1. The appellant is the owner of the land and building at No. 1/6 Princes Golam Mohammad Road, Calcutta. One D. C. Goswami was a tenant of the entire ground floor of the building. The appellant obtained a decree for ejectment of the tenant, and started proceedings for execution of the decree. The connected misc. case was disposed of on July 23, 1960 in terms of a compromise by which the tenant agreed to vacate the premises on the expiry of October, 1060. On October 31 the executing Court rejected an application by the tenant for further time till November 3, and issued a writ for delivery of possession of the premises. Before this writ could be executed, the State Government passed an order on November 2, under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (W. B. Act V of 1947) requisitioning the premises and directing the 1st Land Acquisition Collector, Calcutta to take possession of it. The order stated that 'in the opinion of the State Government the premises ..... are needed for a public purpose.' On November 3, the Collector took possession of the requisitioned premises from the tenant and under his orders one Shri A. S. Nag occupied the premises. On the same day the baitiff of the Alipure Court visited the premises, but was unable to execute the writ for delivery of possession. The appellant was unable to persuade the Government to cancel the requisitioning order. On April 27, 1961 she obtained a Rule calling upon the respondents to show cause why they should not forbear from giving effect to the requisitioning order and all consequential orders and notices and why those orders and notices should not be quashed and set aside. On August 10, 1961 Sinha, J. discharged the Rule. He rejected the appellant's contention that (a) the impugned order was not supported by any public purpose and that (b) it was passed mala fide and in collusion and conspiracy between the tenant and the other respondents. The appellant challenges this finding. The respondents support it and also contend that the factual existence of a public purpose is not justiciable, and the subjective satisfaction of the State Government in this behalf is final.
2. The questions which arise in this appeal are (1) Is the factual existence of a public purpose for a requisition under Act V of 1947 justiciable (2) If so, was the order of requisition supported by a public purpose (3) Was the order passed mala fide ?
3. West Bengal Act V of 1947 was passed on January 1, 1918. Originally it was to remain in force upto March 31, 1950, but Section 1(4) authorised the Provincial Government to direct by notification in the official gazette that it shall remain in force for a further period or periods not exceeding in the aggregate three years. Though no notification was issued by the Provincial Government under Section 1(4) the Act was not allowed to expire on 1-3-1950. The life of the Act was extended from time to time -
upto 31-3-1953 by Act 15 of 1950 passed on 30-3-1950,
upto 31-3-1954 by Act 10 of 1953 passed on 28.3-1953,
upto 31-3-1957 by Act 7 of 1954 passed on 29-3-1954,
upto 31-3-1958 by Ordinance 2 of 1957 passed on 29-3-1957
upto 31-3-1960 by Act 9 of 1957 passed on 15-7-1957,
upto 31-3-1963 by Act 2 of 1960 passed on 19-3-1960,
upto 31-3-1984 by Act 9 of 1983 passed on 30-3-1983, and
upto 31-3-1968 by Act 29 of 1963 passed on 15-10-1963.
Substantial amendments in the body of the principal Act were made by Act 14 of 1949 passed on 3-3-1949 and by the aforesaid Act 7 of 1954 and 29 of 1963. Bearing in mind the past history and the policy of the legislature, it is unlikely that the Act will be allowed to expire on 31-3-1968. It is reasonable to think that the Act will not be allowed to expire in the near future and a requisition made under the Act will continue for an indefinite duration.
4. Section 3(1) of the Act empowers the State Government to requisition any premises! as defined in Section 2(e) if it appears to Government that the premises are needed or likely to be needed for any public purpose. On the requisition of the premises, the Collector may by order under Section 4(1) direct the person in possession of the premises to vacate it, and this order may be summarily executed under Section 9. Section 8 provides that the State Government may use or deal with the requisitioned premises for such public purpose and in such manner as may appear to it to be expedient. Sections 11 to 14 provide for payment of compensation, and the machinery of fixing it. By Section 3(4), the requisitioning order under Section 3(1) is made final. Section 21(1) provides that no order passed under the Act shall be called in question in any Court.
