987 and for consideration of the objections already filed by the petitioner in response to the Notice received by the petitioner under Section 7(1) of the Requisitioning and Acquisition of immovable Property Act of 1952 (hereinafter referred to as ‘the Act”). It is also stated that the Muthuvalli of the Wakf is an aged, sickly, diabetic patient residing at Madras. A copy of the application was made by the petitioner and a reply was received from respon-dent-1 dated 7-12-1987 and thereafter, another copy application was filed in order to obtain a copy of the order dated 7-9-1987. The petitioner filed a rejoinder on 21-2-1987 drawing the attention of respondent-1 to the provision of Section 12 of the Act to be read along with Order 9 Rule 13 of CPC and also requested an opportunity of hearing before orders were passed. At this stage, the petitioner received a Notice dated 16-3-1988 which was received by the petitioner actually on 22-3-1988. One more copy application was made by the petitioner in order to find out the nature of the orders passed by respondent-1. Even after a lapse of considerable time since copies were not received, the petitioner and his Advocate prevailed upon the authorities and were able to secure a copy of the order-sheet and order dated 7-9-1987. The corresponding entry of the remarks contained in the order sheet dated 7-9-1987 reads thus:
“Case called – Neither the objector nor their Advocate present. Enquiry closed, Issue ‘J’ Notice.”
The petitioner aggrieved by the said order has challenged the validity of the same on several grounds.
4. The learned Counsel appearing for the petitioner contended that the impugned order dated 7-9-1987 is not a speaking order and the said order does not refer to the objections preferred by the petitioner by giving findings on them. Another contention is that a reasonable opportunity of hearing was not afforded to the petitioner before the concerned authority proceeded to pass the impugned order. It was so contended that the impugned order is liable to be quashed for non-compliance with the mandatory requirement of law under the Act and in particular in the non-fulfilment of the mandate under Section 3(1) of the Act. The last contention urged by the learned Counsel for the petitioners is that the requirements of law for the purpose of acquiring and requisitioning property under Section 7(3)(a) & (b) of the Act have not been complied with.
5. On the other hand, the learned Government Advocate appearing for respondents-1 and 2 contended that requisition of the property in question took place as far back as 1943 under the provisions of the Defence of India Rules and what remained was only the acquisition part of the requisitioned property and therefore, proceedings continued with the issue of Notice under Section 7(1) of the Act are valid and a reasonable opportunity of hearing was afforded to the petitioner and the petitioner did not avail of the opportunity so provided as evident from the impugned order dated 7-9-1989. The substance of the argument of the learned Government Advocate is that the requirements of both Section 3(1) of the Act and other mandatory provisions leading to the impugned order followed by issue of Section 7(1) Notice are in consonance with the provisions of the Act and, therefore, the petitioner is not entitled to the relief claimed.
6. Similar contentions were submitted by the learned Additional Central Government Standing Counsel appearing for respondent-4. It was submitted by the learned Standing Counsel that the property in question came to be requisitioned in 1943 and continued to be so and, therefore, it could not be said that what ought to have been done under Section 3(1) of the Act has not been done.
7. The point for consideration is whether the impugned order deserves to be quashed for non-compliance with the mandatory provisions of Sections 3, 7(1) and (2) and 7(3)(a) and (b) of the Act. The other question is whether the impugned order is violative of the principles of natural justice.
8. It is not disputed that on 12-2-1982 a letter was addressed by the erstwhile Secretary to Government of Karnataka, Bangalore, to the Special Deputy Commissioner, Bangalore who was the Land Acquisition Officer instructing the Special Deputy Commissioner to initiate the land acquisition proceedings as per the provisions of the Requisitioning and Acquisition of Immovable Property Act of 1952 in supersession of earlier orders. Since this is the letter which initiated the acquisition proceedings, it wouId be necessary to reproduce the same:
“D.O.No.RD.155.AQB.80
Karnataka Govt. Secretariat,
Vidhana Soudha,
Bangalore, Dt. 12-2-1982.
