Report No. 10
During and after the last war, requisitioning of property became an imperative necessity. The power to requisition property was derived under the Defence of India Act of 1939 and the rules framed thereunder. The Defence of India Act, 1939, came to an end on the 30th September, 1946. With the termination of the Act, the power to retain possession of the properties already requisitioned would have automatically lapsed, and in cases where compensation had yet to be determined, there would have been no machinery in existence, to determine the compensation. The legislature had to intervene to deal with the situation that had thus arisen.
Under the legislative power conferred by section 3 of the India (Central Government and Legislature) Act, 1946 (9 and 10, George N, Chapter 39), the provinces passed Ordinances or Acts continuing the powers of requisitioning and in some cases took powers to acquire the requisitioned property.
15. Before the Constitution came into force, some of the States had passed Requisitioning and Acquisition Acts, presumably under the legislative power claimed to have been conferred upon the provinces under Item 9 of List II of the Seventh Schedule of the Government of India Act, 1935, but a difficulty arose by reason of a decision of the Bombay High Court, which held1 that the word 'acquisition' in entry 9 did not include the power of requisitioning and that, therefore, the provincial legislatures had no power to enact laws relating to requisitioning of property. The Governor General, therefore, had immediately to intervene under section 104 of the Government of India Act, 1953, by issuing a notification2 whereby he empowered the provincial legislatures to enact laws in respect of the requisitioning of land.3
1. Tan Bug Tain v. Collector of Bombay, AIR 1946 Bom 216.
2. Notification No. F. 311-47 C&G dated 21st October, 1947.
3. Vide, Assam Co. Ltd. v. State of Assam, AIR 1953 Assam 177 and the Preamble to Bombay Land Requisition Act, 1948 (Act XXXIII of 1948).
16. The need for requisitioning did not, however, cease and the inadequacy of accommodation for officers of the Government, displaced persons and refugees created an emergency justifying the continuance of the power of requisitioning. The Centre and the States, therefore, passed Requisitioning Acts. In view of the distribution of legislative powers as it then existed under the Constitution, the Union had to pass a Requisitioning Act of its own for the requisitioning of property for Union purposes and the State Legislatures had to pass separate Acts for requisitioning for State purposes and public purposes other than Union purposes.
17. Appendix V to the Report gives details of the .Requisitioning and Acquisition Acts now in force in all the States. These Acts are temporary Acts and most of them will expire in 1958. A close examination of the provisions of these Acts would show the absence of uniformity in their provisions. There are variations in the State Acts regarding the kinds of property that may be requisitioned, the principles for determining compensation payable in respect of the requisitioned property, the Tribunal or the authority to determine such compensation and the power to acquire land which has been requisitioned.
18. We are of the view that the power of requisitioning property of a private owner is an extraordinary power and can justifiably be invoked only when an emergency arises. That is perhaps the reason why most of the Requisitioning Acts are temporary. Though we have included the provisions relating to requisitioning of property in Part III of our legislative proposals, we do not suggest that the provisions in Part III should be in force permanently or throughout the country. We have provided that these provisions will be operative only on the issue of a notification by the appropriate Government and further that the provision may be made applicable to the whole or part of a State as the circumstances may require. It is relevant, in this connection, to point out that in other countries also, the power of requisitioning property is very sparingly used and that too, only in cases of emergency.