5. The course of decisions under the Act may briefly be noticed. In Sudhindra Nath Dutta v. Sailendra Nath Mitra, 87 Cal L J 140 : (A I R 1952 Cal 65) decided on May 23, 1950, Harries C. J. and Banerjee J. held that the Act was not ultra vires the the Constitution, that as it was passed well over two years before the Constitution came into force, it was protected from an attack based on Article 31(2) as it stood before the 4th amendment, that as a matter of fact the Act satisfied the requirement of Article 31(2), that Article 19(1)(5) had no application where the State compulsorily acquired property or obtained possession of it, that the Act deprived a person of possession of the property altogether at least temporarily and did for more than restrict his right to hold the property as that phrase was used in Article 19(1)(5), that the requisitioning order was an administrative act, and a person affected by it was not entitled to a hearing before it was made. In A. C. Mohamad v. Sailendra Nath, : AIR1951Cal294 decided on May 24, 1950, Harries C. J. and Banerjee J., held following Wijeyesekara v. Festing 1919 A C 646 : (AIR 1919 P C 155) that the requisitioning order, if made in good faith, was not open to challenge, and that the opinion of the Government that the premises were required for a public purpose was final and it was not competent to the Court to investigate the grounds or the reasonableness of the decision. In Janab Abdul Hamid v. State of West Bengal, : AIR1953Cal223 decided on February 27, 1952, H. K. Bose J., as he then was, held following Bela Banerjee's case : 1SCR558 that the Constitution has brought about a change and the question whether a requisition under the Act is for a public purpose is justiciable in a Court of law. In Srinivas Khedwal v. State of West Bengal, 0065/1954 : AIR1954Cal171 decided on May 12, 1953 Das and Debabrata Mookerjee JJ. held that the Act was an existing law within the meaning of Article 31(5) of the Constitution, that accordingly the principle of Bela Banerjee's case, : 1SCR558 , did not apply, and the constitutionality of the Act could not be canvassed, that the factual existence of a public purpose depended entirely on the subjective satisfaction of the Government and was not justiciable, and that the decision in Abdul Hamid's case, : AIR1953Cal223 , rested on unsound foundations. In Styanarayan Nathani v. State of West Bengal, : AIR1957Cal310 , decided on February 1, 1958, Chakravartti C. J., and Lahiri J, held that on July 10, 1952 when the requisitioning order was passed, the Act was not, having regard to the extensions of its life and the amendments made in it by the amending Act, an existing law within the meaning of Article 31(5), that Article 31(2) applied and the question whether the Act authorises requisition for a public purpose and also whether a particular order made under it was actually supported by a public purpose were both justiciable. In Paresh Nath Nundi v. State of West Bengal, : AIR1964Cal175 , decided on November 22, 1983, Bose C. J. and G. K. Mitter J., following the decision in Satya Narayan Nathani's case, : AIR1957Cal310 , went into the question whether the requisitioning order was supported by a public purpose. In many other cases, learned single Judges have followed Satyanarayan Nathani's case, : AIR1957Cal310 , on this point.
6. Section 3(1) of West Bengal Act V of 1947 authorises the State: Government to requisition any premises by an order in writing 'whenever it appears to the State Government that any premises in any, locality are needed or are likely to be needed for any public purpose', and this order is by Section 3(4) made final. Now on a purely textual interpretation, the section may mean that the subjective satisfaction of the State Government as to the existence of the public purpose is final and not justiciable. On the other hand, in the background of a constitutional guarantee that a law cannot provide for acquisition or requisition save for a public purpose, the section must be construed to mean that the opinion of the Government is final as to the need only, but it is not final as to the existence of the public purpose. Any law which makes the subjective satisfaction of the Government with regard to the existence of the public purpose final would indirectly enable the Government to make requisitions for private purposes and would be violative of the constitutional guarantee, see State of West Bengal v. Bela Banerjee, : 1SCR558 . Where a law is capable of two constructions, one of which would make it bad and the other good, we should adopt that construction which would uphold its validity, see In Re Hindu Women's Right to Property Act .
7. Now on a purely textual interpretation of the section, it was held in A. C, Mohamad's case, : AIR1951Cal294 and Srinivas Khedwal's case, 0065/1954 : AIR1954Cal171 that the opinion of the Government as to the existence of a public purpose was final and not justiciable. In the case of Province of Bombay v. Khushaldas S. Advani, : 1SCR621 , the Supreme Court had occasion to deal with a requisitioning order under Section 3 of the Bombay Land Requisition Ordinance 5 of 1947 which provided that
'If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by order in writing requisition any land for any public purpose.'
Kania C. J., Fazl Ali, Patanjali Sastri and Das JJ. held that the order of requisition was an administrative act and was not amenable to a writ of certiorari, whereas Mahajan and Mukherjea JJ. held that the order was a quasi-Judicial act and could be quashed by the writ of certiorari. Nevertheless Kaoia C. j., Fazl Ali, Patanjali Sastri, Mahajan and Mukherjea JJ. held that under Section 3 of the Bombay Ordinance the factual existence of the public purpose was an essential pre-requisite to any action under it and was therefore open to challenge, and in the opinion of those Judges who held that the writ of certiorari could not issue, such a challenge could be made in a suit only, see pp. 837, 640-647, 648, 690, 678-9 of S C R : (at pp. 227, 228-231, 231, 235, 242-243 of AIR), whereas Das, J. held that the opinion of the Government as to the existence of a public purpose was final, see at p. 705 of S C R : (at p. 252 of AIR). But it is interesting to notice that both Mukherjea J. and Das J. at pp. 681 and 714 of S C R : (at pp. 243 and 255 of AIR), expressly approved of the decision in A. C. Mohamad's case : AIR1951Cal294 Mukherjea, J. said
'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 a public purpose has not been made a condition precedent to the exercise of powers by the Provincial Government.'
On the authorities as they now stand, we must hold that on a purely textual interpretation of the section and in the absence of a constitutional guarantee that the property could not be requisitioned save for a public purpose, the subjective satisfaction of the Government as to the existence of a public purpose would be final.
