ition No 11222 of 1983
Under article 32 of the Constitution of India Soli J Sorabjee Gopal Subramanyam L P Agarwala R P Singh N P Agrwala and V Shekher for the Petitioner
F section Nariman Rathin Das for Respondent Nos 1  2
section N Kacker D K Sinha and J R Das for Respondent No 3
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is an application under article 32 of the Constitution of India
Notice was issued and the respondents have filed counters and have made submissions on the application
The petitioner is the lessee of the premises No 71 A D Lindsay street Calcutta which is situated in an important commercial locality of Calcutta
The ground floor and mezzanine floor of premises No 71 D Lindsay Street Calcutta were requisitioned by Government of West Bengal by order of requisition No 2158 Reqn
dated 25th February 1958 which was substituted by requisition order No 12360 Reqn
dated 10th November 1960 issued under the West Bengal Premises Requisition and Control Temporary Provision Act 1947 hereinafter called the said Act for establishing main Sales showroom of respondent No 4 herein which is the West Bengal Handicraft and development Corporation Limited a West Bengal Government undertaking
The area under requisition is 2521 sq
ft on ground floor and 1677 sq
on mezzanine floor aggregating to 4198 sq
The rent compensation payable under the said Act was fixed by the Land Acquisition Collector Calcutta on or about 31st March 1959 at Rs 1 450 per month inclusive of taxes and repairs with effect from 10th June 1958 which was ultimately modified to Rs 2500 per month by the High Court of Calcutta
It is alleged on behalf 689 of the petitioner that in fixing the monthly compensation for acquisition by Land Acquisition Collector the High Court in appeal took into consideration the rate prevailing in the year 1958 being the year in which the requisition took place
A showroom of respondent No 4 has been set up there
The contention of the petitioner is that from the very beginning the State Government had the intention of keeping the said requisitioned premises permanently
The petitioner contends that the State Government had ample power to acquire the said property under the Land Acquisition Act at the time of issue of order of requisition
In spite of power to acquire the premises in question the State Government resorted to requisition the same with the intention of permanently acquiring property in an indirect manner thereby the State Government has acted in improper exercise of powers and authority and has not exercised the power bonafide alleges the petitioner
The petitioner further alleges that the object is clearly to avoid the obligation to pay reasonable compensation for acquisition and instead thereof continue occupying the area by paying nominal monthly rent as compensation
Therefore according to the petitioner the order of requisition has been passed for extraneous purpose and is arbitrary and malafide
The petitioner also alleges that according to the present letting value prevailing in the market the value would be over Rs 43668 approximately per month
We are however in this application not concerned with that controversy
The petitioner has submitted that requisition can be for temporary period and for a temporary purpose and the State Government under the garb of requisition has really acquired the property and has avoided the obligation to pay compensation for acquiring the property which will be over Rs 29 lakhs
According to the petitioner the West Bengal Act of 1947 which was intended to remain in force for a short temporary period does not contain any provision for revision of rent
The said Act came into force on or about 1st January 1948
The said Act contains no provision for acquisition of any property but deals solely with requisition of property for making temporary provision
The said Act by various Acts has been renewed from time to time the last of such renewal as per averments has been extended upto 31st March 1985
It is further the case of the petitioner that the said 690 Act cannot be converted into a permanent Act and there cannot be a permanent requisition
According to the petitioner by this process the property in question has been kept under requisition for 25 years
This it was submitted is a fraud upon the power
According to the petitioner the State Government had the option of acquisitioning the property
The State Government had also full knowledge that the possession of the said area was required for a permanent purpose or at least for an indefinite period ie for setting up a show room and in spite of the same did not choose to acquire the property but arbitrarily issued the order of requisition under the said Act
Petitioner states a that he requires the premises in question to carry on his own business and the said right is being interfered with and therefore infringes upon petitioner s fundamental right
The petitioner contends that it violates both article 14 and article 191g of the Constitution
There are various allegations about damages being done to the premises in question
We are not concerned in this application with the said allegations
The petitioner prays for an order of derequisition of the premises
On behalf of the respondents the main contention is that the said Act has been renewed from time to time and there is no limitation to the power of requisition except that the same must be for public purpose
According to the respondents the purpose in this case is indubitably a public purpose and that public purpose remains
The respondents contend that there is no limitation on the exercise of that power
On behalf of the applicant reliance was placed on the decision of this Court in H D Vora vs State of Maharashtra and Ors
