r oy 693A | , HD. VORA, ¥, Ya 0). STATE OF MAHARASHTRA & ORS...” >
February 22, 1984
~-. [P.N: BHAGWATI AND SApyasacu] MuKHARIL JE], doy Constitution of India 1950. Article 31 (2) & Seventh Schedule, List HH Entr y 2. Acquisition and requisition of property—Differences—What are.” NK Power of requisitioh-— When exercisable For a’ public purpose of transifor ye : ‘ character. : ‘ '
+ ie . Bombay Land Requisition, Act 1948 Section 6(4)(a)—Reguisition of residential , flat— Whether could continue ‘for an indefinite per ind--Tenant paying rent atrectly to landlord—Tenant whether becoiies direct tenant of ‘landlord — Whether requisition . E Aa oiler should set out explicitly the public: purpose. ;
. Practice and Procedures. Writ Peition~-Challenging order of re-guisttion of. flat 7 after a lapse of thitryyears— Whether maintainable. ; . Looe , The appellant applied 1 to. the Accomniodation Department of the Stare. Govern: ment for allotment of a flat. The State Governmentt, urned down the request but. requisitioned the flat by an order dated 9th April, 1951 under clause {a) of sub-section (4) of section 6 of the Bombay Land Requisition Act, 1948: This order of requisi- . tion, did not set out the public. purpose’ for which the flat was, requisitioned. The . 2 : Assistant Controller of “Acconimodation by an order dated 25th April, 1951 allotted . G ‘ the requisitioned flat to the appellant who entered into occupation and paid rent . & to the landlady from time ‘to time. but as he was irregular and ‘committed several * defaults the Controller .of Accommodation sought to terminate the allotment.
"The 3rd respondent, on 30th May, 1973 purchased the buj iding in which the H : Fequisitioned, flat was situated, and reQuested the State ‘Governm nt ‘lg , derrequisi- / Ss
AL
-tion the flat, take steps to evict the appellant, and hand over vacant Possession.
s
694 SUPREME COURT REPORTS {1984} 2 s.c.r.
‘ tion the flat, asthe allotment of the flat in favour of the appellant could not be said to be for a public Purposes. The State Government’ did hot pay any heed te this
; Fequest.
The 3rd respondent, thereupon filed a Writ Petition in the High Court challenging the validity of the order or requisition, contending that it, could not survive | for such a long-period of timé ahd that the State Government was therefore*
‘ bound to de-requisition the flat. The High Court allowed the Writ Petition and directed the State Government and the Controller of Accommodation to de-requisi-
In appeal this Court, it was contended inter alia on behalf of the appellant—
_ tenant that even if the order of requisition was invalid as having been made fora purpose other than a public purpose, the 3rd respondent was not entitled to challenge the order of requisition after a lapse of over 30 years and that the Writ Petition should have -been dismissed by the High Court. ; “, foe : '
Dismissing the Appeal,
N
- ¥r ~
_ HELD :.1. The order-of requisition even if it was valid when made, ceased to
"be valid and sist after expiration ofa reasonable period of time. What period of time must be regarded as reasonable for the continuahce of an order-of requisition depends on the facts and circumstances of each case, [700 H]
‘ ‘ , , me
Tn the instant case, the order of requisition was made as far back as 9th
_ April 1951 and’even if it was made for housing a homeless person, and. the appel- lant at that time;.fell withia that category, it cannot be allowed to ‘continue for such an inordinately long period as thirty years. [700 G] *
“
2. Requisitioning must be made fora public purpose, and so long az there is a public purpose for which an order of requisition is made, it would be valid irrespective of whether such public purpose is recited in the order of tequisition or not. But if the order is challang.d, the State Goyernment would have to satisfy the Court by placing the necessary, facts showing the pubic purpose for which the erder
. of requisition was made. [698 B,G} |
3. There is a basic and: fundamenial distinction recognised ‘by law between requisition and acquisition. The Constitution itself in Entry 42 of List HI of Seventh Schedule makes,a distinction between acquisition and requisitioning of <property. The original Article 31 clausé (2) of the Constitution also recognised this distinction ary ‘ * '
° .
aia
'- -
. rity. But the contept of requisition involves merely taking of ‘‘domain or control
Maa! . . tN .