8. Article 31(2) of the Constitution after the fourth amendment provides a constitutional guarantee that no property shall be compulsorily acquired or requisitioned save for a public purpose. Before the fourth amendment the constitutional guarantee embodied in the section was even wider. On the date of the commencement of the Constitution, West Bengal Act V of 1947 was an existing law covered by Clause 5 of Article 31 and immune from an attack based on Article 31(2). After the Constitution came into force, by different Acts passed from time to time, the life of the principal Act was extended and substantial amendments were made therein. Srinivas Khedwal's case 0065/1954 : AIR1954Cal171 was decided on the footing that in spite of the amending Act IV of 1949 passed within 18 months of the commencement of the Constitution, the principal Act was an existing law covered by Article 31(5) and the existence of public purpose was not justiciable. In Satyanarayan Nathani's case : AIR1957Cal310 , it was however held that having regard to the subsequent Acts passed after the commencement of the Constitution and also within 18 months before it, by which the life of the principal Act was extended and substantial amendments were made therein, the principal Act was not an existing law within Article 31(5), but was an Act to which the provisions of Article 31(2) applied. In coming to this conclusion, the Bench relied upon the decision in State of Bombay v. Bhanji Munji, : 1SCR777 where the Supreme Court examined the constitutionality of the Bombay Land Requisition Act (Bombay Act 33 of 1948) by reference to Article 31(2), though that Act was passed on April 11, 1948 more than 18 months-before the commencement of the Constitution, and the Bench thought that the Supreme Court must be taken to have decided that Bombay Act, 33 of 1948 was not an an existing law covered by Article 31(5), because by Bombay Acts 2 of 1950 and 29 of 1950 passed after the Constitution came into force the life of the principal Act was extended and substantial amendments were made therein. But it is to be observed that in Bhanji Munji's case, : 1SCR777 the Supreme Court assumed rather than decided that the principal Bombay. Act 33 of 1948 was not an existing law within the meaning of Article 31(5). In the case of Lilavati Bai v. State of Bombay, : 1SCR721 , the Supreme Court held that the principal Bombay Act was covered by el. 5 (a) of Article 31, being an, existing law other than a law to which the provisions of Clause 6 of Article 31 apply and would be valid even though the provisions of Clause 2 of the article-were not fully satisfied, and the aforesaid amending Bombay Acts 2 of 1950 and 29 of 1950 were merely extensions or explanatory of the existing substantive law and were not such laws as are referred to in Clause 3, of the article and consequently were not invalid though they had not received the assent of the President. The plain implication of this decision is that the principal Bombay Act 33 of 1948 continued to bean existing law covered by Clause 5 of Article 31 in spite of the extensions of its life and the amendments made in it by the amending Acts passed after the commencement of the Constitution. Accordingly Bose J., as he then was, held in the case of Sm. Kamala Bala v. State of West Bengal, 0065/1962 : AIR1962Cal269 that the West Bengal Land Requisition and Acquisition Act (2 of 1948) passed on March 11, 1948 in spite of the extension of its life and substantial alterations made in it by West Bengal Ordinance 5 of 1957 and West Bengal Act 12 of 1957 could not, in view of the decision in Lilavati's case, (S) : 1SCR721 be regarded as a statute passed or enacted after the Constitution (4th Amendment) Act 1955. He observed that the decision in Satyanarayan Nathani's case, : AIR1957Cal310 on this particular point cannot be regarded as good law in view of the decision of the Supreme Court in Lilavati's case, (S) : 1SCR721 . We agree with the observation, of Bose J., as he then was, on this point we hold that West Bengal Act 5 of 1947 in spite of the extensions of its life and the substantial amendments made therein by the subsequent Acts, is an existing law covered by Clause 5 of Article 31. We are, therefore, unable to interpret this Act in the light of the constitutional guarantee embodied in Article 31(2) of the Constitution and on that basis to hold that the existence of a public purpose is justiciable and that the opinion of the Government in this behalf is not final.
9. Mr. Deb, however, contends that tested in the-background of the constitutional guarantee embodied in the Government of India Act, 1935 which was in force when West Bengal Act V of 1947 was passed, we must hold that the existence of a public purpose is justiciable. Now Section 299(2) of the Government of India Act provided that neither a Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquistion for public purposes of any land, unless the law provided for the payment of compensation for the property acquired and either fixed the amount of the compensation or specified the principles on which] and the manner in which it was to be determined. By Section 299(5) the word 'land' included immovable property of every kind and any rights in or every such property. Besides, land as defined in Section 3 of the English Interpretation Act, 1889 includes 'messuages tenements, and hereditaments, houses and building of any tenure' and by Sections 3 and 31 of that Act this definition, unless the contrary intention appears, applies to the Government of India Act, 1935 and to all instruments issued under. The word 'land' in Section 299(2) would therefore cover buildings and huts as also premises as defined in West Bengal Act V of 1947. The argument of Mr. Deb is that the word 'acquisition' in Section 299(2) included 'requisition' and that the section provided a constitutional guarantee that the legislature could not make any law authorising the compulsory requisition of any land save for a public purpose.
