Calcutta High Court
State Of West Bengal And Others vs Daulat Singh Surana And Others on 7 September, 1990
Equivalent citations: AIR1991CAL355, AIR 1991 CALCUTTA 355, (1992) 7 LACC 437
Author: G.N. Ray
Bench: G.N. Ray
ORDER G.N. Ray, J.
1. This appeal is directed against the judgment passed by the learned trial Judge in a writ proceeding being C.R. No. 8407(W) of 1987. By the aforesaid judgment, the learned trial Judge has held that the impugned action of requisition and/or acquisition of premises No. 4, Pretoria Street, Calcutta is illegal and void. The learned trial Judge quashed the order of requisition being No.8/S6/II/48 dated 31st May, 1986 (Annexure 'A' to the writ petition) along with order dated 16th August, 1986 passed under S. 4 of the West Bengal Requisition and Acquisition Act, 1948 (West Bengal Act II of 1948).
2. The relevant facts concerning the writ petition and the instant appeal are set out hereunder.
Premises No. 4, Pretoria Street, Calcutta was requisitioned under the Defence of India Rules. It appears that after the requisition, the ground floor was used as the office of the Deputy Commissioner of Police (Security Control) and the first floor was used as the residential quarter of the said Deputy Commissioner. On 28th December, 1947, the said property was de-requisitioned and after such de-requisition the Government became direct tenant under the then owners at a rental of Rs. 693 /- per month. On 30th January, 1959, the said premises was requisitioned under the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 and the rent compensation was fixed at Rs. 777/- per month. In 1984, the writ petitioners being the owners of the said premises challenged the legality and validity of the said order of requisition and continuance of such requisition over a long stretch of time. Such writ proceeding was numbered as Matter No. 872 of 1984. After a contested hearing the said writ proceeding was disposed of by this Court and the learned single Judge disposing of the said writ petition was of the view that when it was intended by the Government to use the requisitioned premises permanently or for a very long period, there was no justification to keep the premises under requisition for such a long time. If the premises was really required for a public purpose, the Government should have acquired the same under the appropriate Act. In the circumstances, the learned trial Judge quashed the order of requisition under the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947, but allowed the continuance of requisition of the covered area for six months and further directed that after six months the said requisition would stand quashed. If the State Government intended to keep possession of the premises in question, the acquisition proceeding under the Land Acquisition Act should be initiated within the said period and if such acquisition proceeding is not initiated, possession was to be delivered to the petitioners. So far as the garden land, that is, the uncovered portion of the premises is concerned, the learned Judge quashed the requisition in respect of such portion inter alia on the finding that the said portion was not required for public purpose. It appears that the First Land Acquisition Collector, Calcutta passed an order of de-requisition of the garden land on 7th October, 1985 but possession of the garden land was ultimately not delivered. On 17th October, 1985 the State Government preferred an appeal against the said judgment of the learned trial Judge and such appeal was numbered as Appeal No. 508 of 1985 and the Court of appeal passed an ad interim order staying the operation of the order appealed from. After a contested hearing, the Court of Appeal made the ad interim order absolute on 18th November, 1985. As a result, the operation of the judgment appealed from was stayed till the disposal of the appeal. The Court of Appeal disposed of the said appeal No. 508 of 1985 by his judgment dated 12th December, 1985. The Court of appeal had observed that although the learned trial Judge had held that the vacant portion of the premises was not required for public purpose but the requirement of the vacant portion of the plot may have to be reviewed again in the event the authority would seek to acquire both the covered portion and the vacant land in an appropriate acquisition proceeding. It was held by the Court of appeal that from the records it was clear that the public purpose which the authority had in mind when it initially requisitioned the said premises was that the said premises should be used for the office and residential accommodation of a particular officer. In the event the said premises is sought to be acquired for the very same public purpose, the authority if challenged will have justify the purpose. The Appeal Court made it clear that the judgment of the Appeal Court should not stand in the way of the authority if they seek to justify the future acquisition for public purpose. The Appeal Court also made it clear that it will be equally open to the respondents, the owners of the property, to impugn the public purpose as may be advanced by the Authority if an acquisition proceeding is initiated. The order of the learned trial Judge was modified to