ae H.D. VORA ». “MAHARASHTRA . 7 - 95,
“~ between compulsory acquisition and requisition ‘of property. “The two concepts, a AL one of requisition and the other of acquisition are totally d d istinet aind independent. a
Acquisiting means the acquiring of the entire title of the expropriated owner wiiatever the wature and extent of that title may be. The entire bundle of rights which
; was vested in the originat holder passes on acquisition to the acquirer leaving nothing * £0 the former. The concept of acquisition as an air of permanence and finality in, that there is a transference of the title of the original holder to the acquiring autho-.
over property without acquiring rights of ownership” and must. by its very nature be of temporary duration. [699 F-H]
: a . . . eNO
4. Ifthe Government wants to take over the property foran indefinite period :
# : of time, the Government must acquire. ‘ the-property but it cannot use the power. of _ Cc ‘ requisition for achieving that object. The power, of requisition is exerciseable by ‘the Government only for a “public Purpose which is of a transitory character. If the public purpose for which the premises are required is of a Perennial or permanent
; character. from the very inception, no ‘order can. be passed requisitioning the premi- ses and in such a case the order of requisition, if passed, would a fraud upon the . Statute. What ever be the public purpose for which'an order, of requisition made, it. . D.
* 7s by its very nature temporary in character‘and it cannot endure for an, indefinite | period of time.. The period of time for which an order of requisition may be contisnued cannot be-an unreasonably long period such as thirty years and it must therefoie
~ be held, that the order of requisition, ever if valid when made, ceased to be valid and effective. The Writ Petition challenging the order of requisition after a. lapse of over thirty years was therefore maintainable. [700 C-F, 701° Aj
' 5,. The appellant was an allotiee of the flat under the order of requisition and ‘
‘he was liable to pay compensation for the use and occupation of the flat to the State
Government and the State Government was in its turn liable to pay compensation "
‘for the requisitioning of the flat. If, instead of. the appellant paying’ ‘compensation to the State Government and, the State Government making payment of an identical E amount to the owner, the appellant paid directly to. the owner with the express or:
implidd assent of the State Government, the order of requisition could not cease | to be valid and effective. Tt did not " hatter whethér the appellant described - the | ~
“amount paid by him to the owner as rent, because whatevet was.done by him was under the ordet of requisition and $0 long as the order of requisition stood,. his pos- session of the flat was atttibutable ° only to the order of requisition and: ‘no pay- « ‘G ment ofan amount described as rent could possible alter the nature of his occu pation ‘of the flat or make‘him a tenant in respect of the flat. [701 F-H]
é ‘oe . . 1 reo
_ State of. Bombay v. Bhanji Manji & Anr. 1955) 1 S.CR. 7; Chiral’ oO H
"ease [19501 SCR. 869; referred to.
. - 4 . “ ~
“4 .
- so . . ;
: 696 . SUPREME courRT REPORTS . [1984] 2 SCR.
, ~. : a oe Cit [Aronia Yursspicion Civil | Appeal No. 1212 of 1984,
Appeal by Special leave fr rom the Judgment and order dated .
the.20th October, 1983 of the Bombay High Court in W.:Appeal
. No. 7719 of 1983.
t
P.R. Mridul, G. Vishwanath & & Parijat Sinha, for the Appellant.
Ram Jethmalani & Soli J. Sovabjeo, M. N. Shroff, Telegancar
& & B. V. Desai, for the Respondents,
The sien of the Court was delivered by
Buacwari, J. Special Leave ‘Granted. é po This appeal by special leave raises a short.question of law as to whether an order of requisition of premises can be continued for an indefinite period of tinfe or it Taust necessarily be of temporary duration. The ‘facts giving rise to this appeal are few’ and may be briefly Stated a as follows :
%
“* One Rukmanibai was the owner of a building bearing | House (
No. '65, Police Station Road,. Ville’ Parle West, Bombay. The ground floor of this building ‘comprised ofa. flat whieh was in the © _ occupation of one N.C. Shah as a tenant and’ since N.C. Shah: was going to vacate the flat, Rukmanibai gave intimation of the proposed vacancy to the State Government: and requested the State Government to allot the premises to the appellant who WwaSq her nearest
‘relative. The appeliant also addressed” a letter dated 12th March .
