Judgment 1. THE appellant is the owner of the land and building at No. 1/6, Prince Golam mohammad Road, Calcutta. One D. C. Goswami was a tenant of the entire ground floor of the building. The appellant obtained a decree for ejectment of the tenant, and started proceedings for execution of the decree. The connected Misc. Case was disposed of on July 23, 1960 in terms of a compromise by which the tenant agreed to vacate the premises on the expiry of October 1960. On October 31, the executing court rejected an application by the tenant for further time till November 3, and issued a writ for delivery of possession of the premises. Before this writ could be executed, the State Government passed an order on November 2, under section 3 (1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act V of 1947) requisitioning the premises and directing the 1st Land Acquisition Collector, Calcutta to take possession of it. The order stated that "in the opinion of the State Government the premises. . . . . . . . . . . . are needed for a public purpose. " On November 3, the Collector took possession of the requisitioned premises from the tenant and under his orders one Shri A. S. Nag occupied the premises. On the same day the bailiff of the Alipore Court visited the premises, but was unable to execute the writ for delivery of possession. 2. THE appellant was unable to persuade the Government to cancel the requisitioning order. On April 27, 1961 she obtained a Rule calling upon the respondents to show cause why they should not forbear from giving effect to the requisitioning order and all consequential orders and notices and why those orders and notices should not be quashed and set aside. On August 10, 1961 Sinha, J. discharged the Rule. He rejected the appellant's contention that (a) the impugned order was not supported by any public purpose and that (b) it was passed malafide and in collusion and conspiracy between the tenant and the other respondents. The appellant challenges this finding. The respondents support it and also contend that the factual existence of a public purpose is not justiciable, and the subjective satisfaction of the State Government in this behalf is final. The appellant challenges this finding. The respondents support it and also contend that the factual existence of a public purpose is not justiciable, and the subjective satisfaction of the State Government in this behalf is final. The questions which arise in this appeal are (1) Is the factual existence of a public purpose for a requisition under Act V of 1947 justiciable? (2) If so, was the order of requisition supported by a public purpose? (3) Was the order passed malafide? west Bengal Act V of 1947 was passed on January 1, 1948. Originally it was to remain in force up to March 31, 1950, but section 1 (4) authorised the Provincial Government to direct by notification in the official gazette that it shall remain in force for a further period or periods not exceeding in the aggregate three years. Though no notification was issued by the Provincial government under section 1 (4) the act was not allowed to expire on 1.3.1930. The life of the Act was extended from time to time up to 31.3.1953 by Act 15 of 1950 passed on 30.3.1950, up to 31.3.1954 by Act 10 of 1953 passed on 28.3.1953. up to 31.3.1951 by Act 7 of 1954 passed on 29.3.1954, up to 31.3.1958 by Ordinance 2 of 1957 passed on 29.3.1957, up to 31.3.1960 by Act 9 of 1957 passed on 15.7.1957, up to 31.3.1963 by Act 2 of 1960 passed on 19.3.1960, up to 31.3.1964 by Act 9 of 1963 passed on 30.3.1963, and up to 31.3.1966 by Act 29 of 1963 passed on 15.10.1963. 3. SUBSTANTIAL amendments in the body of the principal Act were made by Act 14 of 1949 passed on 3.3.1949 and by the aforesaid Act 7 of 1954 and Act 29 of 1963. Bearing in mind the past history and the policy of the legislature, it is unlikely that the Act will be allowed to expire on 31. 3. 1966. It is reasonable to think that the Act will not be allowed to expire in the near future and a requisition made under the Act will continue for an indefinite duration. Section 3 (1) of the Act empowers the State Government to requisition any premises, as defined in section 2 (e) if it appears to Government that the premises are needed or likely to be needed for any public purpose. Section 3 (1) of the Act empowers the State Government to requisition any premises, as defined in section 2 (e) if it appears to Government that the premises are needed or likely to be needed for any public purpose. On the requisition of the premises, the Collector may by order under section 4 (1) direct the person in possession of the premises to vacate it, and this order may be summarily executed under section 9. Section 6 provides that the State Government may use or deal with the requisitioned premises for such public purpose and in such manner as may appear to it to be expedient. Sections 11 to 14 provide for payment of compensation, and the machinery of fixing it. By section 3 (4), the requisitioning order under section 3 (1) is made final. Section 21 (1) provides that no order passed under the Act shall be called in question in any Court. 4. THE course of decisions under the Act may briefly be noticed, In Sudhindra Nath Dutt v. Sailendra Nath Mitra, (1) 87 C. L. J. 140 decided on May 23, 1950, Harries, C. J. and Banerjee, J. held that the Act was not ultra vires the constitution, that as it was passed well over two years before the Constitution came into force, it was protected from an attack based on article 31 (2) as it stood before the 4th amendment, that as a matter of fact the act satisfied the requirement of article 31 (2), that article 19 (1) (5) had no application where the State compulsory acquired property or obtained possession of it, that the Act deprived a person of possession of the property altogether at least temporarily and did far more than restrict his right to hold the property as that phrase was used in article 19 (1) (5), that the requisitioning order was an administrative act, and a person affected by it was not entitled to a hearing before it was made. In A. C. Mohamad v. Sailendra Nath (2) 54 C. W. N. 642 decided on May 24, 1950, Harries, C. J. and Banerjee, J. held following Wijaysekra v. Festing (3) 1919 A. C. 646 that the requisitioning order, if made in good faith, was not open to challenge, and that the opinion of the government that the premises were required for a public purpose was final and it was not competent to the Court to investigate the grounds or the reason-ablenes of the decision. In Janab Abdul Hamid v. The State of West Bengal (4) 89 C. L. J. 268 decided on February 27, 1952, H. K. Bose, J., as he then