# COLLECTOR OF KAMRUP AND OTHERS v. KAMAKHY A RAM BAROOAH AND OTHERS

- **Citation:** [1965] 1 S.C.R. 265
- **Court:** Supreme Court of India
- **Decided:** 1964-09-11
- **Case number:** Civil Appeals Nos. 412414 of 1962
- **Bench:** P. B. Gajendragadkar, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/collector-of-kamrup-and-others-v-kamakhy-a-ram-barooah-and-others-3298
- **Pages:** 4

## Headnote

265
As.rant Land (Requisition and Acquisition) Act (Assani 25 of 19-1-8)
ss. 3, 4 and II-Scope of.
Under r. 75-A of the Defence of India Rules, 1939, the respon<lenls'
land and building thereon were requisitioned.
While that requisition order
was subsisting, an order for acquisition of the land and building was pas.seJ
under s. 4 of the Assam Land (Requisition and Acquisition) Act (Assam
25 of 1948).
Realising later that the power under s. 4 could be exercised
only when there was a requisition order under s. 3, the defect was sought
to be rectified by passing an order of requisition to take effect from a date
anterior to the order of acquisition.
The respondents applied fcir a reference under s. 8 of the Act and, the Subordinate Judge to whom the reference was made and the High Court on appeal held the acquisition invalid.
In appeal to the Supreme Court, it was contended that notwithstanding the
illegality the order of acquisition was saved by s. 11 of the Act, as an
order made in exercise of power conferred by or under the Act.
HELD : The power which was exercisable under s. 4 being expressly a
power to acquire land which was under requisition under s. 3 and there
being no effective order of requisition under that section the acquisition
was not made in exercise of the power conferred by or under the Act.
Section 11 was not therefore a bar to the maintainab.ility of the objection
raised as to the validity of the acquisition.
[267H; 268A].