10. In form Section 299(2) was a fetter on the competency of the legislature, but in substance it was a [positive guarantee of the citizen's right to property, and this constitutional guarantee in a different form was lifted into the category of a cherished fundamental right and was embodied in Article 31 of the Constitution, see Dhirubha Devisingh v. State of Bombay, (S) : 1SCR691 . The section limited the power of compulsory acquisition of land by the State. Land included immovable property and 'any rights in or over such property.' which meant 'derivative rights, like interests carved by an owner, a lessee, mortgagee, etc.', see Guru Datta Sharma v. The State of Bihar, : 2SCR292 . Any law providing for compulsory acquisition of land or the derivative rights in it must satisfy two conditions. The law must provide for compensation, i e., a just equivalent of the thing acquired, see State of West Bengal v. Bon Behari Mondal, : AIR1961Cal112 , State of Orissa v. Satyabadi Panda, , applying : 1SCR558 . It makes no difference that the law is temporary, see Bon Behari's case, 64 Cal W N 722 : (AIR 1981 Cal 112). The second condition was that the law could authorize the acquisition for a public purpose only. The last condition is implicit in Section 299(2) and, we may observe also implicit in Article 31(2), see Somawanti v. State of Punjab, AIR 1983 SC 151 at p. 161), (Para 20). Thus an essential limitation of law authorizing the compulsory acquisition of land, where the law is subject to Section 299(2) is that the acquisition must be for a public purpose only. A law providing acquisition for private purposes would be repugnant to Section 299(2) and would be invalid. The invalidity would not be cured by the Constitution, except where it expressly says so, e.g., in Article 31(6).
11. We think the word 'acquisition' in Section 299(2) includes the requisition of land for the use and occupation of the Government. Every injurious affection of property short of acquisition is not action of the nature described in Section 299(2). To come within the scope of the section the law must be a confiscatory legislation. No acquisition of land or of any rights in or over it is involved in a law which increased the land revenue, see Kunwar Lal Singh v. Central Provinces and Berar or which 'regulate (s) the relations of landlord and tenant and thereby diminish (es) rights, hitherto exercised by the landlord in connection with his land,' see Jagannath Baksh Singh v. United Provinces affirming , Hulas Narain Singh v. Deen Mohammad Mian . In Jaganath Baksh Singh's case , Lord Wright said: 'In the present case there is no question of confiscatory legislation.' A Motor :Vehicles Amendment Act imposing restrictions on the business of stage carriage operator does not involve the acquisition of a commercial undertaking, see Bhikaji Narain v. State of Madhya Pradesh, : 2SCR589 . In that case S. K. Das Ag. C. J,, said that the word 'acquisition' in Section 299(2) 'had the limited meaning of actual transference of owership' as held in Lal Sing's case. and 'not the wide meaning of deprivation of any kind' given by the Supreme Court to the word acquisition appearing in Article 31(2) before the Fourth Amendment. We think that in Bhikaji Narain's case, : 2SCR589 , S. K. Das Ag. C. J., was only summarizing what Spens C.J., said in Lal Singh's case . See also the Comments of Subba Rao C. J., in K. C. Venkata Chalamayya v. State of Madras AIR 1958 Andh Pra 173 (FB). Now in Lal Singh's case , Spens C. J., said that acquisition implies transference of land or of rights in or over it, but he did not say that acquisition implies 'transference of ownership' of the land. He said:
'It further seems to us that the word 'acquisition' implies that there must be actual transference of, and it must be possible to indicate same persons or body to whom is or are transferred, the land or rights referred to, It is impossible, in our view, to suggest that when the land revenue is increased, there is any transference to the Provincial Government or any other person of any land or rights in or over immovable property, which remains in the same possession or ownership as immediately before the increase of the assessment.'
Consistently with the test laid clown by Spens C. J., compulsory acquisition may include compulsory transference of possession for the beneficial enjoyment of the Government to the exclusion of the owner, A law which provides for the compulsory control and management of a forest subject to payment to the landlord of the net profits accruing from the working and management of the forest and providing that during such management, the landlord will not be competent to deal with, mortgage or lease the forest, does not involve compulsory acquisition of land, see : 2SCR292 , Rajagopalan J. observed:
'The contention urged by learned Counsel for the appellant that the deprivation of the land holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within Section 299(2) of the Government of India Act, 1935, must be rejected. * * * Property, as a legal concept is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All these of course would be subject to the relevant law--procedural or substantive--bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constitute 'property'. So understood there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an 'acquisition' of the property itself within Section 299(2) of the Government of India Act, 1935.'