was, held following Bela Banerjee's case that the Constitution has brought about a change and the question whether a requisition under the Act is for a public purpose is justiciable in a Court of law. In Srinivas Khedwal v. The State of West Bengal (5) 57 C. W. N. 719 decided on May 12, 1953 Das and Debabrata Mookerjee, JJ, held that the Act was an existing law within the meaning of article 31 (5) of the Constitution, that accordingly the principle of Bela Banerjee's case did not apply, and the constitutionality of the Act could not be canvassed, that the factual existence of a public purpose depended entirely on the subjective satisfaction of the Government and was not justiciable, and that the decision in Abdul Hamids case rested on unsound foundations. In Satyanarayan Nathani v. The State of West Bengal (6) 61 C. W. N. 420 decided on February 1, 1958 Chakravartti, C. J. and Lahiri, J. held that on July 10, 1952 when the requisitioning order was passed, the Act was not, having regard to the extensions of its life and the amendments made in it by the amending Act, an existing law within the meaning of article 31 (5), that article 31 (2) applied, and the question whether the Act authorises requisition for a public purpose and also whether a particular order made under it was actually supported by a public purpose were both justiciable. In Paresh Nath nundi v. State of West Bengal (7) 68 C. V. N. 264 decided on November 22, 1963, Bose, C. J. and G. K. Mitter, J. following the decision in Satya Narain Nathani's case went into the question whether the requisitioning order was supported by a public purpose. In Paresh Nath nundi v. State of West Bengal (7) 68 C. V. N. 264 decided on November 22, 1963, Bose, C. J. and G. K. Mitter, J. following the decision in Satya Narain Nathani's case went into the question whether the requisitioning order was supported by a public purpose. In many other cases learned single Judges have followed Satya Narain Nathani's case on this point. Section 3 (1) of West Bengal Act V of 1947 authorises the State Government to requisition any premises by an order in writing ''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", and this order is by section 3 (4) made final. Now on a purely textual interpretation, the section may mean that the subjective satisfaction of the State Government as to the existence of the public purpose is final and not justiciable. On the other hand, in the background of a constitutional guarantee that a law cannot provide for acquisition or requisition save for a public purpose, the section must be construed to mean that the opinion of the Government is final as to the need only, but it is not final as to the existence of the public purpose. Any law which makes the subjective satisfaction of the Government with regard to the existence of the public purpose final would indirectly enable the Government to make requisitions for private purposes and would be violative of the constitutional guarantee, see The State of West Bengal v. Bela Banerjee and others, (8) 1954 S. C. R. 558, 561. Where a law is capable of two constructions, one of which would make it bad and the other good, we should adopt that construction which would uphold its validity, see In Re. Hindu Women's Right to property Act (9) A. I. R. 1941 F. C. 72. 5. NOW on a purely textual interpretation of the section, it was held in A. C. Mohamad's case (2) 54 C.W.N. 642, and Srinivas Khedwal's case (5) 57 C. W. N. 719 that the opinion of the Government as to the existence of a public purpose was final and not justiciable. 5. NOW on a purely textual interpretation of the section, it was held in A. C. Mohamad's case (2) 54 C.W.N. 642, and Srinivas Khedwal's case (5) 57 C. W. N. 719 that the opinion of the Government as to the existence of a public purpose was final and not justiciable. In the case of Province of Bombay v. Khushaldas S. Advani (10) (1950) 1 S.C.R. 620 A.I.R. 1950 S.C. 222, the Supreme Court had occasion to deal with a requisitioning order under section 3 of the Bombay Land Requisition Ordinance V of 1947 which provided that "if in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by order in writing requisition any land for any public purpose." Kania, C. J. Fazal Ali, Patanjali Sastri and Das, JJ. held that the order of requisition was an administrative act and was not amenable to a writ of certiorari, whereas Mahajan and Mukherjjea, JJ. held that the order was a quasi Judicial act and could be quashed by the writ of certiorari. Nevertheless. Kania, C. J., Fazal Ali, Patanjali Sastri, Mahajan, and Mukherjea, JJ. held that under section 3 of the Bombay ordinance the factual existence of a public purpose was an essential prerequisite to any action under it and was therefore open to challenge, and in the opinion of those Judges who held that the writ of certiorari could not issue, such a challenge could be made in a suit only, see pages 637, 640-647, 648, 660, 678-9 of the Supreme Court Report, whereas Das, J. held that the opinion of the Government as to the existence of a public purpose was final, see 705 of the Supreme Court Report. But it is interesting to notice that both Mukherjea, J. and Das, J. at pages 681 and 714 of the Supreme Court Report expressly approved of the decision in A. C. Mohamad's case 54 C. W. N. 642. Mukherjea, J. said, "it may be pertinent to point out in this connection that a similar provision in s. 3 (1) of the West Bengal Premises Requisition and Control Act has been expressed in a different language and the actual existence of a public purpose has not been made a condition precedent to the exercise of powers by the Provincial Government. On the authorities as they now stand, we must hold that on a purely textual interpretation of the section and in the absence of a constitutional guarantee that the property could not be requisitioned save for a public purpose, the subjective satisfaction, of the Government as to the existence of a public purpose would be final. 