## Text

A
B
c
D
'E
F
G
H
COLLECTOR OF KAMRUP AND OTHERS
v.
KAMAKHY A RAM BAROOAH AND OTHERS
September 11, 1964
(P. B. GAJENDRAGADKAR, C.J. AND J. C. SHAH J.)
265
As.rant Land (Requisition and Acquisition) Act (Assani 25 of 19-1-8)
ss. 3, 4 and II-Scope of.
Under r. 75-A of the Defence of India Rules, 1939, the respon<lenls'
land and building thereon were requisitioned.
While that requisition order
was subsisting, an order for acquisition of the land and building was pas.seJ
under s. 4 of the Assam Land (Requisition and Acquisition) Act (Assam
25 of 1948).
Realising later that the power under s. 4 could be exercised
only when there was a requisition order under s. 3, the defect was sought
to be rectified by passing an order of requisition to take effect from a date
anterior to the order of acquisition.
The respondents applied fcir a reference under s. 8 of the Act and, the Subordinate Judge to whom the reference was made and the High Court on appeal held the acquisition invalid.
In appeal to the Supreme Court, it was contended that notwithstanding the
illegality the order of acquisition was saved by s. 11 of the Act, as an
order made in exercise of power conferred by or under the Act.
HELD : The power which was exercisable under s. 4 being expressly a
power to acquire land which was under requisition under s. 3 and there
being no effective order of requisition under that section the acquisition
was not made in exercise of the power conferred by or under the Act.
Section 11 was not therefore a bar to the maintainab.ility of the objection
raised as to the validity of the acquisition.
[267H; 268A].
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 412414 of 1962.
Appeals from the judgment dated ~e?ruary 10, 1958 of the
Assam High Court in Appeals from Ongmal Decrees Nos. I 0 to
21 of 1953.
Naunit Lal, for appellants Nos. I and 2 (in all the appeals).
B. Sen and B.R.G.K. Achar, for appellant No. 3 (in all the
appeals).
Beharul Islam and R. Gopalakrishnan, for the
respondents
( in all the appeals) .
The Judgment of the Court was delivered by
Shah J. These three appeals raise a common question as to
the validity of certain acquisition proceedings commenced by the
Collector of Kamrup, State of Assam, under s. 4 of the Assam
Land (Requisition and Acquisition) Act, 1948.
We may in dealing with these appeals set out the facts. whic!1
give rise to appeal No. 412 of 1962. The respondents m. this
apPeal are owners of a plot of land at Bharalumukh, Gauhatt, on
266
SUPREME
COURT
REPORTS
[ 1965] l S.C.R.
which stands a residential building.
In exercise of the powers
A
conferred by rule 75-A of the Defence of India Rule.~. 1939, the
Government of India in 1943, requisitioned the land and
the
building for the use of the defence forces.
Since the date of the
requisition the land and the building continued in possession of
the Government of India.
The Collector of Kamrup passed an
order on February 9, 1949 for acquisition of the land and building purporting to e~ercise powers under s. 4 of the Assam (Requisition and Acquisition) Act, 1948. At this time the requisition
order made by the Government of India was subsisting. Thereafter by order dated August 4, 1949 the Collector requisitioned
B
I he land in exercise of the power conferred by s. 3 of the Assam
Act 1948, and ordered that the requisition do take effect from
C
Fehruary 7, 1949. The Collector assessed compensation payable
tn the respondents under s. 7 of the Act. The respondents applied
for a reference to the Civil Court under s. 8 of the Act arid simul1::.neously challenged the authority of the Collector to acquire the
land in the manner he had done.
The Subordinate Judge, Gauhati to whom the reference was made, held that there was no valid
acquisition of the land and the building of the respondents. He,
however, assessed compensation which would be payable to the
respondents if the acquisition wa~ valid.
In appeal to the High
Court of Assam, the order passed by the Subordinate Judge, holdD
ing that the acquisition was invalid was confinned. The Sta~ of
E
Assam has filed this appeal with certificate granted by the High
Court.
Acquisition of the land and building belonging to the respondent~ was not made under the Land Acquisition Act I of 1894,
but under the provisions of the Assam Land (Requisition and
F
Acquisition) Act, 1948. The Act was enacted. as the preamble
states. for the requisition and speedy acquisition of premises and
land for certain purposes.
By s. 3 if in the opinion of the
Provincial Government or any person authorised in that behalf
by the Provincial Government, it is necessary so to do, for maintaining supplies and services, essential to the life of the eornnmG
nity or for providing proper facilities for accommodation, transport, communication, irrigation or drainage, to requisition land,
the Provincial Government or the person authorised may by order
in writing, do so and make such further orders as appear to it or
to him to be necessary or expedient in connection with the requisition.
Section 4 by sub-s. ( 1) provides :
H
"Where any land has been requisitioned under section
3, the Provincial Government may use or deal with
A
B
c
D
COLLECTOR V. BAROOAH (Sha/J J.)
267
it in such manner as may appear to it to be expedient and may acquire such land by publishing ii:t
the Official Gazette, a notice to the effect that the
Provincial Government has decided to acquire such
land in pursuance of this section."
Sub-section ( 2) provides :
"Where a notice as aforesaid is published in the Official
Gazette, the requisitioned land and premises shall,
on and from the beginning of the day on which the
notice is so published, vest absolutely in the Provincial Government free from all incumbrances
and
the period of requisition of such land shall end."
The power to acquire land under s. 4 may, it ·is plain from
a bare perusal of sub-s. ( 1), be exercised where the land hos
been requisitioned under s. 3 and not otherwise. In the present
case, an order for acquisition of the land was made in the first
instance and presumably because it was realized that the order
was defective and irregular, it was sought to be rectified by passing an order on August 4, 1949, requisitioning the land with
effect from February 7, 1949. By this expedient, an illegal
order of acquisition could not be validated.
E
It is true that at the date when the order of acquisition was
passed under s. 4, the land was under requisition for use of the
defence forces.
That order of requisition was passed not under
s. 3 of the Assam Act, but under Rule .7 5-A of the· Defence of
India Rules, 1939. The previous requisition under the Defence
of India Rules which was at the date of the order of acquisition
F outstanding could not confer any authority upon the Provincial
Government of Assam to acquire the land belonging to the respondents under s. 4 of the Act.
It was urged that notwithstanding the illegality in the acquisition, the oraer of acquisition was saved by s. 11 of the As!am
G Act, which provides :
H
"Save as otherwise expressly provided in this Act,
no
decision or order made in exercise of any power conferred by or under this Act shall be called in question
in any Court."
It cannot, however, be said that the order passed under s.
4
acquiring the Jarid of the respondents was made in exercise of the
power conferred by or under the Act.
The power which was
exercisable under s. 4 being expressly a power to acquire land.
268
S\JPRP.ME
COURT
REPORTS
[1965] I S.C.R.
which is under requisition under s. 3, and there being no effective
A
order of requisition under that section, s. 11 is no bar to the maintainability of the objection raised to the validity of the acquisition.
The High Court was, therefore, in our judgment right in holding
that the acquisition was illegal.
The appeals fail and are dismissed with costs.
B
Appeals dismi.u~d.