the above extent. The State Government decided to acquire the said premises including the vacant land or the garden land as the State Government was of the view that the entire premises was essentially necessary for the office-cum-residence of the Deputy Commissioner of Police (Security Control). The owners of the land viz. the writ petitioners apprehending acquisition of the said premises including the garden land moved a writ petition before this Court on 25th April, 1986. On the said writ petition, a Rule 'Nisi' was issued and an interim order was passed restraining the State Government from serving the order of requisition in respect of the said premises. It appears that on 31st May, 1986, the order of requisition of the said premises including the garden land was issued under West Bengal Act II of 1948 but such order was not served because of the interim order passed on25th April, 1986. Later on the interim order was modified by granting leave to the State Government to serve the order of requisition dated 31st May, 1986 and such order of requisition was thereafter served on 1st August, 1986. On 2nd August, 1986 the petitioners reported to the Land Acquisition Collector for taking delivery of possession of the property in terms of the order of derequisition. But such possession was not delivered in view of the fact that subsequently a fresh order of requisition under Act II of 1948 was passed. On 4th August, 1986, a notification under S. 4(1 a) of the West Bengal Act II of 1948 was issued acquiring the disputed premises together with the vacant land and such notification was published in the Calcutta Gazette dated 16th August, 1986. The owners of the premises, namely, the petitioners in the writ proceeding, thereafter challenged the said order of requisition and consequential order of acquisition under S. 4(1a) of the West Bengal Act II of 1948.
3. As aforesaid, the learned trial Judge allowed the writ proceeding and quashed the order of acquisition.
4. The learned Advocate General appearing for the State-appellants has contended that the impugned order of requisition dated 31st May, 1986 under S.3(1)of Act II of 1948 is neither illegal nor ultra vires. It is contended that even if the Government is in possession of the property, the power of requisition can be validly exercised. It is also contended that pursuant to the order of the Court of appeal in "the earlier writ proceeding the property in question was acquired and admittedly the State Government through the department of police was in possession of the disputed premises including the vacant land. The Court of appeal noting the said fact gave liberty to pass appropriate order of acquisi-
tion for such property within a period of six months if the State Government would intend to acquire the same for its requirement. In the circumstances, it cannot be contended that when the Government was in possession of the property, the order of requisition cannot, be passed. Any contention that the property must be de-requisitioned first and formal possession is to be handed over and immediately thereafter formal possession is to be taken pursuant to an order of requisition to be followed by an order of acquisition. It is also contended that as a matter of fact an order of de-requisition was also made and within the period prescribed by the appellate Court the order of requisition was made but the said order could not be served because in anticipation of such service of order of requisition, the writ petitioners moved this Court and obtained an ad interim order. When such ad interim order was varied, the order of requisition was served and shortly thereafter the order of acquisition under Section 4(1a) of Act II of 1948 was passed. It has been strongly contended by the learned Advocate General that the Court of appeal has not indicated that the appellants will be entitled to acquire the said premises only under the Land Acquisition Act. It has only been indicated by the Court of Appeal that if the premises was required for public purpose by the State Government then appropriate proceedings for acquisition of the said land should be taken within a period of six months. It is contended by the learned Advocate General for the appellants that the requirement for the said premises for the purpose of security control department of the Police cannot but be held as requirement for a public purpose. It is contended that the nature of duties of the officials of Security Control is such that he is required to be present in the premises round the clock so as to tackle any emergency situation concerning maintenance of security. It is further contended that in view of secrecy involved in the operation of Security Control Department, it is essentially necessary that as far as practicable the premises should not be exposed to the neighbours and outsiders. The adjoining vacant land was therefore necessary to ensure secrecy inherently involved in the operation of the Security Control Department. It is also contended by the learned Advocate-General that for efficient discharge of the duties and function of the Deputy Commissioner (Security Control) it is necessary that the Deputy Commissioner should be available in his office round the clock. The