G. MEHROTRA, J. : These are eleven petitions under Art. 226 of the Constitution of India on which Rules were issued by this Court. By means of these petitions, the requisition Orders in respect of different lands which are the subject matter of separate petitions passed by the Deputy Commissioners under S. 3(1) of the Assam Land (Requisition and Acquisition) Act, 1948, have been challenged. (2) The constitutionality of the Assam Land (Requisition and Acquisition) Act of 1948 which will hereinafter be called the Act, has been challenged. The common point raised in all the petitions is regarding the constitutionality of the Act. The orders of requisition have also been impugned on various other grounds; but these points will be considered when we deal with individual petitions. The Act .received the assent of the Governor on the 14th November, 1948. It is a pre-Constitution Act. The provisions of S. 3 of the Act were amended from time to time and the present S. 3 of the Act reads as follows :- "If in the opinion of the State Government or any person authorised in this behalf by the State Government it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation or drainage or for providing land individually or in groups to landless, flood-affected or displaced persons, or to a society registered under the Indian Co-operative Societies Act, 1912 (with such statutory re-enactment or modification thereof as shall from time to time be made) or a company incorporated under the Indian Companies Act, 1913, formed for the benefit and rehabilitation of landless, flood-affected or displaced persons, the State Government or the person so authorised, as the case may be, may, by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning." The validity of the Act was challenged earlier in this Court and a Division Bench of this Court in the case of Assam Company Ltd. v. State of Assam, AIR 1953 Assam 177 (A)., held that the Act was intra vires of the Constitution; it was not hit by the provisions of Art. 31 (2) of the Constitution and consequently was not void under Art. 13 of the Constitution.
There is therefore already an authoritative decision of this court that the Act is constitutional. It was however contended by the counsel for the petitioners that the decision of the Division Bench of this Court, referred to above, requires reconsideration inasmuch as the Bench had expressly dissented from the view taken by the Calcutta High Court in the case of West Bengal Settlement Kanungoe Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee, AIR 1951 Cal 111 (B), which has since been affirmed by the Supreme Court reported in State of West Bengal v. Mrs. Bella Banerjee, AIR 1954 SC 170 (C). The cases came up for hearing on earlier occasions also; but were adjourned on the ground that the earlier decision of this Court is the subject matter of appeal before the Supreme Court and the appeal was likely to be decided by the Supreme Court early. When the case was listed this time, a similar request was made; but we thought it not advisable to grant any further adjournment. If the Supreme Court holds the Act to be ultra vires, we have no reason to doubt that the authorities concerned will take necessary action in the matter to recall the requisition orders. It is therefore not necessary for us to adjourn this case till the decision of the Supreme Court in the appeal. It is not necessary to examine elaborately the points urged regarding the constitutionality of the Act, inasmuch as most of the points have already been discussed in the earlier judgment of this Court at considerable length. Shortly we have to examine only how far the decision of the Supreme Court in the case of AIR 1954 SC 170 (C), applies to the facts of the present case and affects the earlier decision of this Court. (3) Mainly the argument advanced by the counsel for the petitioners is that the Act neither provides for payment of compensation nor specifies the principles on which and the manner in which the compensation is to be determined and given. According to the contention of the petitioners, Article 31 (2) makes it obligatory to provide for payment of compensation and further either to fix the amount of the compensation or to specify the principles on which and the manner in which the compensation is to be determined and given in the law itself which authorises requisition of the property.
According to the contention of the petitioners, Article 31 (2) makes it obligatory to provide for payment of compensation and further either to fix the amount of the compensation or to specify the principles on which and the manner in which the compensation is to be determined and given in the law itself which authorises requisition of the property. According to the contention of the petitioners, on the examination of the provisions of the Act, it will be found that the basis on which the payment of compensation is to be made under the Act is wholly arbitrary and consequently it results in the payment of no compensation and further the Act does not specify the principles on which and the manner in which the compensation is to be determined. It was contended that the very word - 'compensation' connotes an idea of quid pro quo. If the amount of compensation awarded on the basis of the provisions of the Act is illusory or has ; no relation to the market value of the property on the date of requisition, it is no compensation in the eye of law, and as such the law provides for payment of no compensation. Before we deal with the case of the Supreme Court, on which reliance has been placed, it is necessary to refer to certain provisions of the Act. Section 3 (1) which we have already quoted gives under certain circumstances power to the State Government or any person authorised by the Govt. to requisition land. Subsequent clauses in express terms then provide that any land used for religious worship or for charitable purposes or any building or part thereof wherein the owner has actually resided for a continuous period of one year, immediately preceding the date of the order, shall not be requisitioned. Thereafter the manner in which the notice is to be served and the right of appeal to the Govt. are provided for when the order has been passed by any officer of the Govt. Section 4 then provides for the acquisition of the land which had already been requisitioned. Section 5 deals with the notice to the persons interested of the order of acquisition under S. 4.
are provided for when the order has been passed by any officer of the Govt. Section 4 then provides for the acquisition of the land which had already been requisitioned. Section 5 deals with the notice to the persons interested of the order of acquisition under S. 4. Section 7 deals with the compensation and is as follows :- "Subject to the provisions of sub-s. (1-A) wherever any land is acquired under S. 4 there shall be paid compensation the amount of which shall be determined by the Collector in the manner and in accordance with the principles set out in sub-s. (1) of S. 23 of the Land Acquisition Act, 1894 : Provided that the market value referred to in clause first of sub-s. (1) of S. 23 of the said Act shall, in respect of any land required under this Act, be deemed to be the market value of such land on the date of publication of the notice referred to in sub-s. (1) of S. 4. (1-A) In the case of land included in any grant or settlement made for special cultivation, if such land is lying fallow or uncultivated or is not utilised for the purpose for which the grant or settlement was made or for the purposes incidental thereto, then the compensation payable for acquisition of such land together with trees (if any) standing on it shall be an amount equal to ten times of the annual land revenue which, on the date of publication of the notice referred to in sub-s. (1) of S. 4, is or would have been payable if such land is or had been assessable to revenue at full rates : Provided that where any amount 'was originally paid to Government by the grantee as price or premium for the land, an additional amount equal to the amount originally paid by the grantee shall also be payable. -- Explanation, -- 'special cultivation' means cultivation which involves, either owing to the nature of the crop or owing to the process of cultivation, a much larger expenditure of capital per acre than is incurred by most of the cultivators in the State, and includes cultivation of tea.
-- Explanation, -- 'special cultivation' means cultivation which involves, either owing to the nature of the crop or owing to the process of cultivation, a much larger expenditure of capital per acre than is incurred by most of the cultivators in the State, and includes cultivation of tea. (2) When the compensation has been determined under sub-s. (1) and sub-s. (1-A) the Collector shall make an award in accordance with the principles set out in S. 11 of the Land Acquisition Act, 1894, and no amount referred to in sub-s. (2) of S. 23 of that Act, shall be included in the award. (3) Where any land is requisitioned under S. 3, there shall be paid (subject to the provisions of sub-s. (4) below) to every person interested such compensation as may be agreed upon in writing between such person and the Collector (or in the absence of agreement reasonable compensation) in respect of - (a) the requisition of such land; and (b) any damage done during the period of requisition to such land other than what may have been sustained by natural causes. (4) Notwithstanding the provisions of sub-section (2) of S. 8, in the case of land included in any grant or settlement made for special cultivation or other purposes which is lying fallow or uncultivated and which is requisitioned for the purpose of cultivation, the annual compensation payable under Cl. (a) of sub-s. (3) shall in no case be more than double the annual land revenue which, on the date of order of requisition, is or would have been payable if such land is or had been assessable to revenue at full rates." Prom the perusal of S. 7 of the Act it will be clear that the relevant sub-sections which provide for compensation In the case of 'requisition are sections 7 (3) and (4). Section 8 then provides for reference to the Courts in the event of disagreement between the Government and the person whose land has been requisitioned in regard to the amount of compensation.