Civil Appeal No 1212 of 1984 judgment delivered by my learned brother Bhagwati to which I was a party
There the question as was posed by Bhagwati J was whether an order of requisition of premises can be continued for an indefinite period of time or it must necessarily be of temporary duration
The case discussed the other contention and repelled the attack on the order of requisition on the ground that the order of requisition did not set out the public purpose for which it was made
It was noted by us in the 691 decision of H D Vora that the High Court had held that no material was placed before it to show what was the public purpose for which the order of requisition was made and in fact there was no denial on the part of the state government or the appellant of the averment made on behalf of the third respondent that the appellant in that case was neither a government servant nor a homeless person for whom the order of requisition was purported to have been made
We found that the view taken by the High Court was well founded and it was not possible to hold on the material before us that the order of requisition was made for public purpose
On behalf of the appellant however it was contended that the order of requisition in that case was challenged after a lapse of over 30 years and as such that challenge was liable to be dismissed but this Court in Vora s case relied on another ground namely that an order of requisition was by its very nature temporary in character and could not endure for an indefinite period of time in the facts of that case and the order of requisition in that case therefore ceased to be valid and effective after the expiration of a reasonable period of time and that it could not under any circumstance continue for a period o over 30 years
Brother Bhagwati noted the difference recognised by law between requisition and acquisition and it was further stressed that where acquisition under Land Acquisition Act 1894 was possible the Government under guise of requisition could not continue to use the property under requisition for an indefinite period of time thereby in substance
acquiring the property because that would be misuse by the Government of its powers
It was observed in that case that if the Government wanted to take over the property for an indefinite period of time the government should acquire the property but it could nor use the power of requisition for achieving that object
In those circumstances it was observed that the power of requisition was exercisable by the government only for a public purpose which was of transitory character if the public purpose for which the premises were required was a perennial one or of permanent character from the very inception no order could be passed requisitioning the premises and in such a case the order of requisition if passed would be fraud upon the statute for the government would be requisitioning the property when really speaking it wanted the property for acquisition the object of taking the property being not transitory but permanent and in such circumstances it was held that an order of requisition for a period of such a long time as 30 years as it had happened in that case made the order of requisition 692 bad
Relying mainly on the aforesaid basis and the facts alleged in this case on behalf of the petitioner it was urged before us that the order of requisition was bad and arbitrary
On behalf of the respondents however attention was drawn to a decision of this Court in the case of Collector of Akola and Ors
vs Ramachandra  Ors a decision of a Bench of three learned judges There the land owned by the respondents was requisitioned under the Bombay Land Requisition Act for a public purpose viz for establishing a new village site to resettle victims of flood
The respondents filed a writ petition in the High Court challenging the validity one extended until then upto 1963 the power to requisition thereunder would be with the government only during the time that it subsisted so an order passed for a permanent purpose could not be in the contemplation of the Act
The High Court accepted the objection and quashed the order
It was held by this Court in appeal that the power of requisition under the Act could be exercised whether the public purpose was temporary or not and the exercise of that power for the purpose of rehabilitation of flood sufferers was neither in abuse of the power nor unjustified under the Act
The words for any public purpose in Section 21 were wide enough to include any purpose of whatever nature and did not contain any restriction regarding the nature of that purpose
It placed no limitation on the competent authority as to what kind of public purpose should be for the valid exercise of its power nor did it confine the exercise of that power to a purpose which was of temporary nature
The Court observed that there was no antithesis between the power to requisition and the power of compulsory acquisition under Land Acquisition Act
Neither of the two Acts contained any provisions under which it could be said that if one was acted upon the other could not be
In that case the facts were that the government made an order of requisition under temporary Act for rehabilitating the flood victims and also initiated proceedings under the Land Acquisition Act 1 of 1894 in respect of those very lands and issued a notification under Section 4 thereof
It was contended that the action of the government was bad
The only question which was argued in that case was whether an order of requisition could be made for a permanent purpose