official residence of the Deputy Commissioner has therefore been provided in the said office of the Security Control Department. Such accommodation, is essentially necessary for effective working of the Security Department of the Police. The acquisition of the said premises together with the vacant land or garden for the purpose of security control including the residential accommodation of the Deputy Commissioner of Police is, therefore, wholly justified and legal. The learned Advocate General has contended that from the very beginning the premises in question was intended to be acquired. Such acquisition may be made under the Land Acquisition Act or under Act II of 1948. If acquisition is permissible both under Act II of 1948 and under the Land Acquisition Act, the State Government will be justified in acquiring it under Act II of 1948, more so, when because of the time limit fixed by the Court of Appeal in the earlier writ proceeding, there was an urgent necessity to initiate acquisition proceeding within a period of six months. The learned Advocate-General has contended that the real intention of the acquiring authority was to requisition the premises, the order of requisition may be struck down because it was held in the earlier proceeding that the State Government really intended to use the premises for a long or permanent use and in such circumstances requisition of the premises the question was not permissible in law as enunciated by the Supreme Court. But in the facts of the case it can be clearly demonstrated that the State Government intended to acquire the same from the very beginning and for the purpose of acquisition under Act II of 1984, a requisition is to be made first, to be followed by an order of acquisition under S. 4(1a) of the said Act. If such a step has been taken by the State Government it cannot be contended that although there was a permanent purpose, the State Government illegally resorted to order of requisition and such order of requisition being illegal and void, the consequential order is also invalid and void. The learned Advocate-General has therefore contended that the impugned order of requisition and consequential order of acquisition must be held legal and valid in the facts of the case and the judgment appealed from should be set aside.
5. Mr. Ghosh, the learned counsel for the writ petitioners respondents has refuted the aforesaid contentions of the appellants. It has been contended on behalf of the respondents that the impugned order dated 31st May, 1986 under Section 3(1) of Act II of 1948 is ultra vires because (i) the power of requisition conferred by that section cannot be exercised if the Government is in possession of the property on the date of the order of requisition; and (ii) the real object of the impugned order is to continue the requisition of the property which had come to an end by reason of the judgment of this Court in the earlier writ proceeding. The purposes mentioned in Section 3(1) of Act II of 1948 do not include the purpose of continuing a requisition which has come to an end, nor does Section3(1) empowers the authority concerned to make an order of requisition for that purpose. Elaborating the aforesaid objections against the impugned order of requisition and the consequential order passed by the State Government it is contended by Mr. Ghosh, that the Government was in possession of the property on the date of the impugned order. Hence question of taking possession of the said property by virtue of the impugned order of requisition did not and could not arise. It is contended that requisition means taking over of possession of the property. It is contended that vital difference between the concept of requisition and acquisition has been explained in two Supreme Court decisions made in the case of Jiwani Kumar v. Land Acquisition Collector, Calcutta, and H. D. Vara v. State of Maharashtra, . It was held in the decision that the concepts of requisition and acquisition are different. In acquisition, the title passes to the acquiring authority but in requisition the title remains with the owner but possession goes to the requisitioning authority. One is the taking over of title and the other is taking over of possession. Similar view was also expressed in other decisions of the Supreme Court , and it was observed that concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership. Relying on the said decisions of the Supreme Court, it has been contended on behalf of the writ petitioner respondents that the essential characteristic of an order of requisition is that it is an order for taking over of possession of property. It is contended that one can only take over the property if such possession is with someone else. One cannot obviously take over possession from oneself. Such action would be a contradiction in terms. The learned counsel for the writ petitioners therefore contends that the power of requisition conferred by Section 3(1) of Act II of 1948 can be validly exercised only if the property sought to be requisitioned is not in the possession of the requisitioning authority on the date of the order of requisition. It has been contended that in the instant case the Government had been in possession of premises No. 4, Pretoria Street ever since 1943. On 31st May, 1986, when the impugned order of requisition under Act II of 1948 was passed the property was in possession of the Government and not with the writ petitioners. The Government, therefore, could not pass legally an order of requisition. The learned counsel for the writ petitioners has also contended that the impugned order of requisition and consequential order passed thereafter are mala fide and illegal because the real object of the impugned order is to subject the property to continuance of requisition which had come to an end by the judgment of this Court passed earlier in the writ proceeding. Section 3(1) of Act II of 1948 does not authorise to pass an order for continuing a requisition which had come to an end. In those cases where requisition of property under the Defence of India Rules had come to an end, a special legislation viz. The West Bengal Requisitioned Land (Continuance of Powers) Act, 1951 (Act VIII of 1951) was passed. By virtue of Section 3 of that Act, the property continued to be under requisition, notwithstanding that the requisition had come to an end. But in the present case, the said Act VIII of 1959 has no manner of application and there is also no special statute to continue the requisition after it had come to an end. The learned counsel for the writ petitioners has also contended that under Section 3(1) of the Act, an order of requisition can be made only for one of the purposes specified in that section. But such purposes do not include the purpose of continuing a requisition. Therefore, the impugned order was manifestly illegal and without jurisdiction and ultra vires of Section 3(1) of Act II of 1948. The writ petitioners have also contended that the impugned order of requisition and consequential order are mala fide because it was not passed on 31st May, 1986 but it was passed on 1st August, 1986. It is contended that the Government is deliberately trying to assert that the order was passed on 31st May, 1986 because that date was within six months from the date of the judgment of the Court of appeal. It is contended on behalf of the writ petitioners that this Court struck down the continuance of requisition of the premises on the ground that the continuance of requisition for a prolonged and indefinite period constitute an abuse of the power of requisition. This Court clearly pointed out that if the Government wanted to retain the property, the proper course was to commence acquisition proceedings in respect of the same within the time limited by this Court. In the aforesaid background, the impugned act of the Government in again passing an order of requisition in respect of the same property is mala fide on the face of it and such order has been passed with the object of rendering the judgment of this Court nugatory. It has also been contended by the writ petitioners that on merits also, the premises are not required for the office of the Security Control Organisation as stated in the impugned order. Such stand is a mere pretence. The real object is to retain the property for residence of Police Personnel. The learned counsel for the writ petitioners has submitted that the order of requisition dated 31st May, 1986 states that the premises are required for accommodating the office of the Security Control Organisation. It, however, transpires that the Security Control has its own office located at No. 237, Acharya Jagadish Chandra Bose Road, Calcutta which is a very large house having enough vacant land for extension works for construction of a building. It is contended by the writ petitioners that the Deputy Commissioner (Security Control) resides at 4 Pretoria Street and in a mala fide attempt to provide accommodation to the said Deputy Commissioner, it has been contended falsely that the premises in question are required for the office of the Security Control Organisation. It is also contended by the learned counsel of the writ petitioners that in the earlier writ proceeding, the learned trial Judge specifically held that the vacant portion of the premises viz. the garden land was not at all necessary for the said Security Control Department of the Government of West Bengal. Only with regard to the covered portion of the said premises, the learned trial Judge gave liberty to the State Government to acquire the said covered portion within six months if there was real need for such acquisition for the office of the Security Control Department. The Appeal Court has also upheld the finding of the learned trial Judge that continuance of requisition over a long stretch of time was illegal and not permissible in law as laid down by the Supreme Court in the decisions referred to hereinbefore. But the Appeal Court modified the judgment only to the extent that within six months from the date of disposal of the appeal the State Government will be entitled to acquire the said property under the Land Acquisition Act and the question whether the vacant portion was also required to be acquired for any alleged public purpose was kept open by the Appeal Court indicating that in the event the State Government would intend to acquire the vacant land if a challenge of such acquisition is made, the State