Section 8 then provides for reference to the Courts in the event of disagreement between the Government and the person whose land has been requisitioned in regard to the amount of compensation. The relevant part of S. 8 is 8(b) which reads as follows :- "Where there is any disagreement with regard-to the compensation payable under sub-s. (3) of S. 7 on the application of the person entitled to compensation requiring the matter to be referred to Court, refer the matter to the decisions of the Court." Sub-section (2) of S. 8 then provides as follows :- "The provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of any reference made to the Court under sub-section (1)." (4) The other sections of the Act are not relevant for the purposes of the present case. Section 7 (3) clearly therefore provides for the payment of compensation. It further provides the method for the determination of the amount and embodies the principles on which the compensation is to be paid. In the first instance, wherever any land of any person is requisitioned, compensation agreed upon in writing between such a person and the Collector is to be paid and in the absence of any such agreement, reasonable compensation is to be paid both in respect of the requisition and any damage done during the period of requisition to such land other than those which would have been sustained by natural causes. The amount, of compensation to be awarded is controlled by sub-s. (4) which provides that notwithstanding the provisions of sub-s. (2) of S. 8 -namely the application of the Land Acquisition Act to the proceedings before the Court, where the reference has been made, in all the cases of land included in any grant or settlement made for special cultivation or other purposes which is lying fallow or uncultivated and which is requisitioned for the purpose of cultivation the annual compensation payable under Cl. (a) of sub-s. (3) shall in no case be more than double the annual land revenue which on the date of order of requisition is or would have been payable if such land is or had been assessable to revenue at full rates. The amount of compensation is not to exceed double the annual land revenue in cases of lands mentioned therein.
The amount of compensation is not to exceed double the annual land revenue in cases of lands mentioned therein. In the case of disagreement, the matter may be referred at the instance of any interested person to the Court and the provisions of the Land Acquisition Act will be attracted to those proceedings. On a close analysis of the Act, it is clear that the reasonable compensation which) has to be awarded by the Collector, in the absence of any agreement, is subject to the scrutiny by a Court on reference, and such a Court is to be guided by the provisions of the Land Acquisition Act. Obviously the reasonable compensation to be paid by the Collector is thus to be guided by the similar principles as laid down in the Land Acquisition Act. Moreover, the use of the word 'reasonable compensation' excludes the idea of arbitrariness. The provisions also clearly indicate that the compensation is to be paid both for requisition and the damages. It also provides for the method by which the amount is to be determined. After having carefully considered the provisions of the Act, we do not think that there is any substance in the contention that the Act does not specify the principles on which the compensation is to be paid or the manner in which it is to be determined. (5) The next line of argument was that the Legislature having fixed the maximum amount which can be paid as compensation in respect of certain land under sub-s. (4) of S. 7, it fixes no minimum and consequently it in fact authorises the Collector to pay any amount and thus it provides for payment of no compensation. The fallacy in the argument of the counsel is obvious. Sub-ss. (3) and (4) have got to be read together. The element of arbitrariness is ruled out by the use of the word 'reasonable compensation' in sub-s. (3). Any compensation paid, thus cannot be illusory or no compensation in the eye of law. The maximum amount has been fixed and it cannot be said that maximum amount itself has arbitrarily been fixed. It cannot be argued that the market value of the right to remain in possession of the requisitioned land will in every case be greater than double the annual revenue of the land.
The maximum amount has been fixed and it cannot be said that maximum amount itself has arbitrarily been fixed. It cannot be argued that the market value of the right to remain in possession of the requisitioned land will in every case be greater than double the annual revenue of the land. In case of the land which has been taken on special grant for cultivation and is not used for cultivation and is requisitioned for the purposes of cultivation, it cannot be said that any amount less than double the annual revenue of land will be no compensation at all. The Section further clearly specifies the principles when it lays down that in such classes of lands, the payment of compensation will be in certain proportion to the land .revenue. (6) In the case of State of West Bengal v. Mrs. Bela Banerjee (C), referred to above, the validity of certain sections of the West Bengal Land Development and Planning Act were challenged. That was a permanent enactment dealing with the acquisition of the property. Section 8, proviso (b) which was struck down as unconstitutional by the Supreme Court was in the following terms: "In determining the amount of compensation to be awarded for land acquired in pursuance of this Act the market value referred to in clause first of sub-s. (1) of S. 23 of the said Act shall be deemed to be the market value of the land on the date •of publication of the notification under sub-s. (1) of S. 4 for the notified area in which the land is included subject to the following conditions, that is to say - if such market value exceeds by any ^amount the market value of the land on 31-12-1946, on the assumption that the land had been at that date in the State in which it in fact was on the date of publication of the said notification, the amount of such excess shall not be taken into consideration." The only controversy raised before the Supreme Court in that case was about the constitutionality of the conditions in proviso (b) to S. 8 limiting the compensation payable so as not to exceed the market value of the land on 31-12-1946.
It was contended by the Attorney-General in that case that although the word 'comoensation' taken by itself must mean a full and fair money equivalent, still in the context of Article 31 (2) and the Legislative list, had a reference to what the legislature might think a proper indemnity for the loss sustained by the owner. This contention was not accepted as will appear from the following observations at page 172 of the report: "We are unable to agree with this view. While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justifiable issue to be adjudicated by the Court. This, indeed, was not disputed." At page 173, it was then observed as follows: "Turning now to the provisions relating to compensation Minder the impugned Act, it will be seen that the latter part of the proviso to S. 8 limits the amount of compensation so as not to exceed the market value of the land on 31-12-1946, no matter when the land is acquired. Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on 31-12-1946, as the ceiling on compensation, without reference to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of Art. 31 (2).
The fixing of an anterior date for the ascertainment of value may not, in certain circumstances, be a violation of the constitutional requirements, as for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date which might have no relation to the value of the land when it is acquired, may be, many years later, cannot but be regarded as arbitrary." (7) The principle therefore laid down in that decision has to be considered with due regard to the circumstances of the case and other provisions of that Act. As has been pointed out, that was an Act dealing with acquisition. The provisions impugned were regarding the payment of compensation for the acquisition of the property. In the present case, the impugned provisions do not deal with the payment of compensation for acquisition, but only deal with the payment of compensation for requisitioning certain land. There is bound to be difference in the market value of the property in these two cases. In case of requisition, a person is temporarily deprived of his possession which will have different market value from acquisition where the person is permanently deprived of his property. Moreover, in that case, the emphasis was laid on the fact that the market value was fixed as on a particular date which had no relation to the actual date of acquisition. Even in the cases where an anterior date has been fixed, as has been pointed out by the Supreme Court, there may be cases where such provision may not be considered as arbitrary. In the present case, no anterior date has been fixed for the ascertainment of the value of the property. What the provision lays down is that the compensation will not exceed the double of the annual land revenue of the land. Obviously the land revenue referred to in this section is the land revenue on the date of the requisition. It cannot be therefore said that the section provided the ceiling for the ascertainment of the value of the property requisitioned was arbitrary, so as, in final analysis, leading to the payment of no compensation.
