# [1968] 1 S.C.R. 401

- **Citation:** [1968] 1 S.C.R. 401
- **Court:** Supreme Court of India
- **Decided:** 1968
- **Case number:** Special Civil Application No. 373 of 1961
- **Bench:** J.C. Shah, s. M. SIKRI, J.M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-1-s-c-r-401-4105
- **Pages:** 6

## Headnote

BomQay Land Requisition Act (Bom. 23 of 1948), s. 5(1)-Requisition for permanent public purpMe-If can be made.
Land Acquisition· Act (1 of 1894)-Power to requisition and ac-
·quis_ition-lf action under one bar action undeT other.
The land owned by the respondents were requisitioned by the
first appellant undet the Bombay Land Requisition Act for a public
purpose viz., for establishing a new villa~e site to resettle victims
of flood. The respondents filed a writ petition in the High Court
challenging the vtlidity of the order on the ground that since the
Act was a temporary Act extended until then upto 1963, the power
to requisition thereunder would inhere to 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.
In a appeal to this Court :
Held: The power to requisition under the Act could be exercised whether the public purpose was temporary or not and tbe exercise of that power for the purpose of rehabilitation of flood sufferers
was neither in abuse of nor unjustified under the Act. The words
"for any public purpose" in s. 5(1) are wide enough to include any
purpose of whatsoever nature and do not con.tain any restriction
regarding the nature of that purpose. It places no limitation on the
competent authority as to what kind of public purpose it should be
for the valid exercise of its power nor does it confine the exercise
of that power to a purpose which is a temporary one. [404E-F; 405ABJ
There is no antithesis between the power to requisition and the
power of cm;np11lsory acquisition under the Land Acquisition Act.
Ni:ither of the two Acts contains any provision under which it can
be said that if one is acted upon, the other cannot. [ 405D-E]

