State of U. P. v. Sri Thakurji — 1974 DIGILAW 303 (ALL)

JUDGMENT Satish Chandra, J. - Under. Sec. 3 of the U. P. Rural Development (Requisitioning of Land) Act, 1948, land can be requisitioned for a public purpose. Sec. 2(2) of this Act defines public purpose as follows :- " `public purpose' means for and in connection with any of the following subjects, that is to say (i) making, enlarging or deepening of tanks for purposes of irrigation; (ii) composing of village refuse or preparation of any other form of manure; (iii) construction of guls for irrigation; (iv) plant nurseries; (v) any other object which the State Government may, after publication in the Gazette and after considering any objection or suggestion which may be received, by notification in the Gazette, declare essential for the development of agriculture or improvement of the life of community in rural areas." 2. Acting under Clause (v) of Sec. 2(2) the State Government appears to have issued a notification on November 9, 1962, declaring the "laying of village paths and roads" as one such object. This notification was amended by a notification dated February 12, 1963. Under it for the words "laying of village paths and roads" the words "laying of roads and village paths" were substituted. As a result, laying of roads and village paths was declared to be one of the objects essential for the development of agriculture or improvement of the life of community in rural areas within meaning of Clause (v) so as to be a "public purpose" under Sec. 2(2) of the Act. 3. On July 13, 1972, the Tahsildar, Ballia, issued a notice under Sec. 3 of the Rural Development (Requisitioning the land belonging to the respondents for the construction of a Sahayak Bund Road. According to the appellants the construction of this road was necessary to maintain the link between Ballia-Bairia Bund road in the event of any danger on account of erosion or break in it. The respondents challenged this notice under Article 226 of the Constitution. 4. The learned single Judge (Hon. Gulati, J.), while considering the provisions of the Act, observed :- "This Act authorises requisition of land as opposed to acquisition of land. There is a marked difference between the two Acts. Under the Land Acquisition Act the land is acquired permanently and the person whose land is acquired ceased to be its owner. 4. The learned single Judge (Hon. Gulati, J.), while considering the provisions of the Act, observed :- "This Act authorises requisition of land as opposed to acquisition of land. There is a marked difference between the two Acts. Under the Land Acquisition Act the land is acquired permanently and the person whose land is acquired ceased to be its owner. Under the present Act the land is requisitioned for a temporary purpose so that the owner is never divested of the ownership of the Land requisitioned. After the purpose for which the land is requisitioned is served, the land is returned to its owner. This is clear from Sec. 10 of this Act which provides for the release of the land from requisition to its rightful owner. It is thus clear that the purpose for which the land can be requisitioned must be a temporary purpose and must be of the nature specified in Clauses (i) to (iv) of Sec. 2(2) of the Act. Under Clause (v), therefore, the Government can specify any purpose of a similar nature. It cannot specify a purpose for which the land will have to be acquired permanently. Such a thing is permissible only under the Land Acquisition Act". The learned Judge then held- "Now a construction of a road cannot be said to be a temporary purpose. Any land utilised in the construction of a road remains no longer available to its owner after release. Therefore, the construction of a road cannot be one of the public purposes which the Government can specify under Clause (v) of Sec. 2(2) of the Act. Such a notification would be beyond the ambit of the Act and, as such, would be ultra vires. The notification relied upon by the learned Standing Counsel is of that nature and it has to be held to be unauthorised being ultra vires of the Act." On this view the writ petition was allowed and the impugned notice was quashed. Aggrieved, the State has come up in appeal. 5. The distinction between acquisition and requisition is by now well settled. In Chiranjit Lal Chowdhuri v. The Union of India, 1950 S.C.R. 869. Aggrieved, the State has come up in appeal. 5. The distinction between acquisition and requisition is by now well settled. In Chiranjit Lal Chowdhuri v. The Union of India, 1950 S.C.R. 869. Mukherjea, J. held that acquisition means acquiring of the entire title of the expropriated owner, whatever, the nature and extent of that title might be, and that the entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer, leaving nothing in the former. 6. Das, J. in State of West Bengal v. Subodh Gopal Bose, 1954 S.C.R. 587, while dealing with the concept of acquisition, observed- "It connotes the idea of transfer of title, voluntary or involuntary. When the acquisition by the State is effected by agreement after negotiation there is a regular conveyance transferring title from the vendor to the State. Even when the acquisition by the State is effected by the coercive process of exercising its sovereign power the idea of purchase is nevertheless present for there is a vesting of the property in the State by operation of law. "Acquisition of private property the State under the English law, therefore, connotes the concept of a purchase, voluntary or involuntary, and involves a transfer of the entire title from the owner to the State or a third party for whom the State acquires property." His Lordship went on to hold that while in acquisition ownership or title of the owner is transferred to the State or Corporation owned or controlled by the State, requisition takes place when the right of possession is transferred similarly without transferring title. 7. In Mst. Bhagwati Devi v. Sardar Balwant Singh, 1955 A.L.J. 1 (F.B.) a Full Bench of this Court held- "When a property is requisitioned by the Government all that the person in possession is deprived of is the actual physical possession thereof and not the legal right which had entitled him to remain in possession so that when the requisition order is withdrawn, it is only necessary to restore possession to the person from whom it was taken, but in the case of acquisition a right is acquired by the State." 8. Thus the essential distinction between acquisition and requisition lies in the nature of the rights which are sought to be compulsorily transferred from the erstwhile owner. Thus the essential distinction between acquisition and requisition lies in the nature of the rights which are sought to be compulsorily transferred from the erstwhile owner. If the right, title and interest of the erstwhile owner is taken, the taking is acquisition. But if the right, title and interest of the owner is not touched, but only the possession or enjoyment of the property is taken by the State, the process is termed requisition. 