Government would have to justify the necessity for such vacant land for the alleged public purpose. It is contended by the learned counsel for the writ petitioners that in the facts and circumstances of the case there cannot be any justification for requisitioning and/or acquiring the vacant land. It is also contended that when it is apparent that the requisitioning authority requires the premises for a long user or permanent user, order of requisition is illegal on the face of it and in spite of such action being held illegal by this court in earlier proceedings, the State Government chose to pass an invalid order of requisition. Mr. Ghosh has very strongly contended that the continuance of requisition of the said proceeding having been quashed by this court in the earlier writ proceeding since upheld by the court of appeal, no order of requisition could be passed at all even if it was intended to acquire the property at a later stage. The decision being binding inter partes, any order of requisition not merely amounts to contempt of court but is also illegal and void. In support of this contention, reference was made to the decision reported in 1982 (1) All England Reporter 211 (sic) and AIR 1978 (NOC) 210 (Cal). Mr. Ghosh has also contended that in the earlier writ proceeding, Mr. Justice 8. C. Basak having held that the continuance of requisition of the said premises was illegal had given liberty to the Government to acquire only the building portion under the Land Acquisition Act within six months from the date of his judgment if the Government would intend to acquire the building. This decision of Mr. Justice Basak has been upheld by the Court of Appeal with the only modification that the question as to whether or not vacant portion appertaining the said building was also needed for public purpose would have to be justified by the Government if in future such vacant portion would also be acquired. Such decision of the Court of Appeal was binding on the parties. Referring to the decision of the Supreme Court , Mr. Ghosh has contended that the right crystallised in the decision made in the earlier writ proceeding could not be touched or altered in any manner. Mr. Ghosh has contended that in the facts of the case any order of requisition of the premises was illegal and void. Any consequential order of acquisition on the basis of the said void order of requisition is also illegal and void. In any event, if the Government had intended to acquire the property, then pursuant to the liberty granted in the earlier writ proceeding, acquisition under the Land Acquisition Act within six months from the date of the judgment of the court of appeal could be made subject to justiciability of acquisition of vacant portion of the said premises. Admittedly no acquisition has been made under the Land Acquisition Act and even the order of requisition was not made within six months and only on 1st August, the order of requisition was made. Mr. Ghosh has contended that although the date 31st May was mentioned on the impugned order of requisition, such order cannot be held to be an order dated 31st May. The date when requisitioning authority had actually signed namely 1st August must be held to be the date of the order of requisition. Mr. Ghosh has, therefore, submitted that the order of requisition was illegal and void and no further action on such void order of requisition was possible. Hence, the purported order of acquisition on the basis of the said void order of requisition was also illegal and void. Mr. Ghosh has further contended that owner of the premises in question will suffer prejudice if the property is acquired not under the Land Acquisition Act but under Act II of 1948. The right to give objection under Section 5A of the Land Acquisition Act has been sought to be taken away by purporting to acquire under Act II of 1948 where no such hearing is contemplated. Moreover, if the property is acquired under Land Acquisition Act, then under Section 23(1a) of the Land Acquisition Act, in addition to market value of the land, an amount calculated at 12% per annum on the market value is to be awarded. But according to Section 7 of Act II of 1948, the owner only gets compensation under Section 23(1) of the Land Acquisition Act and not the additional sum provided in S. 23(la). Mr. Ghosh has submitted that the State has no unfettered choice as to which Act it can resort to for acquisition of the said property. User of power under one Act for a purpose which can also be achieved by another Act although the later Act is more advantageous to the person affected cannot be permitted. Referring to the decision of the Supreme Court in , Mr. Ghosh has contended that 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 concerned citizen, unless the repository of both the powers suffer from any unsurmountable disability, user of one which is less disadvantageous cannot be resorted to not on the ground that the Government has no power but on the ground that it will be misuse of the power in law. Mr. Ghosh has submitted that the impugned order of requisition purported to be followed by the impugned order of acquisition therefor are bound to fail. The appeal should, therefore, be dismissed with costs.