Apparently, this luminous and well balanced statement of the law was necessary, because their Lordships did not consider the formula of 'transference of ownership' to be sufficient. The compulsory management and control of land subject to a liability to account to the owner for the net profits of the land is no more an acquisition of land than the management and taking over of the estate of a disqualified proprietor by the Court of Wards. The beneficial enjoyment of the income by the owner is not affected. The State takes over the burden of management and control, and it makes no acquisition, see AIR 1958 Andh Pra 173- No one would say that the State, by taking over this burden satisfies its greed or its acquisitive instinct. You do not take my land considered as a bundle of rights, when you injuriously affect one or more of the individual strands of the bundle or when you restrict my use and enjoyment of it. But you do take my land when by authority of law and without my consent you take possession of it, enjoy and appropriate to yourself its income and exclude me from its beneficial enjoyment altogether for an indefinite period. I say that, by such compulsory transference of possession and enjoyment, you take, acquire, confiscate and seize my land, and it matters not that the title in the land or any derivative right in or over it has not vested in you. Rajagopalan I considered that the principles laid down in Belfast Corporation v. O. D. Cars Ltd., 1960 A C 490 were apt as an aid in the construction of the content of the expression 'acquired' in Section 299(2). In the case last cited the House of Lords held that the restrictions imposed by the Irish Planning Acts on the space about buildings, the number of buildings to be erected, and the height, character or user of the buildings could not be described as an authorisation to 'take any property without compensation' in contravention of Section 5(1) of the Government of Ireland Act, 1920. Viscount Simonds said at page 517 that 'anyone using the English language in its ordinary signification' would agree that 'property' is a word of very wide import, including intangible and tangible property. But he would surely deny that anyone of those rights which in the aggregate constituted ownership of property could itself and by itself aptly be called 'property' and to come to the instant case, he would deny that the right to use the property in a particular way was itself property, and that the restriction or denial of that right by a local authority was a 'taking,' 'taking away' or 'taking over' of 'property.' In every civilized society, the owner is restricted in his free enjoyment of the property by building regulations and to say that a law imposing those restrictions was a law authorising the taking of the property was surely a fanciful argument. Viscount Simonds said also at page 519:
'Nor would I cast the least doubt upon the decision in, Minister of State for the Army v. Dalziel (1944) 68 C L R 261 or anything that was said by the learned Judges who decided it. But having said so much, and fully recognising the distinction that may exist between measures that are regulatory and measures that are confiscatory, and that a measure which is ex facie regulatory may in substance be confiscatory, I must add that, if, as I suppose it is, the question is one of degree and the dividing line is difficult to draw, yet I have no doubt that such an enactment as the Act of 1931, and in particular Section 10 (2), falls well on the regulatory side of it.'
Now in (1944) 68 C L R 261, Rich, Starke, McTiernan and Williams JJ. of the High Court of Australia (Latham C. J. dissenting) held that the taking under regulation 54 of the National Security (General) Regulations by the Commonwealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within Section 51 (xxxi) of the Australian Constitution, and that in the particular case the taking constituted an acquisition of Dalziel's right to use the land of which he was the occupier and weekly tenant and on which he had erected a car parking station with the permission of the owner. Rich J. said that 'the Minister has seized and taken away from Dalziel everything that made the weekly tenancy worth having and left him with the empty husk of tenancy. Rich J. also said that it would be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorizing an acquisition of a citizen's full rights except upon just term, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely on any terms it chooses or upon no terms at all Me Tiernan J. said 'The acquisition of the possession of land is an instance of the acquisition of property.' Starke and Williams JJ. were of the same opinion. Mahajan J. in Dwarkadas Shri-nivas v. Sholapur Spinning and Weaving Co. Ltd., : 1SCR674 , agreed with the opinion of Rich J. and or the majority of the Court in Dalziel's case, (1944) 68 C L R 261. Patanjali Sastri C. J. and Das J. also quoted with approval portions of the judgment of Rich J. in Charanjitlal Ghowdhuri v. Union of India, : 1SCR869 . Compulsory acquisition in a comprehensive sense includes indefinite use and occupation and is so treated in our basic law relating to land acquisition. Part VI of the Land Acquisition Act, 1894 provides for temporary occupation of waste or arable land for a public purpose on payment of compensation. In Attorney General v. De Keyser's Royal Hotel Ltd., 1920 A C 508, at p. 569 Lord Parmoor said. 'It is not easy to see what the distinction is between disseisin and an indefinite use and occupation, which may extend beyond the estate of any particular owner.' Compulsory vesting of title and compulsory use and occupation for an indefinite period are but different forms of compulsory acquisition and are subject to the constitutional guarantee embodied in Section 299(2). The laws authorizing acquisition create an original right in the Government rather than effect a transfer of the right, title and interest of the owner. Section 16 of the Land Acquisition Act, 1894 vests the acquired land absolutely in the Government free from incumbrances. West Bengal Act V of 1947, instead of vesting in the Government an, estate or interest known to the general law creates a special statutory right to take possession of the property, and on possession being taken, to use, occupy and deal with the property to the exclusion of the owner. The Act creates a special right of property and nothing is gained by comparing it with other absolute and limited rights recognized and protected by the law. In Dalziel's case, (1944) 88 C L R 261, Starke J. said.
'The right conferred upon the Commonwealth may be classified, I think under the denomination of jura In re aliena, and so a right of property, the subject of acquisition. Nothing is gained by com paring the right given by Regulation 54 to the Commonwealth with various estates or interests in land of limited duration or with rights over the land of another recognized by the law, for it is a right created by a statutory regulation and dependant upon that regulation for its operation and its effect.'
12. There is a real distinction between taking and other measures short of taking. Sometimes it may be difficult to draw the dividing line, but more often one may easily say on which side of the line, the action lies. You do not take my animal, when you maim it, but you do take it when you carry it away and use it forever or for an indefinite period. A savage conqueror takes the wife of a peaceful inhabitant when he forcibly marries her, and also when he keeps her as a concubine for an indefinite period, but he does not take her when he commands the husband not to visit his wife. The king does not take the land of the subject, when he commands the subject to use the land in a particular manner, but he does take the land when he forcibly vests the title to the land in himself. He also takes the land when he occupies and enjoys it for an indefinite period to the exclusion of the owner. In such a case it was well said by Rich J. in DalziePs case, (1944) 68 C L R 261, that :
'You take my house, when you do take the prop. That doth sustain my house ; you take my life, when you do take the means whereby I live.'
13. In Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom 216, Bbagwati J. held that Section 2 (2) (xxiv) of the Defence of India Act and Rule 75-A of the Defence of India Rules authorising the requisition of immovable property was ultra vires the Central legislature, and was not authorised by Entries 9 and 21 in List II of Schedule VII of the Government of India Act, 1935, read with Section 102 and the Proclamation of Emergency during the second world war. This decision was given on 9th August 1945, in those dark days when our country lay pros-trate at the feet of a foreign imperial power. It was a remarkable decision and attracted great public atten. tion. Bhagwati J. construed Entries 9 and 21 of List II somewhat narrowly and stressed the point in favour of the freedom of the subject, hut his decision cannot now be supported. His interpretation of Entry 21 of List II no longer holds the field having reeard to the decision of the Privy Council in Meghrai v. Allahrakhia, A I R 1947 P C 72: see Assistant Collector, Thana v. Jamnadas Gokuldas, AIR 1960 Bom 35. His decision with regard to Entry No. 9 of List II is based largely upon his preference to the judgment of Latham C. J. in Dalziel's case, but we think that the judgment of the majority in that case should be preferred. The decision in Tan Bug Taim's case AIR 1946 Bom 216, was disapproved by Mahajan J. in : 1SCR674 . The effect of the decision was nullified by subsequent legislation. On 23rd February 1946 the Imperial Parliament enacted the India (Proclamations of Emergency) Act 1945 by which Section 102 of the Government of India Act 1935 was amended retrospectively as from the commencement of Part III of the Act and the Central Legislature was empowered while a Proclamation of Emergency was in force 'to make laws, whether or not for a Province or in particular thereof with respect to any matter not enumerated in any of the Lists in the Seventh Schedule of this Act' and provision was made for reversal of judgments passed by a High Court as to the validity of any law, ordinance, order, bye-law, rule or regulation. On April 1. 1946, the Imperial Parliament passed the Indian (Central Government and Legislature) Act 1946 authorising inter alia the Indian Legislature to make laws for the continuance of requisitions of land made under the Defence of India Rules. Accordingly on March 24, 1947 the Central Legislature passed the Requisitioned Land (Continuance of Powers) Act 1947 (Act XVII of 1947) continuing the requisitions so made until the expiry of the Act. By Notification No. 311-47-C & G. N. dated 25-10-1947 issued under Section 104 of the Government of India Act, 1935 the Governor General empowered
'all Provincial Legislatures to enact laws with respect to the requisitioning of land, being a matter not enumerated in any of the Lists in the Seventh Schedule in the said Act.'
Nevertheless in Shyam Krishen v. State of Punjab, the Punjab High Court held that Entry 9 of List II authorized the Provincial Legislature to enact laws with respect to the requisitioning of land. Weston C. J. said
'In my opinion, requisition is a form of compulsory acquisition and Legislation providing for requisitioning property fell within Item 9 of List II of the Government of India Act.'
It is also remarkable that in Paresh Chandra v* State of Assam, : 3SCR88 , Shah J. thought that the Assam Land (Requisition and Acquisition) Act 1948 passed by the Assam Legislature on November 14, 1948 was presumably made under Entry 9 List II of the Seventh Schedule of the Government of India Act 1935 which related to 'compulsory acquisition of land'. The power to requisition land under Rule 75-A of the Defence of India Rules was firmly established as a result of India (Proclamation of Emergency) Act 1945 and the question then arose whether the persons interested in the requisitioned land were entitled to compensation. In the Province of Bengal v. The Board of Trustees for the Improvement of Calcutta, 50 Cal W N 825 : (AIR 1946 Cal 416) decided on February 20, 1946, Mitter and Akram JJ. held that the owner of the requisitioned land was entitled to compensation under Section 19 of the Defence of India Act 1939, that requisitioning of land was an action of the nature described in Section 299(2) of the Government of India Act 1935, that Section 19(1)(c) (is) contemplated ''temporary acquisitions' and that requisition in relation to land transferred possession, and was an 'acquisition'. We may add that In Re P. S. Venkatasubbier : AIR1945Mad104 , Happell J. upheld the vires of Rule 75-A so far as it related to requisitioning of moveables.