Obviously the land revenue referred to in this section is the land revenue on the date of the requisition. It cannot be therefore said that the section provided the ceiling for the ascertainment of the value of the property requisitioned was arbitrary, so as, in final analysis, leading to the payment of no compensation. At another place in the Supreme Court case, it was observed that "any principle for determining compensation which denies to the owner this increment in value cannot result in the ascertainment of the true equivalent of the land appropriated." ft also shows that what is to be considered is whether the principles for ascertainment of the .market value are such as not to lead to the ascertainment of the true value of the land appropriated. We do not think therefore that the principles laid down in this case in any way affect the validity of S. 7 (3) or (4) of the Assam Land Requisition and Acquisition Act. The next case relied upon by the counsel for the petitioners is State of Rajasthan v. Nath Mai, AIR 1954 SC 307 (D). In that case the validity of Rajasthan Food Grains Control Order was challenged. The first part of Cl. 25 of the Order providing for the freezing of stocks of food grains was held to be constitutional and not violative of Art. 19 (1) (g). The last part which gave power to the Government to requisition and dispose of under its orders, at the rate fixed for the purpose of Government procurement, was held to be unconstitutional both under .Art. 19 (1) (g) and under Art. 31 (2). To show the arbitrariness of the order, this part of the clause was compared with Cls. 23 and 24 which gave power to fix ceiling prices for sale but none for requisition. It was held that the power given under later part of Cl. 25 was arbitrary. This case does not lay down that in all circumstances if a maximum amount of compensation is fixed it is contrary to Art. 31 (2) of the Constitution. (8) In the result, we see no force in the common point raised in all the petitions that the provisions of S. 7 (3) and (4) of the Assam Land Requisition and Acquisition Act are unconstitutional in view of the decision of the Supreme Court in the case of West Bengal v. Mrs.
(8) In the result, we see no force in the common point raised in all the petitions that the provisions of S. 7 (3) and (4) of the Assam Land Requisition and Acquisition Act are unconstitutional in view of the decision of the Supreme Court in the case of West Bengal v. Mrs. Bella Banerjee (C), referred to above. (9) We shall now deal with the specific points .raised in each of the petitions separately. Civil Rule No. 9/54. (10) In this case by an order dated 30-4-1953, some land of Mauza Tengakhat, village: Wilton T. E. (Jokai Assam T. Co.) has been rcquistioned. An appeal was filed against this order by the petitioner to the Government of the State of Assam. The appeal was heard by the opposite party No. 3 the Deputy Minister, Revenue, Shillong and he, by his order dated 3-11-1953, dismissed the said appeal. This petition was filed on 11-1-1954, and has since been pending in this Court. Prior to the passing of the order dated 30-4-1953, by a letter dated 17-7-1952, the Deputy Commissioner, Lakhim-pur, intimated the petitioner about the proposal of requisitioning certain land belonging to the company for rehabilitation of erosion and flood affected families and the petitioner was asked to file written objection, if any. Written objection was filed and that was considered at the time when the order impugned was passed. It is not disputed that the settlement of the land with the people affected by the erosion, flood and earthquake is a public purpose. The order of requisition, therefore, was for a public purpose and that it is not hit by the nrovisions of Art. 31 (2) of the Constitution. It was, however, asserted by the petitioner that the Kachari families for whom the. land was sought to be requisitioned have already been settled in the Bhimpara Reserve Forest of BurideMng mouza and there is no other family for whom the land is purported to be requisitioned. This assertion in para 12 of the petition has been denied in the counter affidavit. It is asserted therein that there were large number of applicants for land and it was not correct to say that the land was requisitioned for the Kachari families who had been settled elsewhere. (11) The next point contended was that in the notice, the property has not been properly described.
It is asserted therein that there were large number of applicants for land and it was not correct to say that the land was requisitioned for the Kachari families who had been settled elsewhere. (11) The next point contended was that in the notice, the property has not been properly described. The petitioner had a large number of tea estates and required further land to increase the plantation. It is also urged that the petitioners are share-holders of Assam Distillery Ltd., and the sugarcane for the said distillery was being cultivated over a large area. In order to facilitate extension and efficient running of the aforesaid concerns, by an Indenture dated 28-2-1948, the petitioner purchased from one Muralidhar Jalan 1895.02 acres equivalent to 5732 Bighas 2 kathas and 3 lechas and some other lands of Tengakhat Mouza from Assam Tea Co. Ltd., on 1-6-1950. It is urged that the land was not clearly mentioned. The notice which has been filed by the petitioner in its schedule described the land as follows: Pattadar Dag No. Patta No. Area B. K. L. Jokai (Assam) Tea 2/33 22/157 OR (R) 2- 2- 2 Co. Ltd. Now puichased by 2/34 do 11- 0- 11 Sri N. Chakra- 2 Pt. 486- 2- 7 varty. Total... 5000-0 The petitioners were intimated before the order was passed of the intention of the executive authority to requisition this land. The notice clearly specified the land which was sought to be requisioned. The Petitioners went up in appeal to the Government and nowhere any grievance was made that in the notice given to them only vague description of the property was given and on that account the petitioners were unable to make representation to the appropriate authorities. By a supplementary affidavit filed by the petitioner, an additional ground in the following terms was taken: "For that the order dated 30-4-1953, passed by the learned Deputy Commissioner, Lakhimpur, purports to requisition part of Dag No. 2 of Patta No. 22/157 (corresponding F. S. Grant No. 22/157) measuring an area of 486 bighas 2 kathas 7 lessas, the said Dag contains an area of 6221 bighas 0 katha 0 lessas belonging to the petitioner; the order being in effect to requisition an undefined & unspecified area is not capable of execution, and as such the said order is ineffective and invalid in the eye of the law.
There is nothing to show what portion of the said Dag was requisitioned." (12) In reply to the said affidavit, it has been stated that the land requisitioned had been well demarcated and shown in a map by S. D. C. The representative of the petitioner had known of the particular area before requisition and he agreed to the same which is clear by following order passed by the Deputy Commissioner on 9-4-1953. "Read S. D. C.'s report No. 428 dated 26-3-1953. Put up formal requisition order as decided by the L. S. A. Committee for 500 B. as per schedule submitted by S. D. C. Inform parties accordingly." In view of the facts mentioned in the counter-affidavit and the perusal of the record, it is absolutely clear that the notice clearly gives the description of the land and cannot be regarded as defective. It also cannot be accepted that the petitioner did not know which land was sought to be reauisitioned. He was not at all in any way prejudiced by the action of the authorities. (13) In the result, therefore, there is no force in this petition and it must be rejected. Civil Rule No. 82/55. (14) By an order dated 1-12-1954, the disputed land was requisitioned by the Deputy Commissioner, Lakhimpur under S. 3 (1) of the Act. An appeal was preferred against this order to the Government which was rejected on 10-3-1955. On 30-4-1955, an application for review was made to the opposite party No. 2 which was also rejected. The main point urged in this petition is to the effect that the land sought to be requisitioned was undefined. The order under which the land has been requisitioned, in its schedule clearly specifies the Dag No., the patta No. and the area of each of the Dag No. which was sought to be requisitioned. The assertion that the land has not been defined properly in the notice has been denied in the counter-affidavit. From the perusal of the orders in appeal, the notice and the various documents on the record, it is absolutely clear that the notice cannot be regarded as defective as being vague and giving undefined land. There is no force in this petition and it is rejected. Civil Rule No. 83/55. (15) By this petition, the order of requisition passed by the Deputy Commissioner of Lakhimpur on 6-12-1954, requisitioning 44B. 2K. 1L.