6. ARTICLE 31 (2) of the Constitution after the fourth amendment provides a constitutional guarantee that no property shall be compulsorily acquired or requisitioned save for a public purpose. Before the fourth amendment the constitutional guarantee embodied in the section was even wider. On the date of the commencement of the constitution, West Bengal Act V of 1947 was an existing law covered by clause 5 of article 31 and immune from an attack based on Article 31 (2. After the Constitution came into force, by different Acts passed from time to time, the life of the principal Act was extended and substantial amendments were made therein. Srinivas Khedwal's case (5) 57 C. W. N. 719 was decided on the footing that inspite of the amending Act IV of 1949 passed within 18 months of the commencement of the Constitution, the principal Act was an existing law covered by Article 31 (5) and the existence of public purpose was not justiciable. In Satyanarayan Nathani's case (6) 61 C. W. N. 420 it was however held that having regard to the subsequent Acts passed after the commencement of the Constitution and also within 18 months before it, by which the life of the principal Act was extended and substantial amendments were made therein, the principal Act was not an existing law within Article 31 (5), but was an Act to which the provisions of Article 31 (2) applied. In corning to this conclusion, the Bench relied upon the decision in State of Bombay v. Bhanji Munji (11) (1955) 1 S.C.R. 777 where the Supreme Court examined the constitutionality of The Bombay Land Requisition Act (Bombay Act XXXIII of 1948) by reference to article 31 (2). In corning to this conclusion, the Bench relied upon the decision in State of Bombay v. Bhanji Munji (11) (1955) 1 S.C.R. 777 where the Supreme Court examined the constitutionality of The Bombay Land Requisition Act (Bombay Act XXXIII of 1948) by reference to article 31 (2). though that Act was passed on April 11, 1948 more than 18 months before the commencement of the Constitution, and the Bench thought that the Supreme Court must be taken to have decided that Bombay Act XXXIII of 1948 was not an existing law covered by article 31 (5) f because by Bombay Acts II of 1950 and XXIX of 1950 passed after the Constitution came into force the life of the principal Act was extended and substantial amendments were made therein. But it is to be observed that in Bhanji Munji's case the Supreme Court assumed rather than decided that the principal Bombay Act XXXIII of 1948 was not an existing law within the meaning of article 31 (5). In the case of Lilavati Bai v. State of Bombay (12) 1357 S.C.R. 721 A.I.R. 1957 S.C. 521, the Supreme Court held that the principal Bombay Act was covered by clause 5 (a) of article 31, being an existing law other than a law to which the provisions of clause 6 of article 31 apply and would be valid even though the provisions of clause 2 of the article were not fully satisfied, and the aforesaid amending Bombay Acts II of 1950 and XXIX of 1950 were merely extensions or explanatory of the existing substantive law and were not such laws as are referred to in clause 3 of the article and consequently were not invalid though they had not received the assent of the President. The plain implication of this decision is that the principal Bombay Act XXXIII of 1948 continued to be an existing law covered by clause 5 of article 31 inspite of the extensions of its life and the amendments made in it by the amending Acts passed after the commencement of the Constitution. 7. ACCORDINGLY, Bose, J., as he then was, held in the case of Sm. Kamala Bala v. State of West Bengal (13) A. I. R. 1962 Cal. 7. ACCORDINGLY, Bose, J., as he then was, held in the case of Sm. Kamala Bala v. State of West Bengal (13) A. I. R. 1962 Cal. 269 that the West Bengal Land Requisition and Acquisition Act (II of 1948) passed on March 11, 1948 inspite of the extension of its life and substantial alterations made in it by West Bengal Ordinance V of 1957 and West Bengal Act XII of 1957 could not, in view of the decision in Lilavati's case, be regarded as a statute passed or enacted after the Constitution (4th amendment) Act, 1955. He observed that the decision in Satyanarayan Nathani's case (6) 61 C. W. N. 420 on this particular point cannot be regarded as good law in view of the decision of the supreme Court in Lilavati's case (12) A. I. R. 1957 S. C. 521. We agree with the observation of Bose, J., as he then was, on this point. We hold that West Bengal Act V of 1947, inspite of the extensions of its life and the substantial amendments made therein by the subsequent Act, is an existing law covered by clause 5 of article 31. We are, therefore, unable to interpret this Act in the light of the constitutional guarantee embodied in article 31 (2) of the Constitution and on that basis to hold that the existence of a public purpose is justiciable and that the opinion of the Government in this behalf is not final. 8. MR. Deb, however, contends that tested in the background of the constitutional guarantee embodied in the Government of India Act, 1935 which was in force when West Bengal Act V of 1947 was passed, we must hold that the existence of a public purpose is justiciable. Now section 299 (2) of the Government of India Act provided that neither a Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquisition for public purposes of any land, unless the law provided for the payment of compensation for the property acquired and either fixed the amount of the compensation or specified the principles on which, and the manner in which it was to be determined. By section 299 (5) the word "land" included immovable property of every kind and any rights in or over such property. By section 299 (5) the word "land" included immovable property of every kind and any rights in or over such property. Besides, land as defined in section 3 of the English Interpretation Act, 1889 includes "messages, tenements, and hereditaments, houses and buildings of any tenure" and by sections 3 and 31 of that Act this definition, unless the contrary intention appears, applies to the Government of India Act, 1935 and to all instruments issued under it. The word "land" in section 299 (2) would therefore cover buildings and huts as also premises as defined in West Bengal Act V of 1947. The argument of Mr. Deb is that the word "acquisition" in section 299 (2) included "requisition" and that the section provided a constitutional guarantee that the legislature could not make any law authorising the compulsory requisition of any land save for a public purpose. In form suction 299 (2) was a fetter on the competency of the legislature, but in substance it was a positive guarantee of the citizen's right to property, and this constitutional guarantee in a different form was lifted into the category of a cherished fundamental right and was embodied in article 31 of the Constitution, see Dhirubha Devisingh v. State of Bombay (14) A.I.R. 1955 S.C. 47. The section limited the power of compulsory acquisition of land by the State. Land included immovable property and "any rights in or over such property", which meant derivative rights, like interests carved by an owner, a lessee, mortgagee, etc, see Guru Datta Sharma v. The State of Bihar (15) (1962) 1 S. C. J. 382, 395. Any law providing for compulsory acquisition of land or the derivative rights in it must satisfy two conditions. The law must provide for compensation, i. e., a just equivalent of the thing acquired, see State of West Bengal v. Bon Behari Mondal (16) 64 C. W. N. 722, State of Orissa v. Saiyabadi Panda and others (17) A. I. R. 1961 Orissa 196, applying The State of West Bengal v. Mrs. Bela Banerjee and others (8) 1954 S. C. R. 558. It makes no difference that the law is temporary, see Bon Behari's case 64 C. W. N. 722. The second condition was that the law could authorize the acquisition for a public purpose only. Bela Banerjee and others (8) 1954 S. C. R. 558. It makes no difference that the law is temporary, see Bon Behari's case 64 C. W. N. 722. The second condition was that the law could authorize the acquisition for a public purpose only. The last condition is implicit in section 299 (2) and, we may observe also implicit in article 31 (2), see Somawanti v. The State of Punjab (18) A.I.R. 1963 S.C. 151, 160 (para 20). Thus an essential limitation of a law authorizing the compulsory acquisition of land, where the law is subject to section 299 (2) is that the acquisition must be for a public purpose only. A law providing acquisition for private purposes would be repugnant to section 299 (2) and would be invalid. The invalidity would not be cured by the Constitution, except where it expressly says so, e. g., in article 31 (6). 9. WE think the word "acquisition" in section 299 (2) includes the requisition of land for the use and occupation of the Government, Every injurious affection of property short of acquisition is not action of the nature described in section 299 (2). To come within the scope of the section the law must be a confiscatory legislation. No acquisition of land of any rights in or over it is involved in a law which increases the land revenue, see Rao Bahadur Kunwar Lal Singh v. The Central Provinces of Berar, (19) 1944 F. C. R 284, 294, or which "regulate (s) the relations of landlord and tenant and thereby diminish (es) rights, hitherto exercised by the landlord in connection with his land", see Thakur Jagannath Buksh Singh v. The United Province (20) 73 I. A. 123 A. I. R 1946 P. C. 127, 130 affirming A. I. R 1943 F. C. 29, 33, Hula Narain Singh v. Deen Mohammad Mian (21) A. I. R. 1943 F. C. 9. In Jagannath Baksh Singh's case 73 I. A. 123 Lord Wright said "in the present case there is no question of confiscatory legislation''. A Motor Vehicles Amendment Act imposing restrictions on the business of a stage carriage operator does not involve the acquisition of a commercial undertaking, see Bhikaji Narain v. State of Madras (22) (1955) 2 S. C. R. 589a. I. R. 955 S. C. 781. In that case s. K. Das, Atg. A Motor Vehicles Amendment Act imposing restrictions on the business of a stage carriage operator does not involve the acquisition of a commercial undertaking, see Bhikaji Narain v. State of Madras (22) (1955) 2 S. C. R. 589a. I. R. 955 S. C. 781. In that case s. K. Das, Atg. C. J. said that the word "acquisition" in section 299 (2) "had the limited meaning of actual transference of ownership" as held in Lai Singh's case, and "not the wide meaning of deprivation of any kind" given by the Supreme Court to the word acquisition appearing in article 31 (2) before the Fourth Amendment. We think that in Bhikaji Narain's case (22) S. K. Das Atg. C. J. was only summarizing what Spens, C. J. said in Lal Singh's case. (See the comments of Subha Rao, C. J. in Venkata Chalamayai case (23) A. I. R. 1958 Andhra Pradesh 173. Now in Lai Singh's case (19) 1944 F. C. R. 284, 294 Spens, C. J. said that acquisition implies transference of land or of rights in or over it, but he did not say that acquisition implies "transference of ownership" of the land. He said "it further seems to us that the word "acquisition" implies that there must be actual transference of and it must be possible to indicate some persons or body to whom is or are transferred, the land or rights referred to. It is impossible, in our view, to suggest that when the land revenue is increased, there is any transference to the Provincial Government or any other person of any land or rights in or over immovable property, which remains in the same possession or ownership as immediately before the increase of the assessment Consistently with the test laid down by Spens, C. J., compulsory acquisition may include compulsory transference of possession for the beneficial enjoyment of the Government to the exclusion of the owner. A law which provides for the compulsory control and management of a forest subject to payment to the landlord of the net profits accruing from the working and management of the forest and providing that during such management, the landlord will not be competent to deal with, mortgage or lease the forest, does not involve compulsory acquisition of land, see Guru Dutta Sharma v. The State of Bihar (15) (1962) 1 S. C. J. 382, 395. Rajagopalan, J. observed "the contention urged by learned Counsel for the appellant that the deprivation of the land holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts' to acquisition of land within section 299 (2) of the Government of India Act, 1935, must be rejected. Property, as a legal concept is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All these of course would be subject to the relevant law procedural or substantive bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constitute "property". So understood there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within section 299 (2) of the Government of India Act, 1935. Apparently, this luminous and well balanced statement of the law was necessary, because their Lordships did not consider the formula of "transference of ownership" to be sufficient. The compulsory management and control of land subject to a liability to account to the owner for the net profits of the land is no more an acquisition of land than the management and taking over of the estate of a disqualified proprietor by the court of wards. The beneficial enjoyment of the income by the owner is not affected. The State takes over the burden of management and control, and it makes no acquisition, see K. C. Venkata Chalamayya v. State of Madras (23) A. I. R. 1958 Andhra Pradesh 175. No one would say that the State, by taking over this burden satisfies its greed or its acquisitive instinct. You do not take my land considered as a bundle of rights, when you injuriously affect one or more of the individual strands of the bundle or when you restrict my use and enjoyment of it. No one would say that the State, by taking over this burden satisfies its greed or its acquisitive instinct. You do not take my land considered as a bundle of rights, when you injuriously affect one or more of the individual strands of the bundle or when you restrict my use and enjoyment of it. But you do take my land when by authority of law and without my consent you take possession of it, enjoy and appropriate to yourself its income and exclude me from its beneficial enjoyment altogether for an indefinite period. I say that, by such compulsory transference of possession and enjoyment, you take, acquire, confiscate and seize my land, and it matters not that the title in the land or any derivative right in or over it has not vested in you. Rajagopalan, J, considered that the principles laid down in Belfast Corporation v. G. D. Cars Ltd, (24) L. R. I960 A. C. 490 were apt as an aid in the construction of the content of the expression "acquired" in section 299 (2. In the case last cited the House of Lords held that the restrictions imposed by the Irish Planning Acts on the space about buildings, the number of buildings to be erected and the height, character or user of the buildings could not be described as an authorisation to "take any property without compensation" in contravention of section 5 (1) of the Government of Ireland Act, 1920. Viscount Simonds said at page 517 that "any one using the English language in its ordinary signification'' would agree that "property" is a word of very wide import, including intangible and tangible property. But he would surely deny that anyone of those rights which in the aggregate constituted ownership of property could itself and by itself aptly be called "property"' and to come to the instant case, he would deny that the right to use the property in a particular way was itself property, and that the restriction or denial of that right be a local authority was a "taking", " taking away" or "taking over" of "property". In every civilized society, the owner is restricted in his free enjoyment of the property by building regulations and to say that a law imposing those restrictions was a law authorising the taking of the property was surely a fanciful argument. In every civilized society, the owner is restricted in his free enjoyment of the property by building regulations and to say that a law imposing those restrictions was a law authorising the taking of the property was surely a fanciful argument. Viscount Simonds said also at page 519, "nor would I cast the least doubt upon the decision in Dalziel's case (25) (1944) 68 C. L. R. 261 or anything that was said by the learned Judges who decided it. But having said so much, and fully recognising the distinction that may exist between measures that are regulatory and measures that are confiscatory, and that a measure which is ex facie regulatory may in substance be confiscatory, I must add that, if, as I suppose it is, the question is one of degree and the dividing line is difficult to draw, yet I have no doubt that such an enactment as the Act of 1931, and in particular section 10 (2), falls well on the regulatory side of it. "Now in the case of Minister of State for the Army v. Dalziel (25) (1944) 68 C. L. R. 261 Rich, Starke, Mctiernan and Williams, JJ. of the High Court of Australia (Latham C. J. dissenting) held that the taking under regulation 54 of the National Security (General) Regulations by the Commonwealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within section 51 (xxxi) of the Australian Constitution, and that in the particular case the taking constituted an acquisition of Dalziel's right to use the land of which he was the occupier and weekly tenant and on which he had erected a car parking station with the permission of the owner. Rich, J. said that "the Minister has seized and taken away from Dalziel everything that made the weekly tenancy worth having and left him with the empty husk of tenancy." Rich, J. also said that it would be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorizing an acquisition of a citizen's full rights except upon just term, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely on any terms it chooses or upon no terms at all. Mctiernan, J. said, "the acquisition of the possession of land is an instance of the acquisition of property. Mctiernan, J. said, "the acquisition of the possession of land is an instance of the acquisition of property. " Starke and Williams, JJ. were of the same opinion, Mahajan, J. in Dwarkadas Shrinivas's case (26) (1954) 1 S. C. R. 674, 702-4 agreed with the opinion of Rich, J. and of the majority of the Court in Dalziel's case. Patanjali Sastri, C. J. and Das, J. also quoted with approval portions of the judgment of Rich, J. in Chiranjitlal Chowdhuri's case (27) (1950) 1 S. C. R. 869 at 908-9, 921-2. Compulsory acquisition in a comprehensive sense includes indefinite use and occupation and is so treated in our basic law relating to land acquisition. Part VI of the Land Acquisition Act, 1894 provides for temporary occupation of waste or arable land for a public purpose on payment of compensation. 10. IN Attorney General v. De Keyser's Royal Hotel Limited (28) L. R. 1920 A. C. 508, 569 Lord Parmour said, "it is not easy to see what the distinction is between disseising and an indefinite use and occupation, which may extend beyond the estate of any particular owner. " Compulsory vesting of title and compulsory use and occupation for an indefinite period are but different forms of compulsory acquisition and are subject to the constitutional guarantee embodied in section 299 (2. The laws authorizing acquisition create an original right in the Government rather than effect a transfer of the right, title and interest of the owner. Section 16 of the Land Acquisition Act, 1894 vests the acquired land absolutely in the Government free from in cumbrances. West Bengal Act V of 1947, instead of vesting in the Government an estate or interest known to the general law creates a special statutory right to take possession of the property, and on possession being taken, to use, occupy and deal with the property to the exclusion of the owner. The Act creates a special right of property and nothing is gained by comparing it with other absolute and limited rights recognized and protected by the law. In Dalziel's case, Starke, J. said, "the right conferred upon the Commonwealth may be classified, I think under the denomination of jura In re aliena, and so a right of property, the subject of acquisition. Nothing is gained by comparing the right given by Reg. In Dalziel's case, Starke, J. said, "the right conferred upon the Commonwealth may be classified, I think under the denomination of jura In re aliena, and so a right of property, the subject of acquisition. Nothing is gained by comparing the right given by Reg. 54 to the Commonwealth with various estates or interests in land of limited duration or with rights over the land of another recognized by the law, for it is a right created by a statutory regulation and dependent upon that regulation for its operation and its effect" There is a real distinction between taking and other measures short of taking. Sometimes it may be difficult to draw the dividing line, but more often one may easily say on which side of the line, the action lies. You do not take my animal, when you maim it, but you do take it when you carry it away and use it for ever or for an indefinite period. A savage conqueror takes the wife of a peaceful inhabitant, when he forcibly marries her, and also when he keeps her as a concubine for an indefinite period, but he does not take her when he commands the husband not to visit his wife. The king does not take the land of the subject, when he commands the subject to use the land in a particular manner, but he does take the land when he forcibly vests the title to the land in himself. He also takes land when he occupies and enjoys it for an indefinite period to the exclusion of the owner. In such a case it was well said by Rich, J. in Dalziel's case that "you take my house, when you do take the prop, that doth sustain my house; you take my life, when you do take the means whereby I live." 11. IN Tan Bug Taim v. Collector of Bombay (29) A. I. R. 1946 Bom, 216, Bhawati, J, held that section 2 (2) (xxiv) of the Defence of India Act and Rule 75a of the Defence of India Rules authorising the requisition of immovable property was ultra vires the Central legislature, and was not authorised by Entries 9 and 21 in List II of Schedule VII of the Government of India act 1935, read with section 102 and the Proclamation of Emergency during the second world war. This decision was given on August 9, 1945 in those dark days when our country lay prostrate at the feet of a foreign imperial power. It was a remarkable decision and attracted great public attention. Bhagwati, J. construed Entries 9 and 21 of List II somewhat narrowly and stressed the point in favour of the freedom of the subject, but his decision cannot now be supported. His interpretation of Entry 21 of List II no longer holds the field having regard to the decision of the Privy Council in Meghraj v. Allahrakhia (30) A. I. R. 1947 P. C. 72, see Assistant Collector v. Jamnadas Gokuldas. Patel and others (31) A. I. R. 1969 Bom. 35. His decision with regard to Entry No. 9 of List II is based largely upon his preference to the judgment of Latham, C. J. in Dalziel's case, but we think that the judgment of the majority in that case should be preferred. The decision in Tan Bug Taim's case was disapproved by Mahajan, J, in Dwarkedas Shrinivas of Bombay v. Sholapur Spinning and Weaving Co, Ltd. wad others (26) 1954 S. C. R. 674, 704-706. The effect of the decision was nullified by subsequent legislation. On February 23, 1946 the Imperial Parliament enacted the India (Proclamations of Emergency) Act 1945 by which section 102 of the Government of India Act 1935 was amended retrospectively. as from the commencement of Part III of the Act and the Central Legislative was empowered while a Proclamation of Emergency was in force "to make laws, whether or not for a Province or in particular thereof with respect to any matter not enumerated in any of the Lists in the Seventh Schedule of this Act" and provision was made for reversal of judgments passed by a High Court as to the validity of any law, ordinance, order, bye-law, rule or regulation. On April 1, 1946, the Imperial Parliament passed the India (Central Government and Legislature) Act, 1946 authorising inter alia the Indian Legislature to make laws for the continuance of requisitions of land made under the Defence of India Rules. Accordingly on March 24, 1947 the Central Legislature passed the Requisitioned Land (Continuance of Powers) Act 1947 (Act XVII of 1947) continuing the requisitions so made until the expiry of the Act By Notification No. 311-47-C and G. N. dated 25. 10. Accordingly on March 24, 1947 the Central Legislature passed the Requisitioned Land (Continuance of Powers) Act 1947 (Act XVII of 1947) continuing the requisitions so made until the expiry of the Act By Notification No. 311-47-C and G. N. dated 25. 10. 1947 issued under section 104 of the Government of India Act, 1935 the Governor-General empowered "all Provincial Legislatures to enact laws with respect to the requisitioning of land, being a matter not enumreated in any of the Lists in the Seventh Schedule in the said Act. " Nevertheless in Shyam Krishen v. State of Punjab (32) A. I. R. 1952 Punj 70, the Punjab High Court held that Entry 9 of List II authorized the Provincial Legislature to enact laws with respect to the requisitioning of land. Weston, C. J. said, "in my opinion, requisition is a form of compulsory acquisition and legislation providing for requisitioning property fell within Item 9 of List II of the Government of India Act. " It is also remarkable that in Paresh Chandra Chatterjee v. The State of Assam (33) A. I. R. 1962 S. C. 167, Shah, J. thought that the Assam Land (Requisition and Acquisition) Act 1948 passed by the Assam Legislature on November 14, 1948 was "presumably made under Entry 9, List II of the Seventh Schedule of the Government of India Act 1935 which related to "compulsory acquisition of land". The power to requisition land under Rule 75a of the Defence of India Rules was firmly established as a result of the India (Proclamation of Emergency) Act 1945 and the question then arose whether the persons interested in the requisitioned land were entitled to compensation. In the Province of Bengal v. The Board of Trustees for the Improvement of Calcutta (34) 50 C. W. N. 825 decided on February 20, 1946 Mitter and Akram, JJ. held that the owner of the requisitioned land was entitled to compensation under section 19 of the Defence of India Act 1939, that requisitioning of land was an action of the nature described in section 299 (2) of the Government of India Act 1935, that section 19 (1) (e) (ii) contemplated temporary acquisitions" and that requisition in relation to land transferred-possession, and was an "acquisition". We may add that In Re P. S. Venkatasubbier (34) A. I. R. 1945 Mad. We may add that In Re P. S. Venkatasubbier (34) A. I. R. 1945 Mad. 104, Happell, J. upheld the vires of rule 75a so far as it related to requisitioning of moveables. 