## Text

B
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v.
RAMCBANDRA & ORS.
Augu.it 30, 1967
[J.C. SHAH, s. M. SIKRI AND J.M. SHELAT, JJ.J
BomQay Land Requisition Act (Bom. 23 of 1948), s. 5(1)-Requisition for permanent public purpMe-If can be made.
Land Acquisition· Act (1 of 1894)-Power to requisition and ac-
·quis_ition-lf action under one bar action undeT other.
The land owned by the respondents were requisitioned by the
first appellant undet the Bombay Land Requisition Act for a public
purpose viz., for establishing a new villa~e site to resettle victims
of flood. The respondents filed a writ petition in the High Court
challenging the vtlidity of the order on the ground that since the
Act was a temporary Act extended until then upto 1963, the power
to requisition thereunder would inhere to 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.
In a appeal to this Court :
Held: The power to requisition under the Act could be exercised whether the public purpose was temporary or not and tbe exercise of that power for the purpose of rehabilitation of flood sufferers
was neither in abuse of nor unjustified under the Act. The words
"for any public purpose" in s. 5(1) are wide enough to include any
purpose of whatsoever nature and do not con.tain any restriction
regarding the nature of that purpose. It places no limitation on the
competent authority as to what kind of public purpose it should be
for the valid exercise of its power nor does it confine the exercise
of that power to a purpose which is a temporary one. [404E-F; 405ABJ
There is no antithesis between the power to requisition and the
power of cm;np11lsory acquisition under the Land Acquisition Act.
Ni:ither of the two Acts contains any provision under which it can
be said that if one is acted upon, the other cannot. [ 405D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1012 of
196.4.
Appeal by special leave from the judgment and order dated
All;[!ust 28, 1962 of the Bombay High Court, Nagpur Bench in
Special Civil Application No. 373 of 1961.
R. M. Hazarnavis, K. L. Hathi and S. P. Nayar, for the appellants.
S. G. Patwardhan, and A. G. Ratnaparkhi, for the respondent Nos. 1-10 and 12.
The Judgment of the Court was delivered by
S~elat, J. This appeal by special leave is directed against
t,he order of the High Court. of Maharashtra quashing the order
d.ated November 20, 1961 passed by the first appellant under section 5(1) of the Bombliy Lan<,! Requisition Act 23 of 1948 as
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SUPllllKB COURT BBl'OllTS
(1968) 1 S.0.11.
~xtended to. the Vidarbha! area by the Bombay Land RequisiA
tlon <Extenston and Amendment) Act 33 of 1959.
The respondents are the owners of the land in question
situate in the village Kasarkhed, District Akola. It appears that in
1959 there were floods in the area which affected the residen18
living in the gaothan of Kasarkhed. Once again there were floods
in 1961 more serious than in 1959 affecting as many as 470 per·
B
sons whose houses were either washed away or seriously damaged. There was therefore an urgent necessity of rehabilitating those
sufferers at some Dither place where they could build their houses
and complete them before the arrival of the next monsoon. In
these circumstances the first appellant under powers conferred on
him by section 15 of the Act passed the impugned order. The order
stated that the lands set out in the Schedule therrt" were needed
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or were likely to be needed for the public purpose, viz .• for a new
gaothan at Kasarkhed for the victims of floods, the old village site
where they lived having been rendered unsuitable by floods and
that it was therefore necessary to requisition the said lands for the
said purpose. It is not in dispute that land was needed for settling
a new gaothan where the victims of the flood could be resettled.
At a later stage the State Government also initiated proceedings
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under the Land Acquisition Act I of 1894 in respect of those very
lands and issued a notification under section 4 thereof. On December, 14, 1961 the respondents filed a Special Civil Application in
the High Court challenging the validity of the said order on the
grounds inter a/ia that it was passed without giving them an opportunity of being heard, that it contravened Art. t9(1)(f) and (g)
of the Constitution, that the competent authority had no power to
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invoke the Land Requisition Act inasmuch as the purpose for
which it was exercised was of a permanent character, viz., con:
struction of houses and settling a new village site, that the proceedings under the Act amounted to acquisition of lands, that invoking
the Requisition Act was not in bona fide exercise of power under
the said Act, that though there were more suitable lands for the
said purpose the lands of the respondents were deliberately selectF
ed as a result of influence exercised by the President of Balapur
Municipal Committee, and that there were buildings and a factory situate on the said lands and therefore the procedure laid
down in section 5(2) of the Act should have been followed. Jn the
return filed by the appellants these allegatiOillS were traversed and
it was submitied that the order was valid and competent under section 5(1) of the Act.
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The High Court allowed the petition and quashed the order.
In the opinion of the High Court the purpose for which the impugned order was passed was a permanent purpose viz., establishing a new village site, that since the Act was a tempo!~1!' Act extended until then up to 1963 and the power to reqms1t10n thereunder would inhere to the Government only during the time that
H
it subsisted an order passed for a permanent purpose such as for
establishing a village gaothan could not be in the contemplation
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408
of the Act and therefore could not be justified as one passed
under the Act. The High Court observed : -
"The Bombay Land Requisition Act was, in our opinion,
never intended to be used for the permanent acquisition
of the lands of citizens as is being sought to be done in
the instant case. We can only characterise the attempt
to take the lands of the petitioners under that Act as an
abuse t>f the provisions of that Act . .. . .. It is patent that
if a gaothan or abadi is allowed to rise upon the lands of
the petitioners, the lands can never revert to them at any
future time. It is not to be supposed nor is it alleged in
the return that the respondents seriously thought that at
some future date they would raise to the ground al! the
houses they were allowing to bC constructed in the new
gaothan. We hold that the impugned order is unjustified
under the Bombay Land Requisition Act. is illegal and
amounts to an abuse of the provisions of that Act."
Counsel for the appellants challenged the validity of the High
Court's order on the ground principally that the High Court's view
of section 5(1) of the Act was incorrect and that it failed to appreciate the scope of the provisions of section 5(1). 1be 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, in the present case rehabilitation of flood
sufferers and settling for that purpose a new village site.
The validity of section 5(1) is not challenged and therefore
it is not necessary to inquire into the genesis of the power of 't1*:
State legislature to enact the .Act. Indeed the question on which
the High Court's decision rests is on the scope of the power rather
than its validity.
Section 4(5) provides that the expression "to requisition"
means in relation to any land to take possession of the land or to