There is no force in this petition and it is rejected. Civil Rule No. 83/55. (15) By this petition, the order of requisition passed by the Deputy Commissioner of Lakhimpur on 6-12-1954, requisitioning 44B. 2K. 1L. of land appertaining to Tea Periodic Patta No. 2 & covered by Dag No. 6 has been assailed. An appeal was preferred against the order to the Government which was rejected. Two other parcels of land belonging to the petitioner within Chalkhowa T. E. were also requisitioned by the respondent No. 3 by his order dated 1-12-1954 and 6-12-1954. Two appeals were then filed. They came up together before the Deputy Minister, Revenue, on 19-3-1955 for hearing. The point taken was that this land was used by the labourers for grazing purposes, and there was no other suitable land for the labourers to graze their cattle and as such the requisition was likely to lead to unrest amongst the labourers. That has been considered by the appropriate authorities and we cannot set aside the order of requisition, if it comes within the ambit and scope of S. 3 of the Act, on this ground. It was then asserted that in passing the order of requisition dated 6-12-1954, the respondent did not act bona fide and after considering the entire relevant matter. No facts have been pointed Out to prove the mala fide of the authorities in passing the order, nor have any materials been placed before us from which it can be deduced that the authorities did not consider all the matters which were placed before them. Orders have also been impugned on the ground that they are unreasonable, discriminatory and arbitrary. We have already dealt with the validity of the Act under which the requisition has been made and it is needless to point out that the Act cannot be said to be hit by the provisions of Art. 14 of the Constitution. In fact, the point was never argued. That being so, the orders having been passed under S. 3, .unreasonableness and the discriminatory nature, if any, in the order can only be relevant to consider the question of mala fide of the order. We have considered the entire materials on the record and are of the opinion that the orders cannot be regarded as unreasonable and arbitrary so as to be quashed by the Court under Art. 226 of the Constitution.
We have considered the entire materials on the record and are of the opinion that the orders cannot be regarded as unreasonable and arbitrary so as to be quashed by the Court under Art. 226 of the Constitution. (16) There is therefore no force in this petition and it is rejected. Civil Rule No. 4/56. (17) This Rule arises out of an application under Art. 226 of the Constitution challenging the requisition order dated 22-4-1955, passed by the Sub-Divisional Officer, Golaghat, whereby an area of 271B. and 7L. of land belonging to the petitioner was requisitioned. The petitioner was directed to give immediate possession to the Collector on 6-5-1955. An appeal was preferred by the petitioner against the aforesaid order to the Government of Assam and the Deputy Minister, Revenue, Shillong by his order dated 14-7-1955 partly allowed the appeal releasing an area of 66B. As regards the rest of the land, the requisition order was upheld. (18) A number of grounds have been taken, besides the validity of the Act. The order of requisition is passed providing lands for individual or group of landless people of the locality. The purpose therefore of the requisition is a public purpose and the order cannot be impugned under Art. 31 (2) of the Constitution. The bona fide of the order has been challenged. It is also contended that a portion of the requisitioned land has already been settled by the petitioner for charitable purposes and as such the order is alleged to be beyond the scope of the Act. It is then contended that as no notice to the tenants occupying 51 bighas of the requisitioned' land as contemplated under S. 3 (2) of the Assam Land (Requisition and Acquisition) Act, 1948, was served, the order dated 22-4-1955 was illegal and in contravention of the mandatory provisions of law. It is also said that no notice was served on the petitioner. In the counter-affidavit, it is stated that the petitioner, has enough land to spare without materially affecting his Tea Garden or arrangements for extension of amenities to be given to Tea Labour. It is also denied that the area sought to be requisitioned is not suitable for cultivation purposes and that it is asserted that it is quite suitable for the rehabilitation of the landless people. The assertion that the order was mala fide has been denied.
It is also denied that the area sought to be requisitioned is not suitable for cultivation purposes and that it is asserted that it is quite suitable for the rehabilitation of the landless people. The assertion that the order was mala fide has been denied. The land was requisitioned for the purpose of rehabilitation of the people who had no economic holdings. It has not been established by the petitioner that the land was such that it cannot be requisitioned under the Act. The proviso to S. 3 lays down that no land used for religious and charitable purposes shall be requisitioned. No materials have been placed before us to show that these lands have been used for charitable purposes and are thus not liable to be requisitioned under the proviso to S. 3 of the Act. (19) The question of notice has been urged on two grounds. Firstly it is said that no notice was given to the tenants in the occupation of 51 bighas of land. As has been pointed out in the, counter-affidavit, the land has been acquired for making the holdings of the landless persons economic including the holdings of the tenants over this 51 bighas of land. It cannot therefore be said that tlie order itself was illegal for want of notice to the tenants. They have not come and challenged the order of requisition. As regards the point that no notice was served on the petitioner, the service of notice is not the condition precedent for the exercise of the powers under S. 3 of the Act, After the order has been passed, it is the order which is served on the owner with a view to give him an opportunity to file any objection to the said order. The failure therefore to give notice of the order subsequent to the passing of the order cannot invalidate the order itself. It may be that persons who have not received notice of the order of requisition, may not be bound by it and the order as such may not be effective against them. But the petitioner had filed an appeal against the requisition order and it cannot be said by him that he had no knowledge of the order and has in any way been prejudiced by the non-service of the notice, even if it be accepted that no such notice was served on him.
But the petitioner had filed an appeal against the requisition order and it cannot be said by him that he had no knowledge of the order and has in any way been prejudiced by the non-service of the notice, even if it be accepted that no such notice was served on him. (20) There is therefore no force in this petition and it is accordingly rejected with costs. In each of these cases the hearing-fee is assessed at Rs. SO/- only. Civil Rule No. 102/57, Civil Rule No. 103/57, Civil Rule No. 83/57, & Civil Rule No. 84/57. (21) These four petitions can be disposed of by the one single order, because the main contention in all these petitions is that the purpose for which the land is requisitioned is not covered by any of the purposes mentioned in S. 3 of the Act. In the impugned order, the land is said to be urgently required for the purpose of N. E. S. Block which means national extension service. The particular activity of the National Extension Service for which the land is going to be utilised is the opening of a seed farm. In paragraph 2 of the affidavit in reply, it is stated that the "Project Advisory Committee of the National Extension Service Block, Hajo, proposed to open a Seed Farm, under the revised Second Five Year Plan of the State to meet the basic requirements of the cultivators as the main purpose of such a Seed Farm. Several sites were examined by the Selection Committee consisting of the Sub-Deputy Collector, Hajo, the Project Extension Officer, Hajo and the District Agricultural Officer, Kamrup.