1951 to the Chief.Officer of the Accommodation. Department of the Government of Bombay requesting that ‘he should be allotted the flat which was going to be vacated by N.C. Shah. It appears
_ however that the request of the appeallant was turned down by the " State Government and ultimately the flat was requisitioned by an -
7 v4 order dated 9th Aptil 195! made Y the State Government in exer- ~
L ty a a
=
“oy
.. ss t %
_cise of the powers conferred nader clause (a) ‘of sub-section (4) of section 6-of the Bombay Land Requisition Act; 1948. This order of requisition did not set out the public purpose for which the. fat “was «requisitioned. Now curiously enough, though it was decided
'-by the State Government not to allot-the fat to the appellant and his application: for allotment was specifically rejected, the Assistant fContiolier ‘of Accommodation passed an order on 25th April 195) - alloting the, requisitioned ‘fat to’ the appellant and pursuant-to the — order of allotment, the appellant entred into occupation of the flat.- The’ appellant - thereafter” paid rent to Rukmanibai from time to time but the payinent of rent wes very irregular and the appellant committed several defaults~ in. payment of rent with the result that _ not less than seven orders had to be passed by ‘the. Aécommedation
‘Department of the Government of Bombay directing the appellant. - ‘to vacate the. flat because his chronic defaults. Uitimately, however, each time no .action for eviction was taken by the Controller of Accoriinodation, presumably because the appellant must haye paid” up the rent. It is significant t6 note that in the year 1964 the’
* -appellent: requested the Controller of: ‘Accommodation to derequistion,
’ the flat and to allow him to become direct tenant. of Rukmani’ Bai but his application was rejected by letter dated 25th March 1964.
The’ appellant also’ thereafter in the year 1979 applied to the.
. Controller of Accommodation: for sanction ; _to erect a kitchen - platform in the flat but this application was turned down by a Jetter dated 20th March 1979 addressed by’ the Controller of Accommodation. The appellant throughout. this period continued: to occupy the flat ‘as an allottee under the order of réquisition .and paid rent to
>
Rukmanibai from time ‘to time, though, irregulary. NX hy
* an ~~. --
The building i in which the - requisitioned flat. was ‘situate, was
’ purchased by the 3rd respondent from Rukmanibai on 30th’ May.
1973, The 3rd.respondent, after purchase of the building, requested the State Government to derequisition : ‘the flat~ inasmuch as
“_, the attotment of the: fat in favour of the appellant-could not be for a public’ purpose. “The ‘State Government did not pay any. ~heed to this request of the-3rd respondent ‘with the tesult.that the
3rd respondent was constrained io ‘file writ petition ‘No. 1210 of. 1980 in the High Court ‘of Bombay ‘challenging the: validity of the order of requisition and coniending that it could not ‘survive for such a. long period of time and the State Government was -
‘therefore bound to derequisition ‘the flat.
'
’ *
H.D. VORA’ MAHAR. \SHTRA (Bhagat J. ) - oT o
698" SUPREME COURT REPORTS [1984] 2 8.C.R. A. One of the grounds on which the validity of the order of requisition was challenged: was that the order of requisition did not set out the public purpose for which it was made. This ground of challenge was negatived by the High’ Court and, in our opinion, rightly, because it is’ Not necessary that the order of requisition - must explicitly set out the public purpose for which it is made. B The only requirement of the law is that the requisitioning must . \ be made for a public-purpose and so long as there is a public purpose for which: an order of requisitidn-is made, it would be
‘valid irrespective whether such public putpose is recited in the order of requisition or not. It has, in fact, béen so held by this Court --
‘in State of Bombay v. Bhanji Munji & Anr.™ ? where Bose, J. speaking C * on behaif.of the Court observed :
. ao
“Tn our opinion, it is not necessary to set out - x the purpose of the requisition in the order. The Lo desirability of such a course is obvious because when p ° _ it is not done,proof of the purpose must be given in other. ways and that exposes the authorities to the kind of charges we find here and to the danger that the courts will consider them well founded. But in. _ itself an omission to set out the purpose in the order . is not fatal so long as the facts are established to the - E . " satisfaction Of the court in some other way.”
, .
