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Collector of Kamrup & Ors Vs. Kamakhya Ram Barooah & Ors [1964] INSC 192 (11 September 1964)

11/09/1964 SHAH, J.C.

SHAH, J.C.

GAJENDRAGADKAR, P.B. (CJ)

CITATION: 1965 AIR 1301 1965 SCR (1) 265

ACT:

Assam Land (Requisition and Acquisition) Act (Assam 25 of 1948) ss. 3, 4 and 11-Scope of.

HEADNOTE:

Under r. 75-A of the Defence of India Rules, 1939, the respondents land and building thereon were requisitioned.

while that requisition order was subsisting, an order for acquisition of the land and building was passed 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 for 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. II 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 maintainability of the objection raised as to the validity of the acquisition.

[267H; 268A].

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 412-414 of 1962.

Appeals from the judgment dated February 10, 1958 of the Assam High Court in Appeals from Original Decrees Nos. 10 to 21 of 1953.

Naunit Lal, for appellants Nos. 1 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 which give rise to appeal No. 412 of 1962. The respondents in this appeal are owners of a plot of land at Bharalumukh, Gauhati, on 266 which stands a residential building In exercise of the powers conferred by rule 75-A of the Defence of India Rules, 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 exercise 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 the land in exercise of the power conferred by s. 3 of the Assam Act 1948, and ordered that the requisition do take effect from February 7, 1949. The Collector assessed compensation payable to the respondents under s. 7 of the Act. The respondents applied for a reference to the Civil Court under s. 8 of the Act and simultaneously 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 was valid. In appeal to the High Court of Assam, the order passed by the Subordinate Judge, holding that the acquisition was invalid was confirmed. The State of Assam has filed this appeal with certificate granted by the High Court.

Acquisition of the land and building belonging to the respondents was not made under the Land Acquisition Act I of 1894, but under the provisions of the Assam Land (Requisition and Acquisition) Act, 1948. The Act was enacted, as the preamble state for the requisition and speedy acquisition of promises 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 main- taining supplies and services, essential to the life of the community 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 :

"Where any land has been requisitioned under section 3. the Provincial Government may use or deal with 267 it in such manner as may appear to it to be expedient and may acquire such land by publishing in 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 encumbrances 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 has 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.

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 75-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 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 order of acquisition was saved by s. 1 1 of the Assam Act, which provides :

"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 land 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 which is under requisition under S. 3, and there being no effective order of requisition under that section, S. I 1 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.

Appeals dismissed.

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