14. Article 31(2) of the Constitution before the 4th amendment used the word 'acquisition' side by side with the expression 'taking possession of'. Both Patanfaii Sastari C. J. and Mahajan J. thought that even under Article 31, the word 'acquisition' was broad enough to comprise a temporary taking of the land, see State of West Bengal v. Subodh Gopal Bose, : 1SCR587 , and Dwarkadas Shriniva's case, : 1SCR674 . Patanjali Sastri C. J. said that the word 'acquisition' is not a term of art and it ordinarily means coming into possession of, obtaining, gaining or getting as one's own and to say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his consent, that when the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner, that ao formula of vesting is necessary and that the word 'acquisition' and its grammatical variations should in the context of article 31 and the Entries in the Lists be-understood in their ordinary sense and the additional words 'taking possession of' or 'requisitioning' were used in article 31(2) and in the Entries respectively not in contra-distinction with, but in amplification of the term 'acquisition'. Mahajan J. said that 'constitutional provisions could not be construed merely by taking a dictionary in hand, that the word 'acquisition' has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of.' B. K. Mukherjea and Dass JJ. however expressed a contrary opinion : see : 1SCR869 and Subodh Gopal Bose's case : 1SCR587 . Mukherjea J, said that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be, and Das J, thought that the word ''acquisition' had become, as it were, a word of art having a long accepted legislative meaning implying the transfer of title. With respect we prefer to follow Patanjali Sastri C. J. and Mahajan J. on this point, where, as in article 31(2), one finds the word 'acquisition' used in association with the expression 'taking possession of' there may be some scope for argument that the word acquisition should be given a restricted meaning and should not be construed so as to include the taking of possession, but we find no warrant for giving such a restricted meaning to the word 'acquisition' in Section 299(2) where the word 'acquisition' is used alone. The State power of acquisition includes the power of requisition and temporary occupation of land. The word 'acquisition' in a comprehensive sense includes requisition also, and Shah J. in Paresh Chandra Chatterjee v. The State of Assam : 3SCR88 said that in Section 15 (1) (b) of the Tea Act, 1953 the word 'acquisition' must have been used in that comprehensive sense.
15. Where the State compulsorily acquires title to the land, there is no right left to which article 19(1)(f) of the Constitution can apply. Article 19(1)(f) pre-supposes the existence of a right to hold the property. On a compulsory acquisition of title, there is no right left to the property, and an attack on the law based on Arlicle 19 (1) (f) is futile, even though the law, e.g. the Land Acquisition Act, being an existing law within the meaning of Clause 5 of article 31 is protected from an attack based on Article 31(2): see AIR 1983 S C 151, at p. 160 para 20, Baba Barkya Thakur v. State of Bombay, : 1SCR128 . So also where the State compulsorily acquires possession and beneficial enjoyment of the property to the exclusion of the owner for an indefinite period, there is no light left to which article 19(1)(f) applies. In : 1SCR777 Bose J. said
''These Articles deal with substantial and substantive rights and not with illusory phantoms of title. When every form of enjoyment which normally accompanies an interest in this kind of property is taken away, leaving the mere husk of title, Article 19(1)(f) is not attracted. * * * In the present case, the right to occupy the premises is gone and also the right to transfer, assign, let or sub-let. What is left is but the mere husk of title in the leasehold interest; a forlorn hope that the force of this law will somehow expend itself before the lease runs out'.
Thus on a compulsory requisition and occupation of the property for an indefinite period, the owner is left with an illusory phantom of a title, and an attack on the law authorising the requisition based on article 19(1)(f) is futile, though the law being an existing law within the meaning of Clause 5 of article 31 is immune from an attack based on Clause 2 of Article 31 e. g.. The Bombay Land Requisition Act 1948, see : 1SCR777 , : 1SCR721 , the West Bengal Land (Requisition and Acquisition) Act (II of 1948), See Sitabati Debi v. State of West Bengal, Civil Appeal No. 322 of 1961 decided by the Supreme Court on December 1, 1961 (unreported) affirming :the decision of Bose J., as he then was, reported in 0065/1962 : AIR1962Cal269 , Sachindra Mohan Nandy v. State of West Bengal, : AIR1963Cal373 , The West Bengal Requisition and Control (Temporary Provisions) Act 1947 (Act V of 1947), see 87 Cal L J 140 : (AIR 1952 Cal 65). It will appear therefore that compulsory requisitioning of land is confisca-tory in character and in substance is a measure of compulsory acquisition. Judged by this test, West Bengal Act V of 1947 is a law authorizing compulsory acquisition of land and is subject to the constitutional guarantee embodied in Section 299(2) of the Government of India Act, 1935. West Bengal Act V of 1947 can therefore authorize the requisitioning of land for public purposes only. In the background of this constitutional guarantee, Section 3(1) of the Act must be construed to mean that given a public purpose, the opinion of the Government as to the need for requisitioning the premises is final, but the factual existence of the public purpose is justiciable and the opinion of the Government in that behalf is not final. We may add that in , the Punjab High Court held that the Punjab Requisitioning of Immoveable Property (Temporary Powers) Act 1947 was subject to the constitutional guarantee embodied in Section 299(2) and if repugnant to this Section, could be declared ultra vires.