" The order of requisition could not therefore be successfully ”
attacked on the ground that it did not set out the public purpose for which it was;made. But, as pointed out by Bose, J. i the above’ - dassage quoted from this judgment in Bhanji Munji’s case (supra), F the State Government would have to show that the order of requisition was made for a public: purpose and-the necessary facts showing | the public purpose for which the order of requisition was made would . have to be dstablished by the State Government to the satisfaction -of the court. The High Court held inthe present case that no ‘material was placed. before-it to show what was the public purpose G for which the order of réquisition was made and in fact, there was’ no denial on the. part of the State Government or the appellant of the averment made on behalf of the 3rd respondent that the appellant “4° was neither a government servant hor a homeless.person. This view taken: by the High Court appears to be well-founded and it is not
(1) [1955] 1 S.C.R. 777, 6
HD. VORA Y. _ MAHARASHTRA (Bhagwati, f) 699 ;
ae possible to hold on the material placed before us that the order of A requisition | was made for a public purpose. oo
.? +
*- But it was contended on -behalf of the appellant that even * if the order of requisition was invalid as having been ‘made for a " purpose other than ‘a public purpose, the “3rd respondent was not. -B , entitled to challenge the same aftet-a lapse of over 30 years and the : > 3.» writ petition should therefore have been dismissed by the High Court.. ~ ' Now if the ‘only . ground’ on which the -order of - requisition” was | _-— challenged-in the. weit petition was’ that it was: not, made for, a ; public purpose and was. therefore void, perhaps it might have been . ; - possible to successfully repel this ground of challenge by raisingan |. C, > . objection that the High Court Should not have entertained the writ ne ' petition challenging the order of requisition aftet a lapse of over 36 + ~ . , years. - But-we find that there is. also another ground of challenge | . "urged on behalf of the 3rd respondent. and that isa very formidable ~ = ‘ground to which there i is no-answer, The argument. urged under”: . this. ground of challenge was that.an order of’ requisition is by. its OD very nature t¢mporary in character and it ‘cannot ‘endure’ for an: indefinite period of time and the order of reqisition in the present case therefore ceasrd to be valid and effective after the expiration of a reasonable period of time and that it could not, under any_circumstances, continue fora period of about 3: years and hence it was ‘ liable to be quashed and set aside or in any event the State Govern- E } _ ment was bound to revake ‘the same and. to, derequisition the flat. This contention has, in our opinion, great force and must be sustained, There is a -basic and fundamental distinction, recognised by Jaw, between requisition and acquisition. The Constitation itself in Entry 42° of List IM of the Seventh Schedule makes a distinction’ between. "> acquisition’ and requisitioning of property. The origina! Article 31° F "> elause (2) of the Constitution also. recognised ‘this distinction - between Compulsory acquisition and requisitioning of - ‘property. ‘The ‘two. cén&pts, one of requisition and the other of acquisition are’ - ‘totally. ‘distinct and independent. Acquisition “means the, acquiring ¢ Sf of the entire title of the expropriated owner whatever the nature and’. ; .
hes
. *
“ =, * extent of that title may be. . The entire bundle of rights which was = G 7 '. ~ yested in the original holder passes on acquisition to the acquirer . > . leaving nothing to the former. Vide : Observations of Mukherjee, J.” in Chiranjitial’s case. The coricept of - acquisition has: an air of permanence and finality in that there is transference of the title of = foo” . the original “holder to the acquiring ‘authority. But‘ the concept of & pFequisition invelves mierely taking of “domain or. control over Pro“,
700. SUPREWE COURT REPORTS os [1984] 2. S.C.R..
perty without acquiring rights of ownershipy and must by its very _ nature be of temporary duration. If requisitioning of property could lesitimately.continue for an indefinite period of time, the distinction _ between requisition and acquisition would tend .to become blurred, because in that event for all practical purposes the right to pessession and enjoyment of the property which constitutes a major constituent °
- element of the right of ownership wonld be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over ‘the property — “without acquiring it and . paying full, market. value as compensaticn under thexLand, Ac quisition Act, 1894. We do not think that the .
government can under the guise of requisition continued for an indefinite peridd of time, in substance acquire the property, becduse that would be a fraud on the ‘power conferred on the government. If the governmet wants to take over the, property for an indefinite period of time, the government must accuire the property but it'can- “not, use ‘the power of requisition for achiéving that object. The power of requisition is exércisable by the government nly fer a public purpose which is of 4 transitory charagter.. If the public pur-.