693 The order of requisition in that case was challenged on the ground that the purpose for which the order of requisition was made namely rehabilitation of flood affected victims was a permanent purpose and the order of requisition was therefore bad from its inception since an order of requisition could be made only for a temporary purpose
The argument of the petitioner who challenged the order of requisition was inter alia that the competent authority had no power to invoke the Land Requisition Act inasmuch as the purpose for which it was exercised was of a permanent character
This argument appealed to the High Court and the High Court held that the order of requisition was unjustified under the Bombay Land Requisition Act
It was only this argument which was considered by this Court and this is how this Court formulated in that case the question for its decision The only question arising in this appeal thus is whether the Act authorises an order of requisitioning even if the purpose for which it is made is not a temporary purpose  This Court held that the only restriction imposed by the statute on the power of requisition conferred on the State Government was that this power could be exercised  Only for a purpose which is a public purpose and on the face of it the sub section does not contain any express limitation to the power to requisition the only limitation being that an order thereunder can be passed for a public purpose only and there is no implied limitation that the requisitioning authority has no power thereunder to pass an order where the purpose is not temporary
This Court said that the premises requisitioned may be used for a temporary purpose or for a purpose which is not temporary in nature and added that the power of requisition is not restricted to a temporary purpose only
No question was raised before this Court in that case as to whether an order of requisition can continue for an indefinite duration
The argument before this Court in HD Vora s case was not that the order of requisition was initially bad when made on the ground that it was for a purpose which was a permanent purpose
It fact no one contended that the purpose of housing homeless person was not a temporary purpose but a permanent purpose and therefore the order of requisition was bad
The principal argument advanced was that though the order of requisition was good when made it ceased to be valid and effective because it could not legitimately be continued for an indefinite length of time
The order of requisition in that case had been allowed to continue for a period of almost 30 years and that is why this Court said that the order of requisition had ceased to be 694 valid and effective and the premises must therefore be derequisitioned
It is no doubt true that some observations have been made in the judgment in that case with regard to the permanent or temporary character of the purpose for which an order of requisition could be made and to that extent what is said in that judgment may have to be slightly modified but the principal decision in that case was that an order of requisition is by its very nature temporary in character and cannot be allowed to continue for an indefinite length of time because then it would tantamount to an order of acquisition and would amount to a fraud on the exercise of the power of requisition especially where there is no impediment in making the acquisition and no effort was made to acquire must be regarded as a correct enunciation of the law which does not in any way conflict with what was laid down in the case of Collector of Akola vs Ramachandra supra
The latter decision merely laid down that an order of requisition can be made for a permanent purpose while the for mer dealt with a totally different question namely whether whatever be the character of the purpose for which an order of requisition was made the question was could the order of requisition be continued for an indefinite length of time and it was held that the order of requisition would cease to be valid and effective after the expiration of a reasonable period of time even if it was valid when made and what in the circumstances of a given case would be a reasonable period of time would depend on the facts and circumstances of the case
There is therefore no contradiction between the decision in Collector of Akola vs Ramachandra and the latter decision in HD Vora s case
It may not be inappropriate to note that there are significant differences between requisition  and acquisition 
These have different legal consequences and these affect the owners concerned in different manners
But the State has the power both of requisition as well as acquisition subject to one condition ie the property acquired or requisitioned must be for public purpose
In the Words and Phrases Judicially Defined by Roland Burrows KC Vol
4 at p 562 it was observed that the word requisition  was not a term of art and does not cannot the same state of things in every particular case
In the Fourth Edition of Stroud s Judicial Dictionary at page 2355 it has been mentioned that requisition  is as follows 695 Requisitioning  is not a term of art and has different meanings
Its usual meaning is nothing more than hiring without taking the property out of the owner although the owner has no alternative whether he will accept the proposition of hiring or not
It may however involve the taking over of the actual domination of a chattel The Steaua Romana 1944 P43
Requisitioned house requisitioned land Stat
Def Requisitioned Houses and Housing Amendment Act 1955 c24 section 18 1
 In the case of Mangilal Karwa vs State of Madhya Pradesh it was observed as follows If the term requisition  has acquired any technical meaning during the two World Wars it has been used in for the sense of taking possession of property for the purpose of the State or for such purposes as may be specified in the statute authorizing a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired
In requisition  the property dealt with is not acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes
Even for this limited purpose however the owner becomes entitled to compensation because requisition  of the property amounts at least to a temporary deprivation of the property Thus normally the expression requisition  is taking possession of the property for a limited period in contradistinction to acquisition 
This popular meaning has to be kept in mind in judging whether in a particular case there has been in fact any abuse of the power
Orders of requisition and acquisition have different consequences
These have been noted by this Court in the observations of Mukherjea 696 J in the decision in the case in Chiranjit Lal Chowdhury vs The Union of India and Others and the distinction between requisition  and acquisition  is also evident from Entry 42 in List III of the Seventh Schedule
Original Article 31 clause 2 of the Constitution recognised the distinction between compulsory acquisition  and requisition  of the property
The two concepts are different in one title passes to the acquiring authority in the other title remains with the owner the possession goes to the requiring authority
One is the taking over of the title and the other is the taking over of the possession
It was further contended on behalf of the respondents that part of the premises ie one room as in the instant case before us cannot be acquired
Therefore the ratio of the decision in the case of H D Vora would not be applicable because there was no power to acquire the premises in question
Secondly it was urged that the petitioner in the instant case was not the owner of the property at all and the question of acquisition of the requisitioned premises does not arise at all
It was thirdly contended that it was not possible in the facts and circumstances of the case to get any other alternative accommodation for the showroom of the State Handicraft and Development Corporation which indisputably is a public purpose
It was emphasised that the West Bengal Premises Requisition and Control Temporary Provision Act 1947 does not contain any power to acquire the premises in question
The main thrust of the argument was that section 49 1 of the Land Acquisition Act 1894 provides The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house manufactory or other building if the owner desire that the whole of such house manufactory or building shall be so acquired In other words it was urged that this provision almost prevents the acquisition of a part of a house or building
It may be pointed out that section 49 1 of the Act has been amended so far as West Bengal is concerned by the West Bengal of 1955 with effect from 20101955 and the amended section 49 1 so far as Calcutta is concerned runs thus Section 49 1 The provisions of this Act shall not be put in force for the purpose of acquiring the part only of any house manufactory or other building if the acquisition of the part will render the full and unimpaired use of the remaining portion of the house manufactory or building impracticable
Provided that if any question shall arise as to whether the part proposed to be acquired will render the full and unimpaired use of the remaining portion of the house manufactory or building impracticable the Collector shall refer the determination of such question to the court and shall not take possession of such part until after the question has been determined
In deciding on such a reference the Court shall have regard only to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the remaining portion of the house manufactory or building
 The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents
In view of the decision in the case of H D Vora in the light of the decision of this court rendered by Bench of three Judges in Collector Akola and Ors
vs Ramachandra and Ors
supra and bearing in mind the distinction between requisition  and acquisition  as also the provisions of West Bengal amended section 49 1 quoted above the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfil 698 ment of the conditions of section 49 1 of the Land Acquisition Act as amended by the West Bengal Act to the extent applicable if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith
In other words if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better
Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law
It is true that the purpose indisputably in the instant case is a public purpose
It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature
But that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially nor would the continuance of the requisition become mala fide or colourable by mere lapse of time
In order to draw such an inference some more material ought to have been placed before the court
In the circumstances after having heard counsel on either side fully we feel that the following would be an appropriate order to be made in the instant case 1
The impugned requisition order is upheld but the continu 699 ance of the requisition of the premises in question is permitted subject to the conditions mentioned hereinafter
The Government is directed to take steps to acquire premises in question by complying with the conditions mentioned and by following the procedure prescribed in section 49 1 of the Land Acquisition Act 1894 as substituted for the State of West Bengal by the West Bengal Act 32 of 1955 and if possible issue an appropriate order acquiring the same if Government wants the continued use of the premises
Such steps should be completed within a period of three years from today