9. When a property is acquired, the title of the erstwhile owner is transferred to the State, with the result that the erstwhile owner is left with no interest in the property. It is in this sense that the process of acquisition may be called permanent, because after acquisition the erstwhile owner has no concern left with the property. The position is similar to a voluntary sale, as a result whereof the seller retains no interest in the property sold. The concept of acquisition does not confine the exercise of the power to acquire only to those cases where the purpose for which the property is sought to be acquired is permanent. Even if a public purpose may not in its nature be permanent, yet the Government, if it thinks that the purpose is such that it is likely to last for an indefinite period, may acquire the property. Such acquisition will not be invalid merely because the purpose or the object to achieve which the property is taken, cannot be characterised as permanent. 10. Similarly, the concept of requisitioning property is not dependent upon the purpose or object to achieve which the property is requisitioned, being temporary. It is not necessary that the object for which a property is required to be taken possession of must be for a definite or a certain period. In the Province of Bengal v. Board of Trustees, A.I.R. 1946 Cal. 416, it was observed that requisitioning in relation to land is "acquisition" of an interest in land for a time or for an uncertain period, as the case may be. 11. Since in the case of requisition the title and interest of the owner remains unaffected, he continues to be the owner of the property, and as such he retains his interest in it. 11. Since in the case of requisition the title and interest of the owner remains unaffected, he continues to be the owner of the property, and as such he retains his interest in it. After the requisitioning authority considers that the purpose or object of requisition has been achieved, it has to transfer possession of the requisitioned property to the owner. Since the property is intended ultimately to be returned to the owner, it is, in common parlance, understood that the requisition is not a permanent transfer of possession of the property; but that is something different from saying that the purpose or object for which property is requisitioned must be temporary in the sense that it must be for a certain or specified period of time only. 12. The only restriction upon the nature of the purpose of requisition is that it should be a public purpose must be temporary is an inaccurate and incomplete statement of the legal position. The purpose may be such that it may be expected to last for an uncertain period of time. The requisitioning authority may not be in a position to foretell how long the purpose will last. In such cases the requisition of property is not prohibited. 13. The U. P. Rural Development (Requisitioning Land) Act, 1948, authorises the requisitioning of land for the public purposes mentioned in Sec. 2 (2) thereof. The mentioned public purposes, inter alia, are the making of tanks for purposes of irrigation and construction of guls for irrigation. It cannot be said that such purposes are necessarily temporary in the sense that they should be such as will last only for a specified period of time. They may, in particular cases, be such that it may not be possible to predicate the duration for which they are likely to be in existence. Making or deepening of tanks for purposes of irrigation could well last for years and years, depending on the situation of a tank and of the surrounding areas. Similarly, the construction of guls for irrigation is a purpose which in its nature can continue for an indefinite period of time. It cannot hence be held that "public purpose" as defined in this Act is confined to definitely short-lived purposes. 14. Similarly, the construction of guls for irrigation is a purpose which in its nature can continue for an indefinite period of time. It cannot hence be held that "public purpose" as defined in this Act is confined to definitely short-lived purposes. 14. If the requisitioning authority considers that it is necessary to do so for one of the public purposes mentioned in Sec. 2(2), it may requisition the land. Such requisition means that the requisitioning authority only desires to deprive the owner of the right of possession and enjoyment of the property for the time being, the title being unaffected. 15. The view that the construction of a road cannot be said to be a temporary purpose because any land utilised in the construction of a road remains no longer available to its owner after release has not appealed to us. In our opinion confusion arises by the use of the terms temporary and permanent in relation to requisition. The construction of a road like a Sahayak Bund Road, is not in its inherent nature a work which will last for ever. A lot will depend upon the nature of the construction of the road. It is not, in our opinion, quite right to say that the land utilised in the construction of a road remains no longer available to its owner after release. After release the land comes back into possession and enjoyment of the owner. He can, without much difficulty, utilise it for agricultural purposes, if he so likes, by suitably removing the road materials. This may entail expense on the footing that the construction of the road has damaged the land. Under Sec. 9 of the U. P. Rural Development (Requisitioning of Land) Act, 1948, the owner is entitled to be paid compensation in respect of requisitioning of land as also for any damage done during the period of requisition to such land (other than that which may have been sustained by natural causes). If the land has been damaged by constructing a road over it, the owner would be entitled to compensation, so that it may be put back in its original state after release from requisition. 16. If the land has been damaged by constructing a road over it, the owner would be entitled to compensation, so that it may be put back in its original state after release from requisition. 16. Laying of roads, therefore, is a purpose which is akin to the other purposes mentioned in Sec. 2(2), like making or deepening of tanks or construction of guls for irrigation, and is, in our opinion, within the purview of the term "public purpose" as defined in Sec. 2(2). Such a purpose could validly be declared by the State Government under Clause (v) of that provision. The notification issued by the State Government on February 12, 1963, was intra vires the Act. The impugned notice issued under Sec. 3 of the Act, being for the purpose of construction of a road, was legally valid. 17. In the result, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside, and the writ petition is dismissed with costs.