‘pose for which the prernises are required is of a perennial or permanent character fromthe very inception, no order can be passed requisitionjag the premises and in such a case the order of requisition, if passed, ‘would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the pre-.
mises for acquisition, the object of taking the premises being nct
‘transitory but permanent in charactct. Where ‘the-purpose for which’ 7 the premises are required i is of such a character that, from the very inception it can never be served by | requisitioning _ the premises ,but
‘ can berachieved only. by acquiring the property which wollld be the case where the purpose is of a permanent character’ or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning. indefinitely. Here in the present case
_ the order of requisition was made as far back as 9th: April 195Y and even if it was made for housing a homeless person and the appel-
‘lant at thaf“time fell within the catégory of homeless person, it ‘cannot’ be allowed to continue for such an inordinately long -period. as thirty years:” We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration ‘of a reasonable period of time. Itis not necessary for
- Us to decide what period of time may be regarded as reasonable for
; the continuance of an order of requ “dsition in a given case, because ultimately the answer to this question must depend on the facts and ‘ ‘ , - : . . f
"N are”
’
~
/
- survive any longer an@. the State Government, was ‘bound to revoke faa
! « *
HD. VORA } v, MAHARASHTRA (Bhagwati, uv. ) *. 701
‘circumstances of each case but there can “be no ‘doubt that whatever be “the public purpose for which an order of ‘requisition i is made, ‘the period of time for which the order of requisition ‘may be continued’ cannot be an unreasonably long. period such as thirty years.
The High Court was, therefore, in any view of the matter, right in « holding: ‘that in the circumstances the order. of ‘ requis: ition could not »
‘the order of ‘requisition and derequisition the flat “and -to take steps ‘to evict the appellant froim the flat and to hand over ‘vacant: ‘posses-
‘sion of it to the. 3rd respondent. CT y ;
Thee“ “was also one other « contention’ urged 0 on behalf of the’ appellant in a desperate. attempt to protect hig possession of the flat
’ and that contention was, since he had'paid rent of the flat to Rukma-
A, >: om nibai and such rent was accepted by , ther, he. had becoine adirect |
. ‘tenant of Rukmanibai and ‘the: order of requisition had become. totally irrelevant so far as as his possession of the fjat is concerned. ° This contention is, in our opinion, wholly unfounded, The appellant’ ‘admittedly came into occupation of: the flat as an“allottee under the. order of requisition passed by’ the State Government and ‘even if any rént was paid by the appellant to ‘Rukmanibai and such rent was accepted by her, it did not. have the effect of putting an end to “the order of requisition. The appellant was an ‘allottee of the flat . under the order of requisitio’ and he was liabie to pay compensation for the use and occupation of the flat to the State Government and the
~~. State ‘Government was in its turnliable 'to ‘pay compensation to.
; _ by him to Rukmanibai as rent, because whatever was done by him
Rukmanibai for the-requisitiqnirig of the flat and if, therefore, instead of the appellant paying compensation to the State ‘Government and the State Government making payment of an identical amount to’,
Rukmanibai, the appellant paid directly to Rukmanibai with the . :
.-express oF in any event implied: assent of the State Government, the’
AS
* order of requisifion:could not cease to be valid and effective. Itdid —-
‘not matter at all whether the appellant described the ‘amount paid ‘.
* was-under the order’ of réquisition and: so long as the order of. .; ‘requisition stood, his possession of the flat’ was attributable only to the order of requisition and no payment of an amount described as “rent could possibly alter the nature of his occupation of the flat or - make hima tenant of Rukmanibai i in n respect of the’ flat.-
We are therefore of the view. that the High Court “was right...
-, x : . a
’
702 SUPREME. CoURT REPorTS [1984] 2 S.c.R.
. t in allowing the writ petition and directing the State Government and the Cantroller of Accommodation to derequisition the flat and to take steps to evict the appellant and to hand over vacant and peaceful — possession of the flat to the 3rd respondent, We accordingly dismiss the appeal, and confirm the order passed by the High Court but in the circumstances of. the case, the appellant shall not be evicted.
from. the fiat until 28th February, 1985, provided the appellant files ‘an undertaking in this Court within two weeks from today that he will vacate the flat and hand over its vacant possession to the 3rd respondent on or before that date. There val be ‘no order as to costs of the appeal, 2 , N.Y.K. _ + Appeal dismissed. oe . ~ . . . i. : , i . ™~ t ‘\ x ‘ : z \ Sy . “ = + ~ * * ° + ‘, - t ‘ ; , 7. t ’ + ¢ ” + : t
+