Dear Sir,
This has a reference to acquisition of land in property No. 6 of 14 of Cubbon Road, Bangalore in favour of Posts and Telegraphs authorities.
I am desired to request you to initiate Land Acquisition proceedings as per the provision of RAP Act in supercession of earlier orders.
Further, since the premises is already determined vacant by the Special Deputy Commissioner, Bangalore as per Urban Land Ceiling Act, 1976, during the Land Acquisition proceedings, the Special Deputy Commissioner, Urban Lands may also be made a party.
With regards,
Yours Sincerely
Sd/-
This letter issued by a responsible authority of the State Government indicates in categorical terms that acquisition proceedings were directed to be initiated in accordance with the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952 superseding all earlier orders. For the purpose of ascertaining the commencement of the acquisition proceedings and also for the purpose of determining the question as to under what provisions of law the acquisition proceedings were initiated, this letter dated 12-2-1982 is of material relevance. The letter makes it self-evident that the order contained in the letter of 12-2-1982 gave a clear direction under the said letter that the land acquisition proceedings in respect of the land in question were to be commenced in accordance with the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952. The contention that the requisitioning had been completed by virtue of the order passed on 13-4-1943 under the Defence of India Rules which were then in existence needs to be examined because, the proceedings of acquisition under the Act in force as on 12-2-1982 are under Requisitioning and Acquisition of Immovable Property Act, 1952. Under Section 24 of the said Act, it is provided as follows:-
“Repeals and Savings – (1) The Requisitioned Land (Continuance of Powers) Act, 1947, the Delhi Premises (Requisition and Eviction) Act, 1947 and the Requisitioning and Acquisition of Immovable Property Ordinance, 1952 are hereby repealed.
(2) For the removal of doubts, it is hereby declared that any property which immediately before such repeal was subject to requisition under the provision of either of the said Acts or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under Section 3 of this Act, and all the provisions of this Act shall apply accordingly….”
It is clear from these provisions that it is only property which immediately before the repeal that was subject to requisition under the provisions of the Requisitioned Land (Continuance of Powers) Act, 1947 or the Delhi Premises (Requisition and Eviction) Act, 1947 or the Requisitioning and Acquisition of Immovable Property Ordinance, 1952 are saved on the commencement of the Requisitioning and Acquisition of Immovable Property Act, 1952 for the purpose of property deemed to be requisitioned under Section 3 of the said Act and only then the provisions of the said Act shall apply. If the intention of the Parliament was to save the requisitioning effected under the Defence of India Rules obviously a reference would have been made to the said Rules under Section 24 of the Act. The question is whether any such ordinance existed at the relevant point of time.
9. The Requisitioned Land (Continuance of Powers) Ordinance, 1946 (Ordinance No. XIX of 1946) provided in Section 3 thereof that “notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder, all requisitioned lands continue to be subject to requisition until the expiry of this ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient, provided that the appropriate Government may at any time release from requisition any requisitioned land”. A plain reading of Ordinance No. XIX of 1946 makes it amply clear that the property in question which was admittedly requisitioned under the Defence of India Act, 1939 and the corresponding Rules thereunder, continued to be subject to requisition despite the repeal of the Defence of India Act. It is not disputed that the property was not released from requisition. The Requisitioned Land (Continuance of Powers) Act, 1947 was enacted and it replaced Ordinance No. XIX of 1946. The Requisitioning and Acquisition of Immovable Property Ordinance, 1952 came into effect on abrogation of the 1947 Act. Ultimately the Requisitioning and Acquisition of Immoveable Property Act, 1952 succeeded the 1952 Ordinance.