Several sites were examined by the Selection Committee consisting of the Sub-Deputy Collector, Hajo, the Project Extension Officer, Hajo and the District Agricultural Officer, Kamrup. Ultimately about 30 acres of lands in village Gerua and Abhoypur were selected by the District Agricultural Officer Kamrup to be most suitable for the purpose." (22) The counsel for the petitioners argues that S. 3 gives power to the Government or to any person authorised in this behalf by the State to requisition a land for a limited purpose, namely, for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation or drainage or for providing land individually or in group to landless, flood-affected or displaced persons or to a society registered under the Indian Co-operative Societies Act, 1912 or a company incorporated under the Indian Companies Act, 1913 formed for the benefit and rehabilitation of landless, flood-affected or displaced persons. If the acquisition is not covered by any of these limited purposes referred to above, the order passed will he outside the ambit of S. 3 and cannot be sustained. Two questions .arise for consideration in this connection. If it is accepted that the words "for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation or drainage or for providing land individually or in group to landless, flood-affected or displaced persons" in the Act specify the purpose "for which a requisition order can be passed under S. 3, then these words are controlled by the words "if in the opinion of the Government it is necessary to do so for this purpose" and in that view once the Government has formed an opinion that it is necessary for any of these purposes, that will be final and not examinable by the courts and once the Government passes an order of requisition, exercising its powers under S. 3, a wall of immunity will be raised against the court's power to scrutinise and see if the purpose is a public purpose at all; that could not have been intended by the Legislature inasmuch as that will be contrary to the constitutional provisions of Art. 31 (2). Examining this argument from another angle, S. 3 says that the Government can requisition a land if it is necessary for accommodation.
Examining this argument from another angle, S. 3 says that the Government can requisition a land if it is necessary for accommodation. Suppose the district authority of Kamrup who is empowered under this section is of opinion that there is a necessity for accommodation and houses are needed for that purpose, and that fact in the circumstances cannot be challenged either, and if under those circumstances, the Deputy Commissioner, Kamrup requisitions the land for a particular individual, it could be very well argued that the conditions of S. 3 have been complied with inasmuch as the purpose for which the house has been requisitioned is for providing accommodation. It may be that providing accommodation to every individual may not be a public purpose, but in the case of some class of people, it may constitute a public purpose, and if providing accommodation is the limited public purpose, the Act authorises requisition for a non-public purpose also. It will therefore be further necessary for the courts to examine the order of requisition in order to see to accommodate whom this house has been requisitioned so as to come to the conclusion whether it constitutes a public purpose or not. Providing proper facilities for accommodation, transport, communication, irrigation or drainage to every individual may not constitute a public purpose, although if the object of the Legislature is to provide accommodation to people in general or for providing transport, communication, irrigation or drainage to the public in general, the purpose underlying the Act may constitute a public purpose and the Act may be valid. The proper interpretation of S. 3 therefore is that first of all the State Government has to form an opinion that it is necessary in order to maintain supply and services essential to the life of the community and for other objects mentioned in the Act to requisition a land and then it may pass an order in writing requisitioning the land for a public purpose. The words 'maintaining supplies and services' to our mind, are only specifying the object of necessity and are objects about which the Government has to form its opinion. Having formed an opinion, the Government has to pass an order of requisition which still has got to be for a public purpose which is justifiable. The opinion itself may not be examinable by the Courts, but the purpose for which .
Having formed an opinion, the Government has to pass an order of requisition which still has got to be for a public purpose which is justifiable. The opinion itself may not be examinable by the Courts, but the purpose for which . the land is requisitioned will be examinable by the courts. To what extent any determination by the Government is examinable by the courts has been the subject-matter of a series of decisions and it will be necessary to refer to some of them both of English Courts and the Supreme Court. (23) In the case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 (E), the question which was decided was whether the decision of the Government about a public purpose under the Bombay Land Acquisition Ordinance was examinable by means of a writ of Certiorari. Chief Justice Kania in his judgment formulated the questions as follows: "On behalf of appellant it was argued that the opinion of the Government that it is necessary or expedient to pass an order of requisition, stands on the same footing as its decision on the public purpose. In the alternative it was urged that the two factors viz., necessity to requisition and decision about public Purpose form one composite opinion and the composite decision is the subjective opinion of the Provincial Government. The third alternative contention was that the decision of the Government about a public purpose is a fact which it has to ascertain or decide and thereafter the order of requisition has to follow. The decision of the Provincial Government as to the public purpose contains no judicial element in it." The learned Chief Justice preferred to base his decision on the third alternative and according to him as the authorities were not under the statute called upon to decide judicially the existence of public purpose, no writ of certiorari lay. (24) Fazl Ali, J., at page 229 of the report observed as follows : "It is well settled that where an Act or regulation commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith.
Therefore, since the question as to whether it is necessary or expedient to acquire land (given a public purpose) has been left entirely to the satisfaction of the Provincial Government, the opinion formed by it, provided it is formed in good faith, cannot be questioned. In other words, if there is a public purpose, the mere fact that to the Court or to any other person the requisition of the premises does not appear necessary or expedient in the public interest will not make the requisition bad. But the same cannot be said with regard to the decision of the Provincial Government as to the existence of a public purpose, which is the foundation of its power and is a condition precedent to its exercise. If the executive authority requisitions land under S. 3 without there being any public purpose in existence, its action is a nullity and the position in law is as if the authority did not act under S. 3 at all." (25) Patanjali Sastri J., agreed with the judgment of the Chief Justice. Mahajan J., and Mu-kherjea J., gave a dissenting judgment and it is not necessary to refer to their observations in detail. Das J., as he then was, was of the opinion that on the consideration of the provisions of the Act, what has been left to the subjective opinion of the Provincial Government was a composite matter, namely, the necessity or expediency for requisitioning land for a public purpose. The Provincial Government was authorised to form an opinion on the entire matter and every component part of it. In his opinion the words 'in the opinion of the Provincial Government' governed both the purpose and the necessity or expediency of making an order of requisition. At page 253 of the report he observed as follows : "It is well established that if the Legislature simply confides the power of doing an act to a particular body if in the opinion of that body it is necessary or expedient to do it, then the act is purely an administrative i.e.. an executive act as opposed to a judicial or quasi-judicial act, and in the absence of proof of bad faith, the court has no jurisdiction to interfere with it and certainly not by the High prerogative writ of certiorari." ........
an executive act as opposed to a judicial or quasi-judicial act, and in the absence of proof of bad faith, the court has no jurisdiction to interfere with it and certainly not by the High prerogative writ of certiorari." ........ "Sometimes the Legislature may entrust a power to a specified authority to do an act for a certain purpose. Even in such a case, the Legislature may, nevertheless, by appropriate language, leave not only the determination of the necessity or expediency for doing the act but also the determination of the necessity or expediency for doing the act for that purpose as a composite matter to the opinion, satisfaction or discretion of that authority. In such a case what is a condition precedent for the doing of the act is not the actual existence of the particular purpose but the opinion of the specified authority that the purpose exists." (26) In the case of Wijeyesekera v. Festing, 1919 AC 646: (AIR 1919 PC 155) (F), the Governor of Ceylon with the advice of his Executive Council by Ordinance 1876 requisitioned a part of an estate for making a road. The question rose whether the decision of the Governor was examinable by courts of law or not. The provisions of the Ordinance in that case which were relevant were in the following terms : "Whenever it shall appear to the Governor that land in any locality is likely to be needed for any public purpose, it shall be lawful for the Governor to direct the Surveyor-General or other officer generally or specially authorised by the Governor in this behalf, to examine such land and report whether the same is fitted for such purpose. The Surveyor-General or other officer so authorised as aforesaid, shall then make his report to the Governor whether the possession of the land is needed for the purposes for which it appeared likely to be needed as aforesaid. And upon receipt of such report it shall be lawful for the Governor with the advice of the Executive Council to direct the Government Agent to take order for the acquisition of the land." Under the circumstances it was held by Lord Finlay of the Supreme Court of Ceylon that the opinion was not examinable.
