Collector Of Kamrup And Others vs Kamakhya Ram Barooah And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 412-414 of 1962

Decision Date: 11 September 1964

Coram: J.C. Shah, P.B. Gajendragadkar

In the matter titled Collector of Kamrup and Others versus Kamakhya Ram Barooah and Others, the Supreme Court of India rendered its judgment on 11 September 1964. The opinion was authored by Justice J.C. Shah, and the bench comprised Justice J.C. Shah and Chief Justice P.B. Gajendragadkar. The petition was filed by the Collector of Kamrup together with other respondents, while the opposing party consisted of Kamakhya Ram Barooah and additional respondents. The case is reported in 1965 AIR 1301 and 1965 SCR (1) 265. The statutory framework under consideration was the Assam Land (Requisition and Acquisition) Act, 1948 (Assam 25 of 1948), particularly sections 3, 4 and 11, which delineate the scope of requisition and acquisition powers. The factual backdrop, as summarised in the headnote, involved the exercise of rule 75‑A of the Defence of India Rules, 1939, whereby the Government of India, in 1943, requisitioned the respondents’ land and the building situated there for defence purposes. While that requisition order remained in force, the Collector of Kamrup issued an order on 9 February 1949 acquiring the land and building under section 4 of the Assam Act. Later it was recognised that section 4 could be invoked only when a requisition order under section 3 existed; consequently, the Collector attempted to correct the defect by issuing a requisition order dated 4 August 1949, back‑dated to 7 February 1949, i.e., prior to the acquisition order. The respondents sought a reference under section 8 of the Act, and both the Subordinate Judge and, on appeal, the Assam High Court declared the acquisition order invalid. On further appeal to this Court, it was contended that, despite the procedural irregularity, the acquisition order was saved by section 11 of the Act, which purported to protect any order made in the exercise of power conferred by or under the Act. The Court held that the power under section 4 is expressly conditional upon an existing requisition under section 3; lacking a valid requisition, the acquisition could not be said to be made in exercise of the statutory power, and therefore section 11 did not bar the objection to the acquisition’s validity.

The appeals, numbered 412 to 414 of 1962, were filed against a judgment of the Assam High Court dated 10 February 1958, which itself arose from original decrees numbered 10 to 21 of 1953. Counsel for the petitioners in appeals 1 and 2 were described as representing the appellants, while counsel for appeal 3 represented the third appellant; counsel for the respondents represented the respondents in all three appeals. The Court’s opinion was delivered by Justice Shah. All three appeals presented a common legal question concerning the validity of acquisition proceedings initiated by the Collector of Kamrup, State of Assam, under section 4 of the Assam Land (Requisition and Acquisition) Act, 1948. To elucidate the issue, the Court recounted the facts relevant to appeal No. 412 of 1962. The respondents in that appeal owned a plot of land situated at Bharalumukh in Gauhati, on which a residential building stood. The Court proceeded to examine whether the acquisition order, issued without a preceding effective requisition order as required by section 3, could be sustained, and ultimately affirmed that the acquisition was ultra vires the statutory provisions, rendering the order invalid.

The Government of India, relying on the authority granted by Rule 75‑A of the Defence of India Rules, 1939, issued a requisition in 1943 that seized both a plot of land and the residential building situated there for the use of the defence forces. From the moment of that requisition, the land and the building remained under the possession of the Government of India. Subsequently, the Collector of Kamrup issued an order dated 9 February 1949 purporting to acquire the land and building by invoking the powers conferred under section 4 of the Assam (Requisition and Acquisition) Act, 1948, even though the earlier requisition order by the Government of India was still in effect. Later, by an order dated 4 August 1949, the Collector exercised the power under section 3 of the same Assam Act to requisition the land, declaring that the requisition would be retroactively effective from 7 February 1949. Following this, the Collector determined the amount of compensation payable to the owners under section 7 of the Act. The owners then sought a reference to the Civil Court under section 8 of the Act and, at the same time, contested the Collector’s authority to acquire the property in the manner he had applied. The Subordinate Judge of Gauhati, to whom the reference was made, concluded that no valid acquisition of the land and building had occurred, although he nonetheless calculated the compensation that would be due to the owners if the acquisition had been valid. On appeal, the High Court of Assam upheld the Subordinate Judge’s finding that the acquisition was invalid. The State of Assam consequently filed the present appeal, having obtained a certificate of appeal from the High Court. It is important to note that the acquisition in question was not pursued under the Land Acquisition Act of 1894 but under the provisions of the Assam Land (Requisition and Acquisition) Act, 1948. The preamble to that Act declares its purpose to provide for the requisition and rapid acquisition of land for certain purposes. