PRAHLAD CHANDRA DE v. FATICK CHAND SEAL — 1967 DIGILAW 39 (CAL)

SINHA, C. J. ( 1 ) THIS is an appeal against a judgment and decree passed by Ray, J. dated June ?, 1965. The facts are shortly as follows: the plaintiff respondent Fatick Chand Seal (hereinafter referred to as the plaintiff) is the owner of premises No. 257b, Bepin Behari Ganguly Street, (formerly known as 257b, Bow Bazar Street) in the city of Calcutta. On or about 8th December, 1961 the plaintiff granted a lease of the second floor of the said building to the defendant appellant Prahlad Chandra Decree under a registered lease for a term of twenty years. The leas inter alia contained the following term: "in the event of the demised premises or any part thereof being acquired or requisitioned by the Government or any Local Authority under any act for the time being in force then this demise shall determine from the date when possession of the demised premises shall be taken by the Acquiring for Requisitioning Authority or any earlier date if so required by them and the lessee shall have no claim against the lessor, for disturbance nor shall be entitled to claim any portion of the compensation money in respect of such Acquisition or Requisition and whole of the compensation money shall belong to the lessor save and except that may be awarded to the lessee for costs of removal only. " ( 2 ) ON the 14th of July 1962 the said premises was requisitioned by the State Government of West Bengal under sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as the "said Act" ). " ( 2 ) ON the 14th of July 1962 the said premises was requisitioned by the State Government of West Bengal under sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as the "said Act" ). The relevant part of the requisition order is set out below: "whereas in the opinion of the State Government the premises described in the Schedule below are needed for a public purpose; now, therefore, in exercise of the power conferred by sub-section (1) of Section 3 of West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act V of 1947), the Governor is pleased hereby to requisition the premises described in the Schedule below and under sub-section (4) of the said Section, the Government is further pleased to direct the First Land Acquisition Collector to take steps in connection with such requisitioning of the premises in accordance with the provisions of the said Act and to take possession of the premises so requisitioned. " ( 3 ) ON the 26th of July 1962 vacant possession of the premises was taken over by the State of West Bengal. The plaintiff thereafter claimed compensation from the State of West Bengal. According to the written statement filed on behalf of the State of West Bengal, possession of the said premises was made over to the West Bengal Development Corporation for whose purpose the said requisition was made. On or about the 8th April 1963 the Government of West Bengal in its Land and Land Revenue Department, Requisition Branch, made an order the relevant part whereof is set out below: "in exercise of the powers conferred by sub-section (1) of Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (West Bengal Act, V of 1947), the State Government is pleased to rescind the order No. 59/62 Reqn. Dated 14th July 1962 made by it in respect of the premises described in the schedule below:" ( 4 ) ON the 22nd January 1964 the plaintiff instituted a suit, being suit No. 173 of 1964 against the State of West Bengal and the said Prahlad Chandra Decree. A copy of the plaint is set out at pages 3 to 9 of the paper book. The suit was resisted by both the defendants. A copy of the plaint is set out at pages 3 to 9 of the paper book. The suit was resisted by both the defendants. The matter came up for hearing before Ray, J. in the court below and 15 issues were raised. Before us only two points were agitated, namely issues Nos. 2 (b) and 7. They are as follows: "2 (b ). Is the said Act ultra vires the provisions of Section 299 of the Government of India Act, 1935 and of the Constitution of India as alleged in paragraph 14a of the Written Statement of the defendant No. 2? 7. Is the order of rescission dated 8 April 1963 invalid and wrongful?" ( 5 ) ALTHOUGH issue No. 2 (b) set out above is in a general form, challenging the ultra vires of the whole of the said Act, what was argued before us and in the court below was that Section 3 (1) of the said Act was ultra vires of Section 299 of the Government of India Act, 1935. Mr. Roy appearing on behalf of the appellant admits that the point is covered by a Division Bench Judgment of this court in (1) Chhayarani Mukherjee v. Asstt. Secretary, Land and Land Revenue Department, Requisition Branch, State of West Bengal and others, 68 Calwn 826. He argues, however, that the decision of Bachawat, J. in Chhayarani's case is wrong and therefore, if we accept his argument we should refer it to a Full Bench for a decision of the point. Mr. Roy's argument is briefly as follows: section 299 (2) of the Government of India Act, 1935 is in the following terms: " (2) Neither the Dominion Legislature nor a Provincial Legislature shall have power to make any law authorizing the compulsory acquisition for public purposes of any, land, or any commercial or industrial undertaking, or any interest in, or in any company, owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation, for the property acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, it is to be determined. " ( 6 ) MR. Roy argues that both under the Government of India Act, 1935 as well as the Constitution, compulsory acquisition of land by Government can only be for a public purpose. " ( 6 ) MR. Roy argues that both under the Government of India Act, 1935 as well as the Constitution, compulsory acquisition of land by Government can only be for a public purpose. He further argues that this public purpose must in fact exist. Next he argues that under Section 3 (1) of the said Act, it is not necessary that there should be any factual existence of any public purpose, but it stipulates that it would be sufficient if the State Government should be of the opinion that the property which is to be requisitioned was required for a public purpose. He proceeds on the footing that compulsory requisition amounts to acquisition or is not different from it and therefore, the position is that Section 3 (1) of the said Act does not conform with the provisions of Section 299 (2) of the Government of India Act, 1935, inasmuch as the said Act permits the acquisition of property not because there is in fact a public purpose, but because the State Government thinks that a public purpose exists. Accordingly, Section 3 (1) of the said Act was ultra vires of the Government of India Act, 1935 and void. In support of his main proposition that Section 3 (1) of the said Act does not stipulate for the factual existence of a public purpose but only for the existence of an opinion by the State Government that it exists, he has relied on an observation of Mukherjea, J. in his minority and dissenting judgment in the Supreme Court decision - (2) Province of Bombay v. Kusaldas S. Advani and others, 1950 SCR 621 . In that case, what was challenged was the Province of Bombay Land Requisition Ordinance, 1947 and in particular Section 3 thereof, Section 3 the said Ordinance is in the following terms: "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; provided no land used for the public religious worship or for any purpose which the provincial Government may specify by notification in the Official Gazette, shall be requisitioned under this section. " mukherjea, J. said that the language of the section taken along with the proviso indicated that whereas the act of requisitioning any land was left to the executive discretion of the provincial Government and the latter could requisition land whenever it was necessary and expedient to do so, the objective condition of public purpose must in fact exist. Certain conditions were laid down which were conditions precedent to the exercise of the power. The first condition imposed by the proviso which was in the nature of an exception engrafted upon the entire section and prevented the provincial Government from exercising powers at all if the land was used for public religious worship. In that context, the existence of a public purpose was found to be an objective fact and not as subjective opinion of the Government has been made the essential preliminary to found the jurisdiction of the Government to proceed with any act of requisition. It was also held that public purpose was an independent fact, the existence of which would enable the executive to move in the mater of requisition of property, but it was itself not dependent on the personal opinion of the executive. In dealing with this question Mukherjea, J. made the following observation at page 681; 'it may be pertinent to point out in this connection that a similar provision in Section 3 (1) of the West Bengal Premises Requisition and Control Act has been expressed in a different language and the actual existence of public purpose has not been a condition precedent to the exercise of power by the provincial Government. " mr. Roy strongly relies on this observation and has said that this shows that Section 3 (1) of the said Act did not stipulate for the objective existence of a public purpose, but only the subjective opinion of the Government that a public purpose exists, and this makes the provisions ultra vires of the Government of India Act, 1935. In Chhayarani's case (Supra) it was pointed out that the said Act was an 'existing' law for the purpose of article 31 of the Constitution. In Chhayarani's case (Supra) it was pointed out that the said Act was an 'existing' law for the purpose of article 31 of the Constitution. In (3) Srinibas Khedwal v. State of West Bengal, 57 Calwn 719 a Division Bench of this court held that the said Act was an existing law within the meaning of article 31 (5) of the Constitution and although under Section 3 (10) of the said Act, the factual existence of a public purpose depends entirely on the subjective satisfied of the provincial Government and is not justiciable, the constitutionality of the Act cannot be canvassed for the reason that it was an existing law within the meaning of article 31 (5) of the Constitution. IN (4) Satyanarayan Nathani v. State of West Bengal and another, AIR 1957 Cal. 310 it was held that the said Act was not an existing law within the meaning article 31 (5) but was an Act to which the provisions of article 31 (2) applied. Chakravartti, C. J. , held that even if the condition precedent to requisition order under Section 3 (1) of the said Act was that it should appear to the State Government that any premises in any locality are needed or likely to be needed for any public purpose still the court's jurisdiction to enquire whether an order of requisition is supported by a public purpose remains. The learned Chief Justice referred to the Supreme Court decision of (5) State of West Bengal v. Mrs. Bela Banerjee, AIR 1954 SC 170 where it was observed as follows: "the Attorney-General appearing for the appellant, rightly conceded that inasmuch as article 31 (2) made the existence of a public purpose a necessary condition of acquisition. The existence of such a purpose as a fact must be established objectively, and the provision in Section 8 relating to the conclusiveness of the declaration of Government as to the nature of the purpose of the acquisition must be held unconstitutional. " the learned Chief Justice was of the opinion that no provision contained in an Act to which article 31 (2) applied can avail the Government, even if it provided in the strongest language that the Government will be the sole judge of whether a public purpose warranting the acquisition or requisition exists. " the learned Chief Justice was of the opinion that no provision contained in an Act to which article 31 (2) applied can avail the Government, even if it provided in the strongest language that the Government will be the sole judge of whether a public purpose warranting the acquisition or requisition exists. It will be remembered that in Srinibas Khedwal's case (Supra) it was assumed that in the said Act, the factual existence of a public purpose depended entirely on the subjective satisfaction of the provincial Government. In view of the fact that in that case it was held that the said Act was an "existing law" within the meaning of article 31 (5) and therefore, the constitutionality of it could not be considered by any court, this assumption is not of much importance. Chakravarty, C. J. said as follows: "in the view that I am taking of the effect of Section 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. 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 is left to the opinion of the Government is not existence of the public purpose, but the need for the land. " ( 7 ) AS regards the question as to whether the said Act was an 'existing law' within the meaning of article 31 (5) the learned Chief Justice relied on the Supreme Court decision in (6) The State of Bombay v. Bhanji Munji, (1955) 1 SCR 777 . In that case, the Supreme Court examined the constitutionality of the Bombay Land Requisition Act (Bombay Act XXII) of 1948, by reference to article 31 (2), though that Act was passed in April 1948, more than 18 months before the commencement of the Constitution. The Supreme Court assumed rather than decided the point that the principal Bombay Act XXII of 1948 was not an existing law within the meaning of article 31 (5 ). The Supreme Court assumed rather than decided the point that the principal Bombay Act XXII of 1948 was not an existing law within the meaning of article 31 (5 ). In the case of (7) Smt. Leelavati Bai v. State of Bombay, AIR (1957) 521 the Supreme Court considered the point fully, and held that the principal Bombay Act was an "existing law" and that the Amending Acts were merely extension of or explanatory to, the principal Act, and thus were not invalid although they had not received the assent of the President. Upon this point, therefore, the decision of Chakravarti, C. J. in Satya Narayan Nathani's case (Supra) can no longer be regarded as good law. ( 8 ) WE are not however so much concerned here with the question as to whether the said Act was an "existing law", but with the argument that Section 3 (1) of the said Act stipulated, not for the factual existence of a public purpose objectively but only for the subjective satisfaction of the State Government that such a purpose existed. Before us Mr. Roy has not argued the point that the said Act contravened the provision of article 31, but that if it contravened the provisions of Section 299 (2) of the Government of India Act, 1935, because for his purpose this would be quite sufficient. An Act which was void because of the existing constitutional provisions cannot be revived under the Constitution of 1950. On this point however, I have already mentioned that in Srinibas Khedwal's case (Supra), the proposition was assumed rather than decided and in Satya Nathani's case (Supra) doubted. The point has, however, been specifically decided by the Bench decision of Chhayarani Mukherjee's case (Supra ). Two points have been decided in that case and are as follows: - Firstly, that on a purely textual interpretation, Section 3 (1) of the said Act may mean that the subjective satisfaction of the State Government as to the existence of the public purposes final and not justiciable. On the other hand, in the background of 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 is not final as to the existence of a public purpose, objectively. On the other hand, in the background of 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 is not final as to the existence of a public purpose, objectively. Any law which makes this subjective satisfaction of the Government with regard to the existence of the public purpose final, would indirectly enable the Government to make requisition for private purpose and would be violative of the constitutional guarantee. The second point decided was that the word "acquisition" in Section 299 (2) of the Government of India Act, 1935, induces "requisition" of land for the use and occupation of the Government. Every injurious affection of property short of acquisition is not of the nature described in Section 299 (2 ). To come within the scope of the section, the law must be a confiscatory legislation. It was held that in compulsory requisition and occupation of the property for an indefinite period, the owner is refit with as illusory phantom of a title, and that this was confiscatory legislation and brought such a requisition within the expression "acquisition" as used in Section 299 (2) of the Government of India Act, 1935. With respect I agree with both these findings. As regards the first point, the argument of Mr. Roy accepts the proposition laid down, viz. that any law which makes subjective satisfaction of the Government with regard to the existence of the public purpose final would indirectly enable the Government to make requisition for private purposes and would be violative of the constitutional guarantee. He however, takes advantage of the concession made by Bachawat, J. , that on a purely "textual" interpretation of Section 3 (1) it may be taken to mean that the subjective satisfaction of the State Government as to the existence of the public purpose is final and not justiciable. Mr. Roy takes this to mean that upon a textual interpretation, not only is the mater not justiciable by the court but that it stipulates, not for the objective existence of a public purpose, but merely for the subjective satisfaction of the Government. He argues that the method of testing and admitting textual interpretations in the background of the existing constitutional provisions, is not permissible method in interpretation. He argues that the method of testing and admitting textual interpretations in the background of the existing constitutional provisions, is not permissible method in interpretation. He states that if there was no ambiguity in the textual interpretation the constitutional background should not be introduced and in the present case, Bachawat, J. having conceded that the textual interpretation was to be made in a particular manner, he could not take into consideration the constitutional back ground in coming to the conclusion that the satisfaction of Government was not final and was still justiciable. He argues that since there was no ambiguity, no other fact could be taken into consideration and that any such interpretation would be a cloak for excusing unconstitutional legislation. He has referred to a number of decisions which may be briefly considered here. The first case is a decision f the Federal Court - (8) In re : The Hindu Women's Right to Property Act, 1937, etc. 1941 FCR page 12. In that case, what came to be considered was the use of the word "property" in the 1937 Act, and the Hindu Women's Right to Property Act, 1938. It was argued that the word "property" included agricultural land, but being a central Act neither of those two statutes could deal with the subject or agricultural land which was a provincial subject. It was held however, that where a legislature with a limited and restricted power makes use in an Act of a word of such wide and general import as "property", the presumption must be that it is using it in respect of that kind of property with respect to which it is competent to legislate and to no other. The word "property" must accordingly be construed as a reference to property other than agricultural land. I do not see how this decision helps Mr. Roy. The textual interpretation of the word "property" was wide enough, but the Federal Court gave it a restricted meaning on the ground that there was a general presumption that the legislature does not intend to exceed its jurisdiction. The next case cited is (9) Newspapers Limited v. State Industrial Tribunal, U. P. and others, AIR 1957 532. In that case, the word "workmen" used in the U. P. Industrial Disputes Act, 1947, was being interpreted. The next case cited is (9) Newspapers Limited v. State Industrial Tribunal, U. P. and others, AIR 1957 532. In that case, the word "workmen" used in the U. P. Industrial Disputes Act, 1947, was being interpreted. It was held that in order to get the true import of an expression used in a statute, it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the object it was to subserve. See Lincoln College's case, (1595) 76 ER 764. This decision again does not seem to help Mr. Roy because it supports the view that in finding out the background of a case, the existing provisions of the Constitution, on the anvil of which all existing legislation must be tested, cannot be overlooked, and there is nothing to show that the Court is restricted to the textual interpretation only. The next case cited is (10) Commissioner of Income Tax, Madhya Pradesh etc. v. Sm. Sodra Devi, AIR 1957 SC 832 . In that case, it was held that Section 16 (3) of the Income Tax Act, 1922 talks of an "individual" capable of having a wife or minor child or both. It was held that there was no ambiguity in the expression and it necessarily excluded from its purview a group of persons forming a unit or a corporation created by a statute and was confined only to human beings, and only to males of the human species. The general rule was recited by Bhagwati, J. as follows: "it is clear that unless there is any such ambiguity it would not be open to the court to depart from the normal rule of construction which is that the intention of the legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of the surrounding circumstances and constitutional principle and practice (per Lord Ashbourne in Nainn v. University of St. Andrews, 1909 Act 147. In the latter event, the following observations of Lord Lindley, M. R. in Thomson v. Lord Clanmorris, (1900) 1 Ch. Andrews, 1909 Act 147. In the latter event, the following observations of Lord Lindley, M. R. in Thomson v. Lord Clanmorris, (1900) 1 Ch. 718 at p. 725 would be apposite: ( 9 ) "in construing any statutory enactment, regard must be had not only to the words used, but to the history of an Act and the reasons which led to its being passed. You must look at the mischief which had to be cured as well as at the cure provided. (See also the observations of Goddard, C. J. , in R. v. Paddington and St. Marylebon Rent Tribunal, (1948) 65 TL/rule 200 at p. 203. " ( 10 ) MR. Roy argues that only if the words used present any ambiguity, reference to constitutional provisions is permissible to interpret them. I shall presently consider the question as to whether there is any ambiguity or not. The next case cited is (11) S. A. Venkataraman v. State, AIR 1956 SC 107. In that case, what was being interpreted was Section 6 of the Prevention of Corruption Act, 1947, Imam, J. said as follows: "in considering the provisions of a statute it is essential for a court in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough. It is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature by construing a provisions of the statute as a whole and taken into consideration other matters and the circumstances which led to the enactment of the statute. . . . . . We cannot construe the observations to mean that where the language of a statute was free from ambiguity a duty was cast upon the court to do anything more than to give effect to the words used. " ( 11 ) THE next case cited is (12) London Rubber Company Limited v. Durex Products Incorporated and another, AIR 1963 sc 1882 . In that case, the court was interpreting certain words used in the Trade Marks Act, 1940. It was held that it was the duty of the court to give full effect to the language used by the legislature. In that case, the court was interpreting certain words used in the Trade Marks Act, 1940. It was held that it was the duty of the court to give full effect to the language used by the legislature. It had no power either to give that language a wider or narrower meaning than the literal one, unless the other provisions of the Act compel it to give such other meaning. The next case cited is (13) The State of Rajasthan v. Leela Jain and others, AIR 1965 SC 1296 . In that case, it was held that unless the words of a statute are unmeaning and absurd, it would not be in accord with the sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with notions of property or justice entertained by the court. It was further held that when the words of a statute are reasonably capable of more than one interpretation, the object or purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a court to adopt a more liberal or a more strict view of the provisions, as the case may be as being more consonant with the underlying purpose. ( 12 ) IN my opinion, these cases do not militate against the interpretation put by Bachawat, J. in Chhayarani's case (Supra ). He said that upon a purely textual interpretation, it may mean that the subjective satisfaction of the Government was final and not justiciable. He, however, did not say that the textual interpretation was not ambiguous. It has never been doubted that compulsory acquisition or requisition of property by the State cannot be made except for a public purpose. If this constitutional provision exists, it is difficult to conclude that in Section 3 (1) of the said Act, the legislature clearly and blatantly provided for compulsory acquisition or requisition, under circumstances where a public purpose may not exist. The Court must always start with the presumption of constitutionality of a statute. Where one construction would uphold the constitutional validity of a statute, that construction should be adopted. ( 13 ) LET us now examine the question as to whether there is an ambiguity. The Court must always start with the presumption of constitutionality of a statute. Where one construction would uphold the constitutional validity of a statute, that construction should be adopted. ( 13 ) LET us now examine the question as to whether there is an ambiguity. In my opinion there is an ambiguity in the sense that the meaning is not clear but may give rise to doubts. As stated above, Chakravartti, C. J. , in Nathani's case (Supra) specifically expressed his doubt as to the correctness of certain previous decisions, particularly the decision in Srinibas Khedwal's case (Supra ). In fact before us also, as in Chhayarani's case (Supra) there was an extensive argument on the question as to whether the subjective opinion of the Government was a deciding factor or the objective existence of the public purpose. Several courts at different intervals have interpreted the section in question in different ways, which confirms that there is an ambiguity. That being so, even on the strength of the authorities cited by Mr. Roy, it is permissible to look into constitutional background. The observation of Mukherjea, J. in Advani's case (Supra) is certainly entitled to great respect, but it must not be forgotten that it occurred incidentally and as a passing observation in a minority judgment. The Court there was not interpreting the said Act, and the reference was merely to the words used and not to the point as to whether in interpreting the section in the said Act there could arise any ambiguity. In my opinion, the decision of Bachawat, J. , in Chhayarani's case (Supra) is correct and there is no reason why we should not follow it. This point therefore, fails. I must mention here that Mr. Sen appearing for the State Government has argued that requisition for the purposes of section 299 (2) of the Government of India Act, 1935. He cited the case of (14) Gurudutta Sharma v. State of Bihar, AIR 1961 SCA 1684. In that case, it was held that the deprivation of the land-holder of the right of management and control over a forest without his legal title thereto or beneficial enjoyment thereof being affected, does not amount to acquisition of land within the meaning of section 299 (2) of the Government of India Act, 1935. In that case, it was held that the deprivation of the land-holder of the right of management and control over a forest without his legal title thereto or beneficial enjoyment thereof being affected, does not amount to acquisition of land within the meaning of section 299 (2) of the Government of India Act, 1935. In my opinion, that case depended on its own facts, and the provisions of the impugned statute. Bachawat, J. in Chhayarani's case (Supra) has discussed the provisions of the said Act and has held that requisition of the description contemplated therein amounted to acquisition within the meaning of the word used in Section 299 (2 ). We should not go to the interpretation of other statutes for this purpose, as that would be dangerous. ( 14 ) COMING now to issue No. 7, the position is as follows. The stand taken on behalf of the defendant No. 2 in the court below was that the order of rescission dated the 8th April 1963 meant that the order of requisition dated 17th July 1962 was entirely wiped out. In course of argument this was put in another form, namely that the order was retrospective and the result was as if there was never any order of requisition and the clause upon which the plaintiff relied and which provided that upon the demised premises being acquired or requisitioned by Government, the lease shall be determined, became inapplicable. Both these contentions were overruled and rightly. The learned Judge pointed out that certain authorities which laid down the Page 9 of 10 proposition that when a contract was rescinded the parties are put in the original position, namely as if the contract never existed, did not apply in the present case because compulsory requisition or acquisition was a creature of statute and not of contract between the parties. We agree with the finding of the court below that, immediately upon the requisition by Government the demise came to an end, under the appropriate clause in the lease. After the release order, the status quo ante could not be restored. Once the requisition was made and possession taken a subsequent release or rescission could not wipe out the factum of requisition. The learned Judge was also right in holding that there was no question of retrospective operation. After the release order, the status quo ante could not be restored. Once the requisition was made and possession taken a subsequent release or rescission could not wipe out the factum of requisition. The learned Judge was also right in holding that there was no question of retrospective operation. I now come to the conclusion arrived at by the learned Judge on the results of the release order. The learned Judge has held that rescission of a requisition order must be done under Section 10 of the said Act. The provisions of Section 10 are set out below: "10. (1) Where any premises are to be released from requisition made under this Act, the State Government shall, after such inquiry as it deems necessary to make or to cause to made, specify by order in writing the person to whom delivery of possession of the premises shall be made. (2) The delivery of possession of such premises to the person specified in the order made under sub-sec. (1) shall be a full liability of the State Government for any claim for compensation or other claim in respect of such premises for any period after the date of delivery but shall not prejudice any right in respect of such premises which any other person may be entitled by due process of law to enforce against the person to whom possession of the premises is so delivered. (3) Where person specified in the order made under sub-section (1) cannot be found or is not readily traceable or has no agent or other person empowered to accept delivery on his behalf, the State Government shall publish in the Official Gazette a notice declaring that such premises are released from requisition and shall cause a copy thereof to be on some conspicuous part of such premises. (4) When a notice referred to in sub-section (3) is published in the Official Gazette, the premises specified in such notice shall cease to be subject to requisition on and from the date of such publication and shall be deemed to have been delivered to the person specified in the order under sub-section (1) and the State Government shall not be liable for any compensation or other claim in respect of such premises for any period after the said date. " ( 15 ) IT has been observed that under sub-section (1), the State Government in the order of release should specify writing the person to whom delivery of possession of the premises shall be made. In the order dated 8th April 1963 which has been set out at page 80 of the paper book, the name of no such person has been specified. From that, learned Judge came to the conclusion that the Government order of rescission was bad, as it contravened Section 10 (1) of the said Act. In my opinion the learned Judge was in error in coming to that conclusion. Since the State Government has power to make an order of requisition, it is within its power to cancel or rescind it. Before us, this proposition was not disputed. Section 10 of the said Act lays down the procedure to be followed and aims at protecting the State Government from being liable for damages, on the ground that possession is or might be made over to the wrong person. In a complicated case, a number of parties may claim possession and the State Government may be put in a very difficult position in deciding as to the party to whom possession is to be made over. But, it would be going too far to say that where requisition has been brought to an end, it would be ineffective or a nullity simply because the procedure enabling Government to avoid liability has not been followed. In my opinion, an order of release would not be void simply because the procedure laid down in sec. 10 (1) has not been followed. If the Government has not followed the procedure. It takes the risk of its liability continuing, such omission cannot act detrimentally to the person whose property has been requisitioned and then released. All that happens is that the Government continue to be liable if possession has not been given to the right person. This part of the finding of the learned Judge must be set aside. The learned Judge has, however, held that Government continues to be liable and has rightly left the point of quantum of compensation and the question as to whom possession should be delivered, open. If the Government wishes to avail itself of the provisions of Section 10 (1), it may still do so, or else the legal consequences will follow. The learned Judge has, however, held that Government continues to be liable and has rightly left the point of quantum of compensation and the question as to whom possession should be delivered, open. If the Government wishes to avail itself of the provisions of Section 10 (1), it may still do so, or else the legal consequences will follow. The persons to whom Government is said to have made over possession, namely the West Bengal Development Corporation, is not a party to the suit, and the learned Judge was right in keeping the point of compensation and possession open. In fact, Mr. Roy appearing on behalf of the appellant does not quarrel with the keeping of this point open, but he objects to the fact that, having kept open this point, the learned Judge has held that "the plaintiff is also entitled to delivery of possession against the State of West Bengal. " It is extremely difficult to understand what exactly was meant by this part of the judgment. If the point of delivery of possession is left open, to be canvassed against the State of West Bengal, how can it be decided at the same time that the plaintiff was entitled to delivery of possession against the State of West Bengal? ( 16 ) THE result is that the judgment of the court below is upheld except to two findings, namely, (1) that the order of rescission was bad, that is to say invalid, by reason of the Government not having specified the person to whom delivery of possession must be made. In our opinion, the order of rescission or release dated the 8th April 1963 is a valid order. (2) That the plaintiff is also entitled to delivery of possession against the State of West Bengal under the judgment and decree of the court below. The point as to possession as well as compensation has been kept open and consequently no express direction in that behalf is to be included in the judgment or order. It has been held that the release order is valid and that the lease in favour of the defendant No. 2, has been determined. On these facts the plaintiff can now take appropriate steps or proceedings for compensation or possession against the proper party or parties. To this extent the appeal succeeds but otherwise it is dismissed. It has been held that the release order is valid and that the lease in favour of the defendant No. 2, has been determined. On these facts the plaintiff can now take appropriate steps or proceedings for compensation or possession against the proper party or parties. To this extent the appeal succeeds but otherwise it is dismissed. There will be no order as to costs of this appeal but the order of cost already made is not disturbed. B. C. MITRA, J. : I agree.