6. Mr. Advocate General, in reply to the submissions of Mr. Ghosh has contended that the order of requisition was made on 31st May and not on 1st August as contended. The original records including the order sheet of 31st May and the order of requisition have been produced by the learned Advocate General for perusal of the court and inspection of the same has also been given to the learned counsel for the respondents. It appears to us that the order of requisition was passed on 31st May but the same could not be served in view of the interim order obtained by the respondents from this court in a writ proceeding arising out of a petition to challenge the threatened injury on account of anticipated requisition of the property. Mr. Advocate General has submitted that the order of requisition was never intended to be an order of requisition simpliciter. For all intent and purpose, it was an intermediate step for acquisition under Act II of 1948. Therefore, the validity of the said order should not be considered on the perspective of an order of requisition. Mr. Advocate General has submitted that when acquisition is made under Act II of 1948, the compensation payable under the Land Acquisition Act has been made applicable and there is no just basis that there will be difference on the quantum of compensation because of the acquisition of the property under Act II of 1948. He has informed the Court that the Government had no intention to cause any disadvantage to the owners of the property by acquiring it under Act II of 1948 and undertakes to pay the same amount which the owner would have received by way of compensation, solatium interest etc. as would have been payable if the property would have acquired under the Land Acquisition Act, 1894. He has also submitted that as the Government was running against time because acquisition proceeding was to be initiated within six months from the date of the judgment of the Court of Appeal after completing necessary formalities for taking formal decision to acquire the property after reference to various departments and as it was essentially necessary to protect the possession of the premises by the department of security control before the acquisition proceeding is completed, recourse to Act II of 1948 had to be taken for acquiring the said property. The impugned order of requisition viewed in proper perspective must be held to be not an order of requisition simpliciter but an intermediate step for acquisition of the property. He has submitted that if in the facts of the case, the order of requisition is taken into consideration then there will be no illegality in passing the said order and by such order, the direction passed by the Court of Appeal in the earlier writ proceeding has not been violated in any manner. Mr. Advocate General has contended that the Court of Appeal in the earlier writ proceeding has not been violated in any manner. Mr. Advocate General has contended that the Court of Appeal had given liberty to acquire the property not under the Land Acquisition Act as directed by Mr. Justice Basak but under appropriate acquisition proceeding. He has submitted that the impugned order must be held valid by allowing this appeal.
7. After giving our anxious consideration to the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties it appears to us that the premises in question was utilised for the office of the Security Control of the Calcutta Police and also for the residence of the Deputy Commissioner of Police who is in charge of the said office. The said premises have been utilised for such purpose for a pretty long time. When the continuance of requisition of such premises was challenged in the earlier writ proceeding, the State Government contended that the entirety of the said premises was required for such office of the Security Control Department and also for accommodation of Deputy Commissioner of Police (Security Control) for effective discharge of his official duties and functions and for maintaining secrecy of the said Department. The learned trial Judge in the earlier proceeding held that the covered portion of the said premises may be required for the said Security Control Department, but the vacant portion of the said premises was not required. The learned trial Judge gave liberty to the State Government to acquire the covered portion under the Land Acquisition Act within six months. As the State Government felt that both the covered portion and also the vacant portion of the said premises were required for the said Security Control Department, the State Government preferred an appeal against the said decision of the learned trial Judge. It was contended by the State Government in such appeal that the entirety of the premises including the vacant land was required and the learned trial Judge should not have confined the power of the State Government for acquiring the covered portion only in an appropriate acquisition proceeding. It was only in this context, the Court of Appeal kept the question open as to whether or not both the covered area and also the vacant portion of the said premises were required for public purpose. It was clearly indicated by the Court of Appeal that if the State Government would not only intend to acquire the covered portion but also the vacant portion of the said premises, the State Government would have to justify the requirement of the vacant premises for public purpose if such acquisition of the vacant portion is challenged by the owners. In our view, the contention of the State appellants that the nature of duties of the Deputy Commissioner of Police in charge of the Security Department requires that the said Deputy Commissioner must be available round the clock because an emergency situation may arise at any moment is reasonable and should be accepted. In such circumstances, the requirement of the said premises both as an office of the Security Control Department and residence of the Deputy Commissioner of Police, Security Department cannot but be held as requirement for public purpose and the purpose for accommodation of the Deputy Commissioner of Police of the Security Control Department should not be isolated in the special facts of the case. We are also inclined to hold that the Security