10. Relevant for the purpose of the instant case is Section 24(2) of the 1952 Act which provides that the property became deemed to be the property requisitioned under Section 3 of the Act. Similar to Ordinance No. XIX of 1946 which provided for the continuation of the property, and analogous to the subsequent provisions of the 1947 Act, the 1952 Act continued the requisition. In the instant case, requisition of the immoveable property having become an accomplished fact under the Defence of India Act and the Rules thereunder, with the arrival of the 1952 Act, acquisition of the requisitioned property came to be initiated under Section 7 of the 1952 Act. Thus, the letter dated 12-2-1982 referred to earlier came to be addressed for acquisition, of the property in question. Hence the argument that the requirements of Section 3(1) of the 1952 Act have not been satisfied cannot be accepted. The requisitioning was carried out under the Defence of India Act and the acquisition was commenced under the 1952 Act of the requisitioned property carrying legal warrant under Section 24(2) of the 1952 Act. Hence, the contention fails.
Section 7 of the Act reads as follows:-
“7. Power to acquire requisitioned property-
(1) Where any property is subject to requisition, the Central Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in pursuance of this Section;
Provided that before issuing such notice, the Central Government shall call upon the owner of, or any other person who, in the opinion of the Central Government, may be interested in, such property to show cause why the property should not be acquired, and after considering the cause, if any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Central Government may pass such orders as it deems fit.
(2) When a notice as aforesaid is published in the Official Gazette, the requisitioned property shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Central Government free from all encumbrances and the period of requisition of such property shall end.”
It is now necessary to see whether the requirements envisaged by Section 7 of the Act have been complied with by the petitioner. It is no doubt true in the instant case that a Notice under Section 7(1) of the Act has been served upon the petitioner. It is equally true that the petitioner has preferred objections to the said Notice. What remains to be seen is the manner in which the objections have been disposed of by the Competent Authority. Under the proviso to Section 7(1) of the Act, the Central Government may pass such orders as it deems fit subject to compliance with the mandatory conditions and they are that there should be a due consideration of the cause shown by the petitioner resisting acquisition and secondly, the right of audience to the petitioner. The words “after considering the cause, if any, shown by any person interested in the property”, connote the meaning that it is incumbent upon the authority passing the orders to apply its mind to the cause shown by the petitioner and form an opinion supported by reasons only after hearing the petitioner. In the instant case, even though it is stated that neither the objector nor the Advocate was present, there is absolutely no material to hold that there was a due application of mind by the Competent Authority and least of all an order supported by reasons. In fact, the order passed in the instant case is a silent order which would indicate that the authority had no reasons to disclose at all. This, I am afraid, is opposed to the principles of natural justice because, the impugned order which affects the petitioner’s legitimate interest with such consequences which compel the petitioner to seek appropriate legal remedy against the order, should disclose reasons which form the basis of the order. In other words, by passing a silent order, the petitioner’s right to know the reasons is defeated, and to that extent also I hold that natural justice is denied to the petitioner. The authorities are, bound to give reasons so that the party likely to be affected has an opportunity to know the circumstances in which an adverse order was passed and also to enable the party to seek appropriate legal remedy. I, therefore, hold that even the requirements which are mandatory as contained in the proviso to Sub-section (1) of Section 7 of the Act have been infracted.
11. Even assuming that the requirements of Section 7(1) and (2) of the Act have been complied with, there again remains more mandatory requirements which are to be found in Section 7(3)(a) and (b) of the Act. On examination of the records, I have no doubt in my mind that there is absolutely no compliance with the mandatory requirements of Section 7(3)(a) and (b) of the Act. The circumstances, which are envisaged in Section 7(3) (a) and (b) have not been proved to be in existence in order to warrant acquisition of the property of the petitioner. On this ground also, I hold that the acquisition is bad in law. Section 7(3) of the Act provides:-
“No property shall be acquired under this Section except in the following circumstances, namely:-
(a) where any works have, during the period of requisition, been constructed on, in or over, the property wholly or partially at the expenses of the Central Government and the Government decides that the value of, or the right to use, such works should be secured or preserved for the purpose of Government; or
(b) where the cost of restoring the property to its condition at the time of its requisition would, in the determination of the Central Government, be excessive and the owner declines to accept release from requisition of the property without payment of compensation for so restoring the property.”
Sub-section (5) of Section 7 of the Act lays down:-
“For the purpose of Clause (a) of Sub-section (3) ‘works’ includes buildings, structures and improvements of every description.”
