Azizul Haque vs State of West Bengal

T.K. Basu, J.—The Petitioner Azizul, Haque is the sole Mutwalli of a Wakf. The Wakf consists of various properties including premises No. 2 Syed Ameer Ali Avenue (hereinafter referred to as the said premises).

On June 29, 1946, the First Land Acquisition Collector, Calcutta, passed an order of requisition in respect of the ground floor and first floor of the said premises. The material portion of the order of requisition is in the following terms:

Now, therefore, in exercise of the powers conferred by Sub-rule (1) of Rule 75A and Rule 116 of the Defence of India Rules, which have been directed under Sub-section (5) of Section 2 of the Defence of India Act, 1939 (XXV of 1939), to be exercised by me, I hereby order in modification of the said order that the said buildings (together with the compound and including fixtures and fittings) shall remain at the disposal and under the control of the Land Acquisition Collector, Calcutta, upto September 30, 1946, unless relinquished earlier.

It is this order of requisition dated June 29, 1946, which is challenged before me in this application.

It may be mentioned at this stage that the operation of the provisions by the Defence of India Act, 1939 and the Defence of India Rules, 1939, framed thereunder ceased on September 30, 1946.

The Governor-General, in exercise of the powers conferred by Section 72 of the Government of India Act, promulgated on September 26, 1946, an Ordinance being Order No. 19 of 1946. The said Ordinance, however, was to come into force on October 1, 1946, by virtue of Clause 1(3) thereof.

The preamble to the Ordinance contains, inter alia, the following recital:

Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the Defence of India Act, 1939 (XXXV of 1939), expires, is subject to any requisition effected under Rules made under that Act, for the continuance of certain powers theretofore exercisable under the said Act or the said Rules...the Governor-General is pleased to make and promulgate the following Ordinance;

In the Ordinance ''requisitioned land'' was defined as immovable property which, when the Defence of India Act, 1939, expires, is subject to any requisition effected under the Rules made under that Act. Section 3 of the Ordinance provided as follows:

Continuance of requisition-Notwithstanding the expiration of, the Defence of India Act, 1939 (XXXV of 1939) and the Rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisition and in such manner as may appear to it to be expedient.

The Ordinance was followed, up by an Act known as the Requisitioned Land (Continuance of Powers) Act, 1947, which received the, assent, of the Governor-General on March 24, 1947. Under the Act, ''requisitioned land'', was defined to mean immovable property which at the commencement of the Act is subject to any requisition effected under the Rules made under the Defence of India Act, 1939. Section 10 of the Act repealed the Ordinance of 1946 and provided that anything done in exercise, of any power conferred by or under, the Ordinance shall be deemed to have been in exercise of powers conferred by the Act, as if the Act had commenced on October 1, 1946.

9.'' Mr. Subimal Roy appearing on behalf of the Petitioner submitted that since the life of the order of requisition in the present case expired on the September 30, 1946, the Ordinance of 1946 could not possibly continue the life of the requisition. It was pointed out that since the Ordinance came into force on October 1, 1946, it could only keep alive such orders of requisition which were effective and operative on the date of its commencement, i.e. October 1, 1946. Since the order of requisition, in the instant case, expired with the midnight on September 30, 1946, it could hot possibly be continued by the Ordinance.

Coming to the provisions of Section 3 of the Act, Mr. Roy submitted that ''requisitioned land'' within the meaning of the Act means only those, immovable properties which, at the commencement of the Act, were subject to any valid requisition effected, under the Rules made under the Defence of India Act, 1939. Since the Act came into force on March 24, 1547 and since the order of requisition in the instant case did not continue until that date, the order of requisition could not be revived or continued under the provisions of the Act, Even Section 10 of the Act did not save the instant order of the requisition as that Section of the Act merely validated actions taken under the Ordinance from October 1, 1946. Since the present order of requisition had expired before October 1, 1946, Section 10 of the Act could not keep it alive.

Reliance was placed in this connection on a decision of the Supreme Court in the case of Commissioner, of income tax, Bihar and Orissa v. Maharaja Pratap Singh Bahadur AIR 1961 S.C. 1026. In that case, the income tax Officer had issued certain notices u/s 34 of the Indian income tax Act, 1922, on August 8, 1948 and completed the assessment on the basis of the notices on August 26, 1948. Section 34 was amended by the income tax and Business Profits Tax (Amendment) Act 1948, with retrospective effect from March. 30, 1948. The amendment received the assent of the Governor-General on September 8, 1948. The amendment provided that before the income tax Officer could issue notices u/s 34 he had to obtain the previous approval of the Commissioner of income tax. It was contended on behalf of the Assessee that, as no such previous approval of the Commissioner of income tax had been obtained, the impugned notices were invalid. It was argued by the Revenue that Section 6 of the General Clauses Act and in particular, Clause (b) and (c) thereof saved the notices and the assessment. The Supreme Court held that the provisions as to the previous approval of the Commissioner was made with retrospective effect from March 30, 1948 and this retrospectivity of the provision indicated a different intention which excluded the application of Section 6 of the General Clauses Act. Since the notices were issued after March 30, 1948, without the previous approval of the Commissioner, the notices were, held to be invalid.

I do not see how this decision is of any assistance in deciding the question that is now before me. In the case before the Supreme Court, the only question was whether the provisions of Section 6 of the General Clauses Act were applicable. It was held that, since there was a contrary intention within the meaning of that Section, its operation was excluded. In my opinion, this decision is of no assistance to Mr. Roy in the present case.

Mr. Somen Bose appearing on behalf of the Respondent drew my attention to a decision of the Supreme Court in the case of The Dominion of India and Another Vs. Shrinbai A. Irani and Another, . In this case, the Ordinance of 1946 came up for consideration before the Supreme, Court. The principal, contention in that case was that those orders of requisition which Would have ceased to be operative because of the, expiration of the Defence of India Act and the Rules made thereunder were the only orders intended to be continued by Clause 3 of the Ordinance. But the category of orders, i.e. those which would have ceased to be operative and come to an end by reason of the limitation placed on the period of their duration in terms of the orders themselves were not intended to be affected by Clause 3 of the Ordinance.

This contention had found favour with the learned trial Judge as also the Court of Appeal of the Bombay High Court.

The Supreme Court on a consideration of the preamble to the Ordinance and the provisions thereof came to the conclusion that all cases of immovable property which on September 30, 1946, were subject to ''any'' requisition whether effected for a limited period or for an indefinite period were covered by Clause 3 of the Ordinance. Even those requisition orders which whether by accident or design were to expire on September 30, 1946, were covered by Clause 3 read along with the definition in Clause 2(3) of the Ordinance and were, by the clear terms thereof, continued until the expiry of the Ordinance.

On the strength of the above decision, Mr. Somen Bose contended that although the present order of requisition would have expired on September 30, 1946, by virtue of the terms of the order itself, it was covered by Clause 3 of the Ordinance read with Clause 2(3) thereof. If it was a continuing order of requisition on October 1, 1946, when by virtue of the provisions of Section 10 of the Act, it would be deemed to be a valid order of requisition under the provisions of the Act itself.

In my view, the contention of Mr. Bose is sound and should be accepted. The Supreme Court decision is a clear authority of proposition that all kinds of requisition order whether for a definite time or otherwise were saved and continued by the Ordinance of 1946.

In that view of the matter, it must be held that the Ordinance of 1946 validly continued the present. Order of requisition and it was thereafter continued by virtue of the provisions of the Act.

The contention of Mr. Roy is, therefore, rejected.

In the result, this application fails. The Rule is discharged. All interim, orders are vacated. There will be no order as to costs.