Control Department of the Police inherently requires maintenance of secrecy for effective administration of its functioning. It is only desirable that such office should, as far as practicable, be located in such a manner that proximity to other occupants in neighbouring areas is avoided so that there may not be occasion to keep watch or surveillance on the movements of personnel attached to such office. It is in this context, the State Government intends to acquire also the vacant land. We do not think such requirement in the special facts of the case is unreasonable to the main purpose for which the acquisition is intended. It however appears to us that if the vacant land to the extent of 15 feet at the back side of the covered portion of the building is acquired the purpose for which the building is intended to be acquired will be satisfied and the entirety of the vacant land and the back side of the said building is not necessary to be acquired. The order of acquisition of vacanl land at the back of the building beyond 15 ft, therefore cannot be held just and proper and the order of acquisition beyond 15 ft. of the vacant land at the back side of the building therefore stands annulled. It also appears to us that in the facts of this case that the State Government intended from the very beginning to acquire the premises for the said Security Control Department and for accommodating the in charge of the said department viz. the Deputy Commissioner of Police (Security Control). It was never intended by the State Government to requisition the premises temporarily for the sole purpose of requisition. It will not be correct to contend that the Government had intended initially to keep the premises in requisition but later on, it decided to acquire the said premises. Records of the Government Department also clearly demonstrate that the property was intended to be acquired for the said purpose and as the time for acquisition as specified by the Court of Appeal was running out and there was urgent necessity to maintain status quo as regards possession before acquisition proceeding is finalised under Act II of 1948, the order of requisition was made within six months only as a step in aid to pass consequential order of acquisition under Section 4(1a) of Act 1948. Looking to the relevant records of the case it does not appear to us that the order of requisition was not passed within a period of six months but such order was antidated. In our view, the learned Advocate General is justified in his submission that although Mr. Justice Basak gave liberty to acquire only the covered portion of the premises to acquire under the Land Acquisition Act, such order was modified by the Court of Appeal and liberty was given to acquire the entire property under appropriate acquisition proceeding and not only under the Land Acquisition Act, subject to the justici-ability of acquisition of vacant portion of the said premises in the event the vacant portion also would be acquired. We are also unable to accept the contention of Mr. Ghosh that since acquisition under Act II of 1948 was less disadvantageous, no acquisition could be made under Act II of 1948. If acquisition is made under Act II of 1948, the compensation as payable under Section 23 of the L. A. Act is also to be paid. Prima facie it appears that in case of acquisition under Act II of 1948, same quantum of compensation is payable. Even if there may be some difference in the total quantum payable in the event the property is acquired under Act II of 1948, instead of under L. A. Act, the learned Advocate General has informed the court that the Government had no intention to place the owner of the premises in a less advantageous position by resorting to acquire under Act II of 1948 and the Government has undertaken to pay difference, if any, in total quantum of compensation as would have been payable if the property was acquired under L. A. Act. It appears to us that the intention of the Government to acquire the property was made known even in the earlier writ proceeding. The Government never intended to requisition the property so that whenever possession was not required an order of derequisition would be made. The Court should not be oblivious of the fact that, though unfortunate, there is always a considerable time lag in the inter-departmental communications. Mr. Advocate General has submitted that for taking a formal decision to acquire the property reference to various departments through the hierarchy in each of such departments had to be made. As the time to acquire within six months was running out and there was pressing need to maintain status quo as regards possession, there was necessity to effect acquisition under Act II of 1948 and for that purpose as an intermediate step the order of requisition was passed. The Supreme Court in the decision has held that unless repository of both the powers suffer from any unsurmountable disability user of one which is less advantageous to the person to be affected should not be made. In the special facts of the case, it appears to us that the Government was facing an unsurmountable disability caused due to procedural time lag to resort to Land Acquisition Act for the intended acquisition because of the outer limit of six months fixed by the court for the intended acquisition. Hence, acquisition was sought to be made through the processes under Act II of 1948 without intending to cause any disadvantage to the person affected and a dear undertaking through the Advocate General of the State that any difference in the quantum of compensation as may be payable in case of acquisition under L. A. Act should be paid by the Government has been given to the court. In the facts and circumstances of the case, it does not appear to us that requisition of the premises for the sake of requisition was made so that such requisition being an order of requisition simpliciter will fail for the grounds indicated by Mr. Ghosh. We, therefore, allow this appeal and set aside the judgment appealed from to the extent indicated above. Let all consequential steps in connection with the acquisition of the said premises be taken without any further delay.
There will be no order as to costs in this appeal.
9. Appeal allowed.