12. ARTICLE 31 (2) of the Constitution before the 4th Amendment used the word "acquisition" side by side with the expression "taking possession of." Both Patanjali Sastri, C. J. and Mahajan, J. thought that even under Article 31, the word "acquisition" was broad enough to comprise a temporary taking of the land, see Subodh Gopal Bose's case (36) 1954 S. C. R. 587 at 609-11 and Dwarkadas Shrinivas's case (26) 1954 S. C. R. 674 at 701-6. Patanjali Sastri, C. J. said that the word "acquisition" is not a term of art and it ordinarily means coming into possession of, obtaining, gaining or getting as one's own and to say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his consent, that when the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner, that no formula of vesting is necessary and that the word "acquisition" and its grammatical variations should in the contest of article 31 and the Entries in the Lists be understood in their ordinary sense and the additional words "taking possession of" or "requisitioning" were used in article 31 (2) and in the Entries respectively not in contradistinction with, but in amplification of the term "acquisition". Mahajan, J. said that "constitutional provisions could not be construed merely by taking a dictionary in hand, that the word "acquisition" has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of. "B.K. Mukherjea and Das, JJ. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of. "B.K. Mukherjea and Das, JJ. however expressed a contrary opinion, see Chiranjitlal Choudhuri v. The Union of India and others (27) (1950) 1 S.C.R. 869, 902 and Subodh Gopal Boss's case (36) 1954 S. C. R. 587, 658- Mukherjea, J. said that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be, and Das, J. thought that the word "acquisition" had become, as it were, a word of art having a long accepted legislative meaning implying the transfer of title. With respect we prefer to follow Fatanjali Sastri, C. J, and Mahajan, J. on this point. Where, as in article 31 (2), one finds the word "acquisition" used in association with the expression "taking possession of", there may be some scope for argument that the word acquisition should be given a restricted meaning and should not be construed so as to include the taking of possession, but we find no warrant for giving such a restricted meaning to the word "acquisition" in section 299 (2) where the word "acquisition" is used alone. The State power of acquisition includes the power of requisition and temporary occupation of land. The word "acquisition" in a comprehensive sense includes requisition also, and Shah, J. in Paresh Chandra Chatterjee v. The State of Assam (33) A. I. R. 1962 S. C. 167, 169-70, said that in section 15 (1) (b) of the Tea Act 1953 the word "acquisition" must have been used in that comprehensive sense. Where the State compulsorily acquires title to the land, there is no right left to which article 19 (1) (f) of the Constitution can apply. Article 19 (1) (f) pre-supposes the existence of a right to hold the property. On a compulsory acquisition of title, there is no right left to the property, and an attack on the law based on Article 19 (1) (f) is futile, even, though the law, e. g., the Land Acquisition Act, being an existing law within the meaning of clause 5 of article 31 is protected from an attack based on Article 31 (2), see Somawanti v. State of Punjab (18) 1963 S. C. 151, 160 para. 20, Baba Barkya Thakur v. State of Bombay (37) (1961) 1 S.C.R. 128 . So also where the State compulsorily acquires possession and beneficial enjoyment of the property to the exclusion of the owner for an indefinite period, there is no right left to which article 19 (1) (f) applies. In State of Bombay v. Bhanji Munji (11) (1955) 1 S. C. B. 717 Bose, J. said "these articles deal with substantial and substantive rights and not with illusory phantoms of title. When every form of enjoyment which normally accompanies an interest in this kind of property is taken away, leaving the mere husk of title, Article 19 (1) (f) is not attracted. * * * In the present case, the right to occupy the premises is gone and also the right to transfer, assign, let or sub-let. What is left is but the mere husk of title in the leasehold interest; a forlorn hope that the force of this law will somehow expend itself before the lease runs out. " Thus on a compulsory requisition and occupation of the property for an indefinite period, the owner is left with an illusory phantom of a title, and an attack on the law authorising the requisition based on article 19 (1) (f) is futile, though the law being an existing law within the meaning of clause 5 of article 31 is immune from an attack based on clause 2 of article 31 e. g., (a) The Bombay Land Requisition Act, 1948, see State of Bombay v. Bhanji Munji (11) (1955) 1 S. C. R. 777, Lilabati Bai v. State of Bombay (12) 1957 S. C. R. 721, (b) The West Bengal Land (Requisition and Acquisition Act II of 1948), see Sitabati Debi v. The State of West Bengal and another (38) (Civil Appeal No. 322 of 1961) decided by the Supreme Court on December 1, 1961 unreported affirming the decision of Bose, J., as he then was, reported in 66 C. W. N. 423, Kamala Bala Dassi v. State of West Bengal, (13) A. I. R. 1962 Cal. 269, Sachindra Mohan Nandy v. State of West Bengal (39) A. I. R. 1963 Cal. 373, (c) The West Bengal Requisition and Control (Temporary Provisions) Act, 1947 (Act V of 1947), see Sudhindra Nath Datta v. Sailendra Nath Mitra (1) 87 C. L. J. 140. 269, Sachindra Mohan Nandy v. State of West Bengal (39) A. I. R. 1963 Cal. 373, (c) The West Bengal Requisition and Control (Temporary Provisions) Act, 1947 (Act V of 1947), see Sudhindra Nath Datta v. Sailendra Nath Mitra (1) 87 C. L. J. 140. It will appear therefore that compulsory requisitioning of land is confiscatory in character and in substance is a measure of compulsory acquisition. Judged by this test, West Bengal Act V of 1947 is a law authorizing compulsory acquisition of land and is subject to the constitutional guarantee embodied in section 299 (2) of the Government of India Act, 1935. West Bengal Act V of 1947 can therefore authorize the requisitioning of land for public purposes only. In the background of this constitutional guarantee, section 3 (1) of the Act must be construed to mean that given a public purpose, the opinion of the Government as to the need for requisitioning the premises is final, but the factual existence of the public purpose is justiciable and the opinion of the Government in that behalf is not final. We may add that an Shyam Krishen v. State of Punjab (32) A. I. R. 1952 Punj. 70, the Punjab High Court held that the Punjab Requisitioning of Immoveable Property (Temporary Powers) Act, 1947 was subject to the constitutional guarantee embodied in section 299 (2) and if repugnant to this section, could be declared ultra vires. 