require the land to be placed at the disposal of the State Government. Section 5(1) under which the impugned order was made provides that "if in the opinion of the State Government it is neces..
sary or expedient so to do the State Government may by an order
in writing requisition any land for any public purpose." It is clear
that the only requirement o( section 5(1) is that the State Governmen~ ~ust form an opinidn that it is necessary or expedient to
requ1s1t1on any land. It can do so of course only for a purpose
which is a public. purpose. 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. It is not challenged tkat rehabilitation of
flood sufferers is a public purpose. The question then is does the
sub-section contain by implication anv restriction viz.. that the
requisiti0ning authority has no power thereunder to pass an Ofder
where the purpose is not temporary.
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(1968) l S.O.R,
It appears that the High Court thought that since the Act itA
self is of a temporary chara'Clcr in the sense that it was to enure
for a particular period and that period had to be extended from
time to time and on the Act ceasing to be in force when it is no
more extended the requisitioned land would have to return to the
owner it follows that the Act does not envisage requisitioning for
a purpose which is not temporary. In the opinion of the High
B
Court the temporary character of the Act postulates a temporary
purpose for which alone power under section 5(1) can be exercised. The High Court also appears to be of the view that there is
an antithesis between the power to requisition and the power of
acquisition, that the authority realised that the power to requisition
·cannot· be exercised where the purpose is not temporary and realising this difficulty the State Government had to have recourse to
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its power under the Land Acquisition Act. In this view the High
Court held. that settling a new village site for the ftoodt.sufferers
was a permanent purpose, that once houses and other structures
were built on the requisitioned• land it would be impossible for
the autHority to return the land to its owner as provided under
s~ 9, and therefore the Act could not have contemplated the
exercise of the power thereunder for a purpose which would
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render the operation of s. 9 impossible. The exercise of power for
wch a• purpose· must therefore amount to an abuse of and cannot
be justified under the Act.
In our opinion the High Court's view on the scope of the
power under section- 5(1) cannot be sustained. On a plain reading
of the section it is clear that the only limitation to the power
whichitconfers is the temporary life of the Act. But the words "any
land for any public purpose" are sufficiently wide enough to include any public purpose whether temporary or otherwise. To read"
into the section a limitation that the purpose contemplated by it
is only temporary is to confound the temporary life of the statute
with the character of the purpose for which the power thereunder
can ~ exercised. Sub-section (I) !l'Jleaks of no restriction except,
as aforesaid, that the purpose must be a public purpose. Section 9
no doubt provides that when the land in question is derequisition-
. ed 11nd that. would happen when the statute comes to an end dr
the land is otherwise released, it has to be restored to the owner
as far as possible in the same coridition in which it was when it
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was put into possession of the authority. That is so because th&
Gcivemment acquires only the n~· ht of possession and user of the
land and not any proprietary ri ht therein and since the ~er
ship is still refained in the own
the land must revert to him as
soon as it. is released either by the lapse of power or when the
nurpose of requisitionin~ is aver, whatever use .tr? .wh.ich suc1'. 1"
has been nut to ·during the period of such requ1s1tiomng. Section 9
therefore has nothing to do with the nature or character ~ the' B
pln'poSe for which an order .under s. 5(1) is passed. The hfe of
the p<iwer and the purpose for Which · it is exerdised are two
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OOLLECTOll, AKOLA v. llAMOHANDllA (Shelrt, J.)
4D6
distinct ingredients of section 5(1) and ought not to be
oonfu&OO. The words "for any public purpose" in -the sub-section
are wide enough to include ally purpose of whatsoever nature
and- do not contain any restriction regarding the nature of that
purpose. It places no limitation on the competent authority as to
what kind of public purpose it should be for the valid exercise
of its power nor does it confine the exercise of that power to a
purpose whicli is temporary only. Except for the limitation that
the purpose must be a public purpose the sub-section also imposes
no restriction as to the manner in which the land which is requisitioned is to be used. It may be used for a temporary purpose or
for a purpose which is not temporary in nature. It is for the requisitioning authority to judge and not for a court of law to decide how
best the land is to be used. If the requisitioning authority uses the
land for a purpose which is not temporary such as settling a new
village site and for construction of /louses it is for the Government and those who put up such structures to contemplate the
possibility of having to return in future the land to the owner in
its original state. But that does not mean that the power is restricted to a temporary purpose only.
. We do not also see any antithesis "between the power to requisition and' the power of compulsory acquisition under the Land
Acquisition Act. Neither of the two Acts contains any provision
under which it can be said that if one is acted upon, the other cannot. Indeed, Part VI of the Land Acquisition Act provides for temporary occupation of waste or arable land needed for a public
purpose or for a Company and empowers the appropriate Government to direct the Collector to procure the occupation and use of
the same for such purpose as it shall think fit, not exceeding three
years from the commencement of such occupation. Apart .froin
these provisions in the Land Acquisition Act there are several
State Acts which empower the appropriate Governments to acquire property which is subject to requisitioning orders. If there is
an emergency to meet which the power to requisition is exercised
there is nothing in the Act to prevent the authority at a Subsequent date to initiate proceedings in a· suitable case for permanent
ai:quisition. The exercise of power under the Requisitioning Act
docs not exhaust or make incompatible the exercise of power Under the Land Acquisition Act. The initiation of proceedings under
the. Land Acquisition Act after requisitioning the lands under
s. 5(1) of the Act does not and cannot mean abuse of tlie power
under the provisions of the Act. In our view the High/ Court was
in error in holding that the power to requisition under the Act
cannot be exercised where the public purpose is not temporary· or
. that the exercise of that power for the purposes of rehabilitation of
ftood sufferers was either in abuse of or unjustified under the Act.
We therefore allow the ·appeal and set aside the order passed
by the High Court. Since the High Court de.dided the petition only
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(1968] l 8.0.B
on the question of the validity of the exercise of power and did
not decide the ·other questions raised in the petition, we remand
the matter to the High Omrt to deoide those questions in accordance with law. In the circumstances of the case, we make no ord\:r
as to costs.
Y.P.
Appeal allowed.
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