And upon receipt of such report it shall be lawful for the Governor with the advice of the Executive Council to direct the Government Agent to take order for the acquisition of the land." Under the circumstances it was held by Lord Finlay of the Supreme Court of Ceylon that the opinion was not examinable. In another case Point of Ayr Collieries Ltd. v. Lloyd George, 1943-2 All ER 546 (G), interpreting the Regulation 55 (4) of the Defence (General) Regulation which was in these terms : "If it appears to a competent authority that in the interest of the public safety, or for maintaining supplies and services essential to the life of the community, it is necessary to take control of the whole or any part of an existing undertaking, the authority could do so," it was held that the decision was not examinable. It was observed by Lord Greene M. R. as follows : "If one thing is settled beyond the possibility of dispute, it is that in construing regulation of this character expressed in this particular form of language, it is for the competent authority, whatever Ministry that may be, to decide as to whether or not a case for the exercise of the powers has arisen. It is for the competent authority to judge of the adequacy of the evidence before it ........" Similar view was taken in another case - Carltona Ltd. v. Commissioners of Works. (1943) 2 All ER 560 (H), In the case of Hubli Electricity Co. Ltd. v. Province of Bombay, AIR 1949 PC 136 (I), Their Lordships of the Privy Council observed as follows : "Their Lordships are unable to see that there is anything in the language of the sub-section or in the subject-matter to which it relates on which to found the suggestion that the opinion of the Government is to be subject to objective tests. In terms the relevant matter is the opinion of the Government - not the grounds on which the opinion is based." (27) In the case of Karanpura Development Co.
In terms the relevant matter is the opinion of the Government - not the grounds on which the opinion is based." (27) In the case of Karanpura Development Co. Ltd. v. Kamakshya Narain Singh, (S) AIR 1956 SC 446 (J), dealing with the question as to whether the decision of the Court of Wards, viz., that a certain transaction was for the benefit of the property and advantage of the ward could or could not be examined; alter considering the observations of the Privy Council in the case of Nakkuda Ali v. M. F. de S. Jayaratne, 1951 AC 66 (K); Liversidge v. Sir John Anderson, 1942 AC 206 (L), the Supreme Court observed as follows : "Examining the language of S. 18 in the light of these observations, we are unable to construe the words 'as it may judge most for the benefit of the property and the advantage of the ward' as equivalent to 'as may be for the benefit of the property aijd the advantage of the ward' or 'as might be judged to be most for the benefit of the property and the advantage of the ward'. The statute confides in clear and unambiguous terms the authority to judge whether the act is beneficial to the estate, to the Court of Wards and not to any outside authority. That being the true scope of the power conferred by S. 18, what are the grounds on which the exercise of such a power could be impugned in a court of law? It can be attacked on the ground that the Court of Wards did not act bona fide and in the interest of the ward, and that its action amounted to a fraud on the power. It can also be attacked on the ground that the Court of Wards did not in fact apply its mind to the question whether the act was for the benefit of the property or the advantage of the ward, and that though it purported to exercise the power under S. 18, it did not in fact come to a judgment as required by the section.
Butt where it has applied its mind and given thought to the question whether the act is for the benefit of the property, or the advantage of the ward and comes to an honest judgment in the matter, its decision is not liable to be questioned on the ground that it was erroneous on the merits, or that it was reached without considering some aspects which ought to have been considered, unless the failure to consider them is of such a character as to amount to there being no exercise of judgment at all." it is true that apparently a dissenting note was struck by Chakravarty, C. J., and Lahiri J., in a Calcutta case, reported in Satya Narayan Nathani v. State of West Bengal, (S) AIR 1957 Cal 310 (M). But on a closure examination of that case, it will appear that the case in fact does not differ from the view which we propose to take in the present case. There can be no dispute that it is not now essential that the purpose be set out in the order itself. It has to be made out to the satisfaction of the court in order to uphold the validity of the requisition order. If the Act under which the requisition order is made is governed by Art. 31 (2) of the Constitution, the question whether the Act at all purports to authorise acquisition or requisition for a public purpose and the question whether a particular order made under it is actually of a public character as contemplated by the Act are both justiciable. Dealing with the earlier case reported in A. C. Mohammad v. Sailendra Nath Mitra, 54 Cal WN 642: ( AIR 1951 Cal 294 ) (N), it was observed at page 315 of the report as follows: "In the view I' am taking of the effect of S. 3 (1), it is unnecessary to consider what its true meaning, as a matter of language is. I may however be permitted to say with respect that I entertain some doubt as to whether it does really carry the meaning which has been ascribed to it in the cases.
I may however be permitted to say with respect that I entertain some doubt as to whether it does really carry the meaning which has been ascribed to it in the cases. The words 'whenever it appears to the State Government that any premises in any locality are needed or are likely to be needed for any public purpose' seem to me to suggest that what it left to the opinion of the Government is not the existence of the public purpose but the need for the land." (28) The Supreme Court in the case of State of Bombay v. R. S. Nanji, (S) AIR 1956 SC 294 (O), dealing with the Bombay Land Requisition Act observed as follows: "It is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a 'public purpose' has been established. Prima facie the Government is the best judge as to whether 'public purpose' is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a 'public purpose'." (29) In the case of AIR 1953 Assam 177 (A). the constitutionality of this Act was upheld. Reliance was placed on the following observation by a learned Judge of this Court in that case: "Express statement that requisition and acquisition under the Act can only be for public purposes, is not necessary to the validity of the Act, where the Legislature confers limited powers on the Executive and specifies the purposes in the Act itself. These purposes however must be public purposes, for, it they are not then the Act may be open to challenge on the ground that it permits requisition or acquisition of property for purposes other than public -a situation which is not countenanced by Art. 31 (2)." From this it is sought to be argued that it was held by this Court that the purpose of the Act was limited and therefore it is not permissible for the authorities to pass an order of requisition for purposes outside the ambit of S. 3. We do not think that this case is an authority for any such proposition.
We do not think that this case is an authority for any such proposition. The case was dealing with the constitutionality of the Act and not merely the validity of the requisition order. (30) On an examination of these authorities, it is clear that in order to sustain a legislation, it is I essential that the requisition or acquisition must be for a public purpose. From the preamble where it is specifically laid down that it is expedient to provide for the requisition and speedy acquisition! of premises and land for certain purposes, it is hereby enacted as follows:- it is clear that the Act contemplates a purpose which is a public purpose. Section 3, when it gives power to the authority to requisition a land, if the necessity exists in its own opinion for certain matters, that gives an indication that the object of the legislature is to authorise requisition for a public purpose and to that extent the legislation cannot be held as being contrary to the provisions of Art. 31 (2). This Court in the earlier case was dealing with the constitutionality of the Act and the observations referred to above only lay down that the Act contemplates requisition for purposes which cannot be anything but public purpose. But the question as to whether on the finding that the requisition was for a public purpose, it is open to this Court to examine the purpose and hold that it is not for the maintenance of supplies and services essential for the life of the community was not before this Court. As we have already discussed, in our opinion, the State Government has to form an opinion that it is necessary in order to meet certain contingencies to exercise its power of requisition and having formed that opinion to requisition the land. Whether the opinion can be formed or not on the materials before the State Government is a matter which has been left to the executive discretion of the Government. But after having formed the opinion when the State Government passes an order for requisition, it is still open to the Courts to examine and see whether the purpose for which the requisition has been made constitutes a public purpose or not and if it is so, the order of requisition will be upheld as being not contrary to the provisions of Art. 31 (2).