13. NOW was there a public purpose supporting the requisition in the instant case? The contention of the respondents is that the purpose of providing residential accommodation for employees of the State Government is a public purpose and that in the instant case there was such a purpose. Now 3 public purpose must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned, see Somawanti v. State of Punjab (18) A. I. R. 1963 S. C. 151, 161 para 24, Hamabai Framjee Petit v. Secretary of State (40) L. R. 42 I. A. 44. In State of Bombay v. R. S. Nanji (41) A. I. R. 1956 S. C. 294, 297, Imam, J. said "we must regard Hamabai's case as a decision to the effect that the general interest of the community was directly and vitally concerned with the efficiency of the government servants because it would be to its benefit to have such servants and therefore providing living accommodation for them was a public purpose." In Paresh Nath Nundi v. State of West Bengal (7) 68 C. W. N. 264, (reversing 65 C. W. N. 794) the Court quashed the order of requisition made at the instance of a lady professor who wanted to circumvent a notice of ejectment served on her husband in respect of the premises, and where another flat equally suitable for her was available. In all the circumstances of the case the court held that the requisition was not related to any public purpose. In Satyanarayan Nathani v. State of West Bengal (6) 61 C. W. N. 420, 431-2, Chakravartti, C. J. doubted whether on the facts of that case there was a public purpose, but he did not decide the point finally. Both the decisions insist on proof that attempts had been made by the Government employee to secure alternative accommodation and such attempts had failed, and also proof of some special reasons showing that it was essential to provide the employee with residential facilities in a particular locality in order that he may be able to perform efficiently the duties of his office, see also Bepin Behari Sadhukhan v. First Land Acquisition Collector, Calcutta (42) 64 C. W. N. 179, Sachindra Nath Mukherjee v. State of West Bengal (43) A. T. R. 195s Cal 510, G. Jaiswal v. first Land Acquisition Collector (44) 62 C. W. N. 158. Each case must depend on its own facts. It appears to us that the object or aim of providing living accommodation for employees of the Government is a public purpose where the provision of such accommodation is necessary in the interest of public service. 14. THE impugned order did not set out on its face any particular public purpose, but the omission to do so is not fatal to it, see State of Bombay v. Bhanji Munji (11) A. I. R. 1955 S. C. 41, 45 (para 11. 14. THE impugned order did not set out on its face any particular public purpose, but the omission to do so is not fatal to it, see State of Bombay v. Bhanji Munji (11) A. I. R. 1955 S. C. 41, 45 (para 11. In our opinion ample public purpose is disclosed in the affidavits filed on behalf of the respondent. The requisitioned premises were allotted to Sri A. S. Nag who is residing there. Sri Nag is the Deputy Secretary in the Labour Department of the Government of West Bengal. He has onerous duties to perform in connection with this important department of the State Government. His duties require his presence in Calcutta, and it is necessary in the interest of public service to provide suitable accommodation for him in Calcutta. All telegrams addressed to the department are delivered outside normal office hours to him at his residence. He has to carry urgent and important files to his residence. The officers of the various directorates under the department have sometimes to call at his residence after office hours and on holidays, particularly in times of labour strikes, lockouts, and similar troubles for discussions with him. Sri Nag does not own any house in Calcutta. He was formerly occupying a flat at No. 28/a, Shyamaprosad Mukherjee Road, Calcutta consisting of 2 living rooms and a pantry. The accommodation in this flat was too small for Sri Nag and his family consisting of 9 members including his wife, children and old parents. In spite of his continued efforts for months he was unable to obtain a suitable accommodation on rent. 15. THE accommodation at this flat was so meagre that Sri Nag had to receive his official visitors in an open varandah and to carry on discussions with them there. We are satisfied that Sri Nag was unable to discharge efficiently at his former residence all those official duties which have to be discharged by him at his residence outside office hours. Sri Nag needed a much larger accommodation and that this need was partly attributable to the exigencies of his official work. There is a real and intimate connection between his official duties and his living accommodation. Sri Nag needed a much larger accommodation and that this need was partly attributable to the exigencies of his official work. There is a real and intimate connection between his official duties and his living accommodation. On coming to know that the ground floor of premises No. 1/6, Golam Mohammad Road was about to be vacated, he requested the Government to requisition the premises and the requisition was accordingly made. The requisitioned flat consists of 7 rooms, two baths and two kitchens. We are satisfied that the provision of this larger accommodation was necessary in the interest of public service. The flat at 28a, Shyamaprosad Mukherjee Road was simultaneously requisitioned to provide accommodation for Sri A. Roy who is a Land Acquisition Collector, Calcutta. Sri Roy had no place of residence in Calcutta and was attending to the duties of his office in Calcutta as s. daily passenger from Burdwan. The requisitioned flat at shyamaprosad Mukherjee Road was allotted to Sri Roy and he has resided there ever since. We agree with D. N. Sinha, J. that the requisitions of both the flats are for a public purpose, and that by simultaneously requisitioning the two flats and then making suitable allotments, the law has not been violated. 16. THE charge of malafide is not proved. There is reason to believe that the tenant Sri D.C. Goswami disclosed the relevant information with regard to the vacancy of the flat to Sri A. S. Nag and thus enabled Sri Nag to move the Government for the requisitioning of the flat. But the requisitioning was not made for the benefit of Sri Goswami. The charge of collusion, conspiracy and bad faith of the Government is not proved. There is no colourable exercise of the power conferred by section 3 (1) of Act V of 1947. In our opinion, D. N. Sinha, J. rightly discharged the Rule. The appeal be and is hereby dismissed. There will be no order as to costs.