There is no material on record to show the existence of any construction in or over the property put up at the cost of the Central Government either partly or wholly or that the right to use such works should be secured or preserved for the purposes of Government. There is no material either that the cost of restoring the property to its condition if any, is excessive in the opinion of the Government and that the owner declined to accept release from requisition of the property without payment of compensation for so restoring the property.
In the above circumstances, it has to be held that property in question is not amenable to acquisition.
12. In the course of the arguments it was brought to my notice that on earlier occasions, the same property was sought to be acquired and later on given up. Under Annexure-S, it is seen that there was a Gazette Notification issued in accordance with the provisions of subsection (1) of Section 4 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) in No. RD 419 AOB 74 dated 25th February 1975 for the purpose of acquisition of the land in question for the benefit of Life Insurance Corporation of India. Another Gazette Notification is apparent in Annexure-S which is a Gazette Notification of June 29, 1978 also being a Notification issued under Section 4(1) of the Act dated 15th June 1978 wherein the same land was notified for acquisition for the purpose of construction of Central Telephone Exchange Building, Bangalore. This acquisition also was abandoned later on.
13. It may be of relevance to recall that In W.P.No. 19323 of 1982 the same petitioner had challenged the legality of the acquisition proceedings of the same property under notice bearing No. LAQ.SR.227-11/78-79 dated 1-5-1982. In that Writ Petition, I find that the Central Government took the stand that the premises is under the occupation of the Union of India represented by General Manager, Bangalore Telephone by virtue of the requisition, eversince the year 1943 and that the requisitioning was according to an order dated 13-4-1943 under Rule 75(9)(1) of the Defence of India Rules. However, this Petition came to be allowed without going into the merits of the contentions which are similar to the one urged in this petition with an Order being passed on 24-6-1986, the relevant portion of which is extracted below:
“In the view which I am inclined to take it is unnecessary for this Court to examine merits and de-merits of rest of rival contention urged.
Proviso to sub-section (1) of Section 7 of the Act states that on a consideration of cause shown for desisting acquisition by persons interested, Central Government must pass orders as deems fit. Undisputedly, petitioner has filed his objections on 17-3-1982 and 20-3-1982 objecting acquisition on grounds mentioned therein, from records made available by Government Pleader, I find no order either of Deputy Commissioner or of Central Government deciding to acquire property in question, overruling or considering objections of petitioner. In other words there is no application of mind regarding objections raised as against acquisition. Consideration of objections is mandatory, without which, decision and other formalities to be complied with will only be a farce. In the absence of decision of concerned authority on this aspect, it is difficult to sustain impugned action including notice (Annexure-E) calling upon petitioner to surrender title deeds.
3. As a result, Writ Petition is partly allowed; Annexure-E, calling upon petitioner to surrender title deeds alone is quashed, retaining notification, dated 16-2-1982 intact, Land Acquisition Officer – first respondent is directed to decide the issue after providing an opportunity to petitioner and persons interested, in accordance with law. Rule made absolute.”
14. Thus, it could be seen that the question whether or not there was due compliance with the requirement of Section 3(1) of the Act was not gone into by the Court in the said Writ Petition. It can only be said that the proceedings which are now assailed before this Court are the continuation of the proceedings referred in the said Writ Petition. Even if a direction was issued by this Court in the said Writ Petition that consideration of objections is mandatory, acquisition without fulfilment of other formalities to be complied with, will be fallacious. The authorities have proceeded to pass the impugned order which cannot be described as reasonable since the order is devoid of reasons smacking of arbitrariness.
15. For the reasons stated above, I allow this petition and quash Annexure-G and H dated 16-3-1988 and 16-11-1987 respectively.
16. In the circumstances of the case, there will be no order as to costs.
17. The learned Additional Central Government Standing Counsel submitted that liberty should be reserved for the Competent Authority to take a fresh acquisition proceedings in respect of the property in question. 1 do not think that it is necessary for this Court to make any such observation since whatever statutory power that the Competent Authority enjoys under the law is always available to it to be exercised.