If it is held contrary, it will be invalid because it contravenes Art. 31 (2). (31) In the present case, it is not disputed that the acquisition was for a public purpose inasmuch 8S it was for opening a seed farm as a part of the activity of the National Extension Service. The argument only was that opening of the farm cannot be said to be for maintaining supplies essential to the life of the community. The Government formed its opinion that it was necessary for the development of the National Extension Service that the power of requisition should be exercised. Under this argument that the opening of the seed farm cannot be one for maintaining supplies essential for the life of the community, the counsel for the petitioner is asking this Court to examine the opinion of the Government and to come to its own conclusion whether it was necessary to exercise the power of requisition for the object of maintaining supplies essential for the life of the community or not. Apart from it, even if this is examinable, in our mind, the opening of a seed farm as a part of the activity of National Extension Service cannot but be to further the maintenance of supplies essential to the life of the community. The argument of the counsel for the petitioner limits the power to requisition only when some land is acquired for producing goods which are essential for the life of the community, or for storing such foods. Unless that is so, a requisition cannot be Dr the purpose of maintaining supplies essential for the life of the community. It cannot be said that in the modern set up where the State is a Welfare State, a Scheme for the production of the essential commodities will not be regarded as maintaining the supplies essential for the life of the community. If the production can be regarded as maintaining the supply, any step taken to ensure the greater quantity and a better quality of production cannot but be regarded as a step in maintaining the essential supply.
If the production can be regarded as maintaining the supply, any step taken to ensure the greater quantity and a better quality of production cannot but be regarded as a step in maintaining the essential supply. The opening of a seed farm is only a part of the scheme to provide cultivators with the better quality of seeds so that both quality and quantity of production may improve and thus jt cannot be said that the purpose is one which is hot covered by the words "maintaining the supplies essential for the life of the community." (32) In the case of State of Bombay v. R. S. (Nanji (O), the Supreme Court held that the requisition of a part of the building was an order for public purpose as it was essential for the Corporation to accommodate its employees to ensure efficient functioning of the work of the Road Transport system. Although the acquisition was for the Officer of the Corporation, the objective of the Corporation was examined by the Supreme Court and it was said that the objective of the Corporation being a public purpose, the requisition of a house for housing an officer of the Corporation was a public purpose inasmuch as without making proper provisions for its officers, the efficient working of the Corporation was not ensured. We are relying upon this to point out that as it cannot be contended that one of the objectives of the National Extension Service is not to ensure the maintenance of supplies essential for the life of the community, any requisition made for furthering any of the activities of such services, which may consist! in providing quarters to its officers, to provide land' for the development of such institutions and for the opening of the seed farms cannot but be regarded as a part of the maintenance of supplies essential for the life of the community. (33) In this view of the matter, it cannot be said that the order, on the face of it, falls outside the ambit of S. 3 of the Act and there is no force ia this contention and there is no substance in the petitions and we reject them accordingly, but we make no order as to cost. Civil Rule No. 18/58. (34) In this case, by an order dated 20-8-1956, the Deputy Commissioner, Kamrup, requisitioned 20B. and odd land in Beltola mouza.
Civil Rule No. 18/58. (34) In this case, by an order dated 20-8-1956, the Deputy Commissioner, Kamrup, requisitioned 20B. and odd land in Beltola mouza. An appeal was filed against this order by one of the co-sharers who owned this land which was rejected by the order dated 20-9-1957, by the Under-Secretary to the Government of Assam. The land is acquired for a training institute for social welfare. The main ground urged in this case is that the petitioners - Gauri Sankar Guha and Bhupendra Sankar Guha along with their other brothers owned and possessed the disputed land. The petitioner No. 1 is an eye-specialist and the petitioner No. 2 is an advocate practising in this Court. The other brother lives separately and carries on his own business. All the brothers, according to the petitioners, have been in enjoyment and occupation of 7B. IK. 13L. of land in Patta No. 30, of Dag No. 431 in Mouza Beltola in village Maidan of Kamrup district. The ancestral house was too small for them and they intended to make residential houses on the aforesaid land. The petitioners came to know that the land had been requisitioned and a notice was served upon one of their brothers. The petitioners along with their other brothers claimed to be the owners of this land and as such asserted that they were entitled to the notice of the order. In the counter-affidavit, it is stated that the area of 7B. IK. 13L. requisitioned stands in the name of Girija Sankar Guha, Biraja Sankar Guha and Prafulla Kumar Guha in Government records and the land was in occupation and enjoyment of these three brothers. It is denied that the petitioners are the owners of the land under requisition and that they are in its occupation and enjoyment. According to the counter-affidavit, the petitioners along with their others brothers have got 2B. IK. 7L. of .land at Panbazar area of this town and the land in question is situated in an interior village away from Gauhati town where the petitioners are not likely to reside. It is then asserted in the counter-affidavit that the petitioners had a remedy by means of an appeal and that failing to avail it, the petitioners are not entitled to any relief under Art. 226 of the Constitution.
It is then asserted in the counter-affidavit that the petitioners had a remedy by means of an appeal and that failing to avail it, the petitioners are not entitled to any relief under Art. 226 of the Constitution. S. 3 (2)' of the Act provides that "an order under, sub-s. (1) shall be served in the prescribed manner on the owner of the. land and where the order relates to land in occupation of a tenant also on such tenants". Owner has been defined in the Act as meaning a proprietor and as a co-sharer. It is not stated in the counter-affidavit that the present petitioners had any notice of the order. In effect, the contention is that the petitioners are not the co-sharers and have no ownership to the disputed land. The land was held by the father of the petitioners and prima facie it cannot be said that the petitioners will not be the owners of the land. It may be that as the names of only 3 brothers were •on the records, the officer concerned sent notice to them alone. But nevertheless, the petitioners will still be the owners of the requisitioned land as co-sharers, along with their other brothers and were entitled to a notice. It is true that the want of the notice by itself may not make the order without jurisdiction, but when the order is sought to be given .effect to, it is open to this Court to issue a writ of mandamus directing the authorities not to give effect to their order against the applicants who had no notice so as to enable them to satisfy the proper authorities about the validity or otherwise of the order. Reference may be made to the case of Narayan Lal Maheswari v. State of Assam, AIR 1956 Assam 361 (P-Q). In this view of the matter, we allow this petition in so far that we direct that a writ of mandamus be issued against the opposite party not to give effect to the impugned order of requisition as against the applicants. But we make no order as to costs. Civil Rule No. 59/57. & Civil Rule No. 60/57. (35) These two petitions relate to the same property, whereby the order requisitioning IK. 12L.