If however there are insurmountable difficulties in acquiring the premises under section 49 1 the Government will be at liberty to apply to this court for appropriate directions
We also hope that the Government would take steps to acquire any alternative property or premises under Land Acquisition Act 1894 in view of the fact that the purpose of the Government is more or less permanent and such steps should also be taken not beyond a period of three years as aforesaid
If the aforesaid conditions or directions are not complied with the petitioner will also be at liberty to apply to this court for appropriate directions in accordance with law
In the meantime the parties are at liberty to make any appropriate application for the enhancement of rent or compensation in accordance with law if they are so entitled to and this will also not prejudice the parties from proceeding with any suit for damages etc
that may be pending
The parties will pay and bear their own costs
The application is disposed of accordingly
CIVIL ORIGINAL JURISDICTION Review Petition No 641 of 1984
Order in Writ Petition No 11222 of 1983
dated 15th April 1985 Since it has been brought to our notice which should have been done when the matter was heard that the West Bengal Act 32 of 1955 is not applicable to the facts of the case we direct that any reference to that Act wherever it occurs shall be deleted and in particular in para 2 of the order portion of our Judgment we delete the words as substituted for the State of West Bengal by the West Bengal Act of 1955
The rest of the order stands
The Review Petition is disposed of accordingly
SR Appeal dismissed


Summary:
The petitioner is the lessee of the premises No 71A D Lindsay Street Calcutta which is situated in an important commercial locality of Calcutta
The ground floor and mezzanine floor of the said premises were requisitioned by Government for establishing main Sales Show room of respondent No 4 namely west Bengal Handicrafts and Development Corporation Ltd by an order of requisition No 2158 Regn
dated 2521958 under the West Bengal Premises Requisition and Control Temporary Provision Act 1947
Though this Act itself is a temporary Act this has been renewed from time to time the last one renewing it upto 31st March 1985
Aggrieved by the piece meal extension of the 1947 Act and the requisitioning of his premises since 1985 the petitioner challenged the same by a petition under Article 32 of the Constitution and contended that a the West Bengal premises Requisition Control Temporary Provision Act 1947 cannot be converted into permanent Act and therefore requisition of his premises cannot be a permanent requisition  b Requisitioning the property in this manner for more than 25 years amounts to indirect acquisition of the property and is a fraud upon the power and c It violates both Articles 14 and 19 1 g of the Constitution since the petitioner who himself requires the premises for his own business is prevented from using
Disposing of the petition the Court  HELD 1
There are significant differences between requisition  and acquisition 
Normally the expression requisition is taking possession of the property for a limited period in contradistinction to acquisition
This popular meaning has to be kept in mind in judging whether in a particular case there has been in fact any abuse of the power
The distinction between requisition  and acquisition  is also evident from Entry 42 in List III of the Seventh Schedule Original Article 31 clause 2 of the Constitution recognised the distinction between compulsory acquisition and requisition of the property
The two 687 concepts are different in one title passes to the acquiring authority in the other title remains with the owner the possession goes to the requiring authority
One is the taking over of the title and the other is the taking over of the possession
Thus the orders of requisition and acquisition have different consequences and affect the owners concerned in different manners
But the State has the power both of requisition as well as acquisition subject to one condition that is the property acquired or requisitioned must be for public purpose Mangilal Karwa vs State of Madhya Pradesh AIR 1955 Nagpur p 153 at p 157 approved Chiranjit Lal Chowdhury vs The Union of India and others 1950 I SCR p 869 referred to
695H G 696A B 2
Under Section 49 1 of the Land Acquisition Act 1942 as amended by the West Bengal Act 32 of 1955 even a part of the building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building
697F 31 It will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 1 of the Land Acquisition Act as amended by the West Bengal Act to the extent applicable if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose than that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith
In other words if there is power to acquire as also the power of requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better
697H 698A C 32 Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law
698D E 33 In the instant case it is indisputably true that a The purpose of requisition is a public purpose and b That the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature
But that by itself without anything more would not enable the court to draw 688 the inference that the exercise of the power was bad initially nor would be continuance of the requisition became malafide or colourable by mere lapse of time
In order to draw such an inference some more material ought to have been placed before the Court
In the circumstances the continuance of the requisitioning of the premises in question must be permitted subject to fulfilment of the conditions mentioned
698H F