16. Now was there a public purpose supporting the requisition in the instant case? The contention of the respondents is that the purpose of providing residential accommodation for employees of the State Government is a public purpose, and that in the instant case there was such a purpose. Now a public purpose must include a purpose, that is, an object or aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned, see : 2SCR774 , Hamabai Framjee Petit v. Secy. of State, 42 Ind App 44 : (AIR 1914 P C 20). In State of Bombay v. R. S. Nanj's, AIR 1958 S C 294, at p. 297 Imam J. said
'We must regard Hamabai's case, 42 Ind App 44: (AIR 1914 P C 20) as a decision to the effect that the general interest of the community was directly and vitally concerned with the efficiency of the government servants because it would be to its benefit to have such servants and therefore providing living accommodation for them was a public purpose.'
In 68 Cal W N 264 : AIR 1981 Cal 175, (reversing65 Cal W N 794) the Court quashed the order ofrequisition made at the instance of a lady professorwho wanted to circumvent a notice of ejectmentserved on her husband in respect of the premises, andwhere another flat equally suitable for her wasavailable. In all the circumstances of the case theCourt held that the requisition was not related toany public purpose. In : AIR1957Cal310 , Chakravartti C, J.doubted whether on the facts of that case there wasa public purpose, but he did not decide the pointfinally. Both the decisions insist on proof thatattempts had been made by the Government employedto secure alternative accommodation and suchattempts had failed, and also proof of some specialreasons showing that it was essential to provide the employee with residential facilities ina particular locality in order that he may be able toperform efficiently the duties of his office: see alsoBepin Bihari Sadhukhan v. First Land AcquisitionCollector, Calcutta, 64 Gal W N 179, SachindraNath Mukherji v. State of West Bengal, : AIR1958Cal510 , G. Jaiswal v. First Land Acquisition Collector, 62 Gal W N 158. Each case must depend on itsOwn facts. It appears to us that the object or aim ofproviding living accommodation for employees ofthe Government is a public purpose where the provision of such accommodation is necessary in theinterest of public service.
17. The impugned order did not set out on its face any particular public purpose, but the omission to do so is not fatal to it, See (S) : 1SCR777 . In our opinion ample public purpose is disclosed in the affidavits filed on behalf of the respondent.
18. The requisitioned premises were allotted to Sri A. S. Nag who is residing there. Sri Nag is the Deputy Secretary in the Labour Department of the Government of West Bengal. He has onerous duties to perform in connection with this important department of the State Government. His duties require his presence in Calcutta, and it is necessary in the interest of public service to provide suitable accommodation for him in Calcutta. All telegrams addressed to the department are delivered outside normal office hours to him at his residence. He has to carry urgent and important files to his residence. The officers of the various directorates under the department have sometimes to call at his residence after office hours and on holidays particularly in times of labour strikes, lockouts and similar troubles for discussions with him. Sri Nag does not own any house in Calcutta. He was formerly occupying a flat at No. 28/A Shyamaprosad Mukherjee Road, Calcutta consisting of 2 living rooms and a pantry. The accommodation in this flat was too small for Sri Nag and his family consisting of 9 members including his wife, children and old parents. In spite of his continued efforts for months he was unable to obtain a suitable accommodation on rent. The accommodation at this flat was so meagre that Sri Nag had to receive his official visitors in an open verandah and to carry on discussions with them there- We are satisfied that Sri Nag was unable to discharge efficiently at his former residence all those official duties which have to be discharged by him at his residence outside office hours. Sri Nag needed a much larger accommodation and that this need was partly attributable to the exigencies of his official work. There is a real and intimate connection between his official duties and his living accommodation. On coming to know that the ground floor of premises No. 1/8 Golam Mohammad Road was about to be vacated, he requested the Government to requisition the premises and the requisition was accordingly made. The requisitioned flat consists of 7 rooms, two baths and two kitchens. We are satisfied that the provision of this larger accommodation was necessary in the interest of public service. The flat at 28A Shyamaprosad Mukherjee Road was simultaneously requisitioned to provide accommodation for Sri A. Roy who is a Land Acquisition Collector, Calcutta. Sri Roy had no place of residence in Calcutta and was attending to the duties of his office in Calcutta as a daily passenger from Burdwan. The requisitioned flat at Shyamaprosad Mukherjee Road was allotted to Sri Roy and he has resided there ever since. We agree with D. N. Sinha, J., that the requisitions of both the flats are for a public purpose, and that by simultaneously requisitioning the two flats and then making suitable allotments, the law has not been violated.
19. The charge of mala fides is not proved. There is reason to believe that the tenant Sri D. C. Goswami disclosed the relevant information with regard to the vacancy of the flat to Sri A. S. Nag and thus enabled Sri Nag to move the Government for the requisitioning of the flat. But the requisitioning was not made for the benefit of Sri Goswami. The charge of collusion, conspiracy and bad faith of the Government is not proved. There is no colourable exercise of the power conferred by Section 3(1) of Act V of 1947.
20. In our opinion, D. N. Sinha, J., rightly discharged the Rule. The appeal be and is hereby dismissed. There will be no order as to costs.
Arun K. Mukherjea, J.
21. I agree.