Narayan Lal Maheswari and Others vs The State of Assam and Others

Sarjoo Prosad, C.J.—The petitioners in this application have prayed for a writ of mandamus commanding the respondents to forbear from giving effect to a notice dated 22-1-1954 directing requisition of a certain piece of land belonging to one ''Harbilas Sarkar, but purporting to include therein the land of the petitioners.

The relevant facts are as follows: In 1949 Mohan Lai Maheswari, the father of petitioner 1, purchased under a registered deed of sale about 2 Bighas 6 Kathas of land in exchange for some other land belonging to the family firm of the petitioners. This area was a part of Touji No. 580 of Bijni Raj Estate situated in Birjhora Mauza. The Touji in question consisted of about 14 Bighas of land in one and the same block the entire block standing in the name of Harbilas Sarkar.

It was from this that Harbilas Sarkar transferred and Mohanlal Maheswari acquired under a deed of exchange dated 29-8-1949, the lands in question. Thereafter, the petitioners made an application dated 3-8-1950 to the Bijni Raj Estate for making necessary corrections in the records of the landlord.

The entire plot held by Harbilas Sarkar, it appears, had been requisitioned for military purposes and was held by the military for a long time. Eventually, an area comprising of about 12 Bighas was derequisitioned in January, 1953, leaving out a small bit of land which was utilised for the Railway yard. It is stated by the petitioners that alter the release of the lands, they built some constructions over it with corrugated iron sheet roofs and one of those constructions was about 130 feet in length. This part of the petitioners'' case has not -been accepted by the respondents.

The petitioners further allege that they contemplated erecting a workshop of machineries and a Cinema house on the land in question. Soon after the derequisition order, it appears that the Deputy Commissioner of Goalpara purporting to act on the authority of the Assam Land (Requisition and Acquisition) Act, 1948, issued a notice on -22-1-1954 directing requisition of an area of 4 Bighas of land. The notice in question was addressed to Sri Harbilas Sarkar alone, and the land requisitioned was, described by certain boundaries.

A copy of the notice forms an annexure to this petition. By virtue of this notice, the Deputy Commissioner directed the officer in charge of the land requisition works to take delivery of the land on or Joe fore 15-2-1954. The object of the requisition is sifted to be for construction of a building for the State Transport Service. The petitioners had no notice at all of this requisition proceeding.

But having got scent of it, they made enquiries and found that although in the notice the land sought to be requisitioned was described by different boundaries, some alteration had been made in the office records under which the land acquired in exchange by the petitioners was also sought to be included in the requisition order.

The petitioners submitted an objection before the Deputy Commissioner stating that the requisition order was untenable, and could not affect the land of the petitioners there being no notice issued against them, and they also submitted that there were other lands completely vacant which could be suitably acquired by the Deputy Commissioner for the purpose mentioned in the notice, to Harbilas Sarkar. This objection was rejected by the Deputy, Commissioner.

The petitioners then preferred an appeal to the Government which was disposed of on 17-3-1954. The dismissal order shows that the appeal was dismissed on two grounds: (1) that the appellant before them was not Mohanlal Maheswari, and (2) that the land does not appear to have been in occupation of Harbilas Sarkar after the derequisition order.

The main ground on which the application is pressed before us is that in the absence of any notice against the petitioners, the action of the Deputy Commissioner in threatening to take possession of the petitioners'' land under cover of the notice issued on Harbilas Sarkar, is wholly illegal and without jurisdiction. The power to requisition; is vested in the Provincial Government by virtue of Section 3, Assam Land (Requisition and Acquisition). Act, 1948. Section 3 of the Act provides that

if in the opinion of the Provincial Government or any person authorised in this behalf by the Provincial Government it is necessary so to do for maintaining supplies and service''s essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation or drainage, the Provincial Government or the persons authorised, as the case may be, by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning.

There are certain exceptions in the case of land used for the purpose of religious worship and residential land. Sub-section (2) of Section 3 is particularly important in this case and the argument of the learned Counsel for the petitioners is based on this section. Under Sub-section (2) of Section 3 an order shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of a tenant also on such tenant.

The word "owner" is defined in Section 2(c) of the Act itself. It means proprietor or patta-holder and his co-sharer. This sub-section, therefore, requires imperatively that the order or the notice as contemplated by Sub-section (1) shall be served according to the manner prescribed, on the owner of the land and also, where it relates to land in occupation of tenants on such tenant. It is stated that the Bijni Raj Estate was the owner of the land in the present case.

Harbilas Sarkar was, of course, in the position of a tenant in respect of the entire area; but it is to be remembered that during the period that the land was requisitioned by the military, Harbilas. Sarkar appears to have transferred under a deed of exchange, the area which the petitioner claims, to the petitioner''s father. Therefore, after the deed of transfer, Harbilas Sarkar ceased to have interest in the land so exchanged as a tenant and the interest was admittedly transferred by Harbilas Sarkar.

Harbilas had, therefore, no interest left in this land thereafter, the interest having devolved by transfer on the petitioners. There can be no doubt then that in the eye of law the land will be deemed to be in occupation of the petitioners as tenants thereon The learned Government Advocate contends that occupation means physical occupation and the claim of the petitioners that after derequisition they made some improvement thereon, had not been accepted by the authorities concerned and therefore it should be held that the petitioners were not tenants in occupation and no service of notice u/s 3(2) of the Act was essential or required on them.

We are unable to entertain this objection. It is true'', that the local authorities have held, though not definitely, that the petitioners were not in occupation. All that they have said is that after the derequisition order Harbilas was not in occupation; but obviously Harbilas could not be in occupation because he had ceased to be in occupation after the interest had been transferred to the Sather of petitioner 1. Though their case of actual occupation may not be acceptable, there can be no doubt that legally after the derequisition of the land, it is the petitioners who would be deemed to be in occupation of the land as tenants.

The derequisition order was passed, as I have said, in January, 1953; and it is nobody''s case that the title of the petitioners to the land was in any way extinguished. That being so, it appears to be necessary that the order so as to be effective against the petitioners had to be served on them and in the absence of such service, the order could not take effect against the petitioners.

It is to be further observed that from the description of the boundaries given in the order itself it appears that the lands of the petitioners were not intended to be included. But when petitioner 1 made enquiries about it, he found that in the office records there had been some alteration in the boundaries so as to affect these lands as well.

The order issued and served on Harbilas Sarkar would, of course, be effective and Harbilas having admittedly a much larger area in his possession than is sought to be requisitioned, there is no reason why the order cannot take effect against him. Harbilas has not moved against the order nor has he made any complaint against it.

Mr. Medhi also urges that the failure to serve the order on the petitioners would not affect the validity or the binding nature of these orders and he relies, upon the analogy of Section 9 Assam Land (Requisition and Acquisition) Act to show that the service of notice would not affect the validity of the order itself.

The analogy, in our opinion, obviously has no application to this case. It is well known that in the land requisition proceedings a general declaration is made about the acquisition of a particular piece of land and thereafter notices are served u/s 9 upon the parties interested for the purpose of compensation. Therefore, the validity of the acquisition proceedings does not depend on the notice u/s 9 of the Act.

The analogy of Section 9, therefore, is of no assistance to the interpretation of Section 3(2) of the present enactment. The contention of the petitioner, in our opinion, is well founded and the order could not take effect. It is essential that service of the order had to be made on the petitioners describing properly the land held by them and that not having been done, the order cannot be enforced against them.

The application, therefore, must be allowed and it is directed that the order of requisition passed on 22-1-1954 shall not be given effect to against these petitioners.

Ram Labhaya, J.

I agree.