But we make no order as to costs. Civil Rule No. 59/57. & Civil Rule No. 60/57. (35) These two petitions relate to the same property, whereby the order requisitioning IK. 12L. of land covered by Dag No. 2612 in Periodic Patta No. 134, Mouza Panbari, Town Gauhati, under S. 3 of the Assam Land (Requisition and Acquisition,) Act, by the Deputy Commissioner, Kam-rup by his order dated 31-10-1956, has been challenged. Civil Rule No. 59/57 is the' petition on behalf of the tenant of the premises and No. 60/57 is the petition by the owner of the premises. The claimant Assam Valley Store (Private) Ltd. is a limited company and owns the land with one big shop, one godown, and one kitchen standing on the land covering an area of IK. 12L. in Dag No. 2612 in P. P. No. 134. Since the year 1935, the petitioner-company was running a departmental store. The shop was closed in the year 1951 and it was let out to the Delight Restaurant at a monthly rent of Rs. 500/-. The petitioner in C. R. 59/57 is the tenant of the said premises. (36) The State Khadi and Village Industries Board was keen for purchasing the aforesaid property and sent a letter dated 2-8-1956 with an extract of the proceedings of the Board meeting held on 27-7-1957. Two people representing the Khadi Bhandar approached the petitioner in October, 1956 and offered to purchase the shop premises on their behalf. According to the petitioner, thereafter one Liladhar Barua was sent to purchase the same at Rs. 58,000/-. The petitioner did not agree to that offer as according to them the share-holders had fixed the price at a much higher amount. There was another letter sent by Sri C. Pathak, Assistant Secretary of the Board offering to purchase the premises at Rs. 56.000/-. The petitioner replied to the aforesaid letter intimating that the share-holders of the company had fixed the price _at Rs. 62,000/- for the said premises along with the land. As such, the offer of the Assistant Secretary was not accepted. Within a fortnight of the said reply, the property was requisitioned by the Deputy Commissioner, Kamrup and a notice to that effect is purported to have been served on the heirs of late Jogesh Chandra Sen, care of Dr. Keshab Chandra Sen. The validity of this notice has also been challenged.
Within a fortnight of the said reply, the property was requisitioned by the Deputy Commissioner, Kamrup and a notice to that effect is purported to have been served on the heirs of late Jogesh Chandra Sen, care of Dr. Keshab Chandra Sen. The validity of this notice has also been challenged. The order of requisition was passed on 31-10-1956 and on 1-12-1956 the petitioner preferred an appeal before the Government. The appeal was admitted and a letter was received by the petitioner to the effect that the date of hearing was fixed for on 8-5-1957. The counsel for the petitioner went to Shillong on 7-5-1957 and came to know that the date had been adjourned. On 10-5-1957 the petitioner received an intimation from the Superintendent, Revenue Department, that the date of hearing of the appeal was fixed for 16-5-1957, and an application was sent by the petitioner for adjourning the hearing till 18-5-1957 or any subsequent date. When the counsel for the petitioner went to Shillong on 18-5-1957 he was informed that the appeal was already dismissed on 16-5-1957. The order of requisition has thus been challenged on a number of grounds. (37) It is firstly contended that the order is mala fide. Negotiations were going on for the purpose, an offer of Rs. 58,0007- was made to the company which had not been accepted. In the circumstances, the order of requisition was passed with the primary object of speedily acquisitioning the land under the statutory powers and thus bypassing the negotiations which were going on between the parties for the purchase of the land. It is also contended that the purpose for which the premises are said to have been requisitioned, namely for locating the Sarkari Khadi Bhandar cannot be regarded as a public purpose. In the affidavit-in-opposition, it is stated that the name of late Jogesh Chandra Sen was recorded as the owner of the land. The building had been let out on rent to the present tenant by him. As Shri Jogesh Chandra Sen was dead, the requisition notice was served on his heirs through Dr. Keshab Chandra Sen. It is further urged that the State Khadi Bhandar for which the land has been requisitioned was started by the State Khadi and Village Board of Assam which was constituted under Assam Act XVI of 1955.
As Shri Jogesh Chandra Sen was dead, the requisition notice was served on his heirs through Dr. Keshab Chandra Sen. It is further urged that the State Khadi Bhandar for which the land has been requisitioned was started by the State Khadi and Village Board of Assam which was constituted under Assam Act XVI of 1955. The Government are going to convert the Bhandar into a State Emporium to be sponsored by the All India Khadi and Village Industries Board, and as such it was a part of All India Programme of National Development. (38) In the petition filed on behalf of the tenant of the premises, the main ground taken is that the requisition is not for public purpose. We have considered the matter and in our opinion under the circumstances of this case, it can reasonably be held that the order was not a bona fide one. The negotiation for the purchase of these premises were going on which fell through on account of proper price being not offered. This method was then resorted to in order to ultimately acquire the land. On the premises there are buildings which are tenanted. The opposite party might have thought that even if they succeed in purchasing the land from the ov/ner, they might have some difficulty in ejecting the tenant and in order to circumvent that, this indirect method was adopted first to requisition it and then to eject the tenant, get into the possession of the property and then acquire it. The whole object of the requisition order was to eject the tenant and then acquire the land with building thereon. The order was thus, in our opinion, mala fide. (39) The purpose for which the building is being requisitioned with the land can also not be regarded a public purpose. It is true that the Assam Khadi and Village Industries Board Act was passed in the year 1955 with the object of developing the Khadi in the State and the village industries which is certainly a public purpose. It may be that if any land is acquired for the furtherance of the activities of the Board, it may constitute a public purpose.
It may be that if any land is acquired for the furtherance of the activities of the Board, it may constitute a public purpose. The State Khadi Board at Gauhati is said to have been established under the Assam Khadi and Village Industries Board in 1955 for making Khadi popular among the people of the area and as such it may legitimately be argued that the premises requisitioned for locating such an enterprise may constitute a public purpose, but when it is clear that the State Khadi Bhandar is functioning well in another fine building in the same area, the present building is in the occupation of a tenant and to get it vacated from one tenant and to put in another may not constitute a public purpose. It is purely an individual purpose. In cases where, in order to give effect to a part of a development scheme, some land may be acquired or requisitioned for an individual, such acquisition or requisition may still be regarded as for public purpose. But where the whole purpose of the requisition is to provide accommodation to an individual concern, howsoever beneficial that concern may be, it cannot be said to be for a public purpose. (40) Acquisition or requisition of property for public purpose includes whatever results in an advantage to the public. It is not necessary that it should be available for public use as such. It may be in favour of individuals, provided they are benefited by the scheme of the public utility. In America, where the word 'public use' has undergone much change, it has however been held that taking of property from one for the purpose of transferring it to another without anything more does not conform to due processes of law. Some public benefit or advantage must accrue from the transfer and mere financial gain to the taker is not enough, Brown v. U. S. A., (1923) 263 US 78 (R). It is also significant to note that in the Assam Act, there is no provision made for providing an alternative accommodation to the tenants who arc in occupation of the buildings which are requisitioned as attached to the land. A tenant, though he may have been residing in the building for a long time, will be thrown out on the streets on the sweet will of the executive. This cannot be countenanced by the Act.
A tenant, though he may have been residing in the building for a long time, will be thrown out on the streets on the sweet will of the executive. This cannot be countenanced by the Act. In the proviso to S. 3, it has no doubt been laid down that no building or part thereof wherein the owner has actually resided for a continuous period of one year immediately preceding the date of the order shall be requisitioned under this section. There appears to be no reason why the principle should be different in the case of tenants who are residing in the building. There is provision for providing alternative accommodation in a number of such legislation in other States. Having regard to all these facts, we are also of the opinion that the requisition in the present case cannot be regarded for public purpose. (41) In the result, therefore, we would allow these two petitions, set aside the order of requisition dated 31-10-1956 with costs. Hearing fee is assessed at Rs. 100/- consolidated.. (42) H. DEKA J. : I agree. ORDER: Mr. Ghose for the petitioners has prayed for leave to file appeal to the Supreme Court and for a certificate under Art. 132 of the Constitution in regard to Civil Rule No. 9/54 (Nandeswar Chakravarty v. The State of Assam) and Civil Rule No. 4/56 (The Brahmaputra Tea Co. Ltd.). In our opinion these cases involve a substantial question of law as to the interpretation of the Constitution and we accordingly grant the leave as prayed for. G.M.J. Petitions dismissed : Leave to appeal granted