1. By this petition an order of requisition made by the Collector of Ahmedabad on May 15, 1953, is being challenged by the petitioner. The property requisitioned is a stall in the vegetable market at Dholka, and the ground of the challenge is that the order does not comply with the mandatory provisions of Section 5 of the Bombay Land Requisition Act.
2. Now, this property, as the order itself states, has been requisitioned under Sub-section (1) of s. 5 of the Act, and turning to that section it provides :
'If in the opinion of the State Government it is necessary or expedient so to do, the State Government may by order in writing requisition any land for the purpose of the State or any other public purpose:'
The power of the State to requisition which is conferred by this sub-section is undoubtedly very Wide. It may requisition any land, and 'land' is denned as including buildings, and it is clear that the power to requisition is not confined to requisitioning residential buildings. So long as the State Government wishes to requisition land for the purposes of the State or any public purpose, the State Government has the power to act under Section 5(1).
There is a proviso to that Sub-section and that proviso is that no building or part thereof wherein the owner or landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section. Therefore, having conferred the power of requisitioning under Section 5(1) the Legislature has placed a certain limitation upon that power and that limitation is that no building or part thereof can be requisitioned if the landlord or the tenant has actually resided in that building for a continuous period of six months. It will be noticed that the proviso applies only to a building or a part thereof, and the reason for making the proviso apply only to a building or a part thereof is obvious because no question of actual residence can arise on an open plot of land. Then we come to Sub-section (2):
'Where any building or part thereof is to be requisitioned under Sub-section (1), the State Government shall make such inquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided.'
Giving to this Sub-section a natural grammatical interpretation, it is clear that the Legislature has given two directions to the State Government which are obligatory in their character, and the two directions are that the State Government must hold an inquiry where a building or a part of a building is to be requisitioned and also that it shall make a declaration that the landlord or the tenant has not actually resided in that building, and Sub-section (2) further provides that the effect of making such a declaration is that the declaration becomes conclusive evidence that the owner, landlord or tenant has not resided in the building or part thereof.
In this particular case, looking at the order, there is no declaration as required by Sub-section (2). The petitioner contended that no inquiry had been held by the State Government before the order was made. On the affidavit we are in-formed that an inquiry was held, and for the purpose of this petition we will assume that the inquiry contemplated by Sub-section (2) was in fact held, but it is clear that the inquiry was not followed by the making of a declaration as required by Sub-section (2).
3. Now, what the Advocate General contends in the first place is that Sub-section (2) only applies where Government wishes to requisition residential buildings or part of residential buildings. The Advocate General says that if the buildings are non-residential, there is no necessity and no obligation upon the Government to make an inquiry.
In our opinion, the language used by the Legislature in Sub-section (2) is clear. An inquiry is made obligatory in every case where a building or part thereof is to be requisitioned. No inquiry is necessary where open land is to be requisitioned. Therefore, the Legislature in Sub-section (2) has made a distinction between land apart from building or part of a building and it is only in the case of a building or part thereof that an inquiry has been made obligatory, but the Legislature has not made the further distinction between a residential and a non-residential building. Whatever the nature of the building, if the Government wishes to requisition a building, it must hold the inquiry mentioned in Sub-section (2) of Section 5.
The further contention of the Advocate General is that even if an inquiry is obligatory, a declaration is not obligatory, and the Advocate General says that the scheme of Sub-section (2) is that the Government is bound to make a declaration only if the Government desires that the declaration should become conclusive evidence with regard to the question of residence. In other words, according to the Advocate General the making of a declaration is left to the option of . the Government; the Government may exercise the option if it wants to take the benefit of the conclusiveness of the declaration; if, on the other hand, the Government does not want to avail itself of that benefit, then it may not make a declaration.
In our opinion that contention also is wholly untenable. If that had been the intention of the Legislature, then the Legislature would not have made a declaration obligatory. It would not have used the expression 'shall make', but would have left it to the option or discretion of the State Government by using the expression 'may' in place of the expression 'shall'. It is clear that reading Sub-section (2) as a whole the position is that both an inquiry and the making of a declaration are obligatory. Then the Legislature goes on to say what the effect of such a declaration is.
4. Then it is urged by the Advocate General that whereas Sub-section (1) of Section 5 is substantive and confers power upon Government, Sub-section (2) is procedural. There the Advocate General is right. Having conferred the power to requisition under Sub-section (1) the Legislature laid down the mode or manner in which that power should be exercised and the Legislature directed that the State Government must observe certain requirements before it should proceed to make the order of requisition. We have had occasion to point out in the past that when we are dealing with a legislation that seriously interferes with the rights of the citizens, we must scrupulously consider every safeguard that the Legislature has provided in favour of the citizens and we must give effect to every such safeguard, and if we find that the State Government has failed to comply with any of the conditions laid down by the Legislature, then, although the State Government may have the power to requisition, that power not having been exercised as the Legislature intended it should be exercised, the order of requisition is bad,
We agree with the Advocate General that the State Government has the power to requisition not only residential premises but also non-residential premises. But whether the premises requisitioned are residential or non-residential, a certain procedure laid down by the Legislature has to be followed, and if the State Government fails to follow that procedure, then the exercise of the power is not a proper exercise and the order of requisition cannot stand. It may be, as the Advocate General has pointed out, that where you have business premises & where obviously they are not used for residential purpose, a declaration mentioned in Sub-section (2) may not be very appropriate and there may be no point in making such a declaration conclusive.
But we are looking upon the declaration not from the point of view of the State Government who may not want it in a particular case, but in our opinion the declaration is very important :from the point of view of a citizen. Whether the premises are business premises or residential premises, the idea of making both the inquiry and the declaration obligatory was to see that Government held an inquiry, applied its mind to what the inquiry resulted in, and made a formal declaration on the face of the order itself.
5. In our opinion, therefore, the petitioner is entitled to succeed and we must hold that the order of requisition passed on May 15, 1953 is bad. We direct the State Government forthwith to restore possession to the petitioner. Respondent No. 1 to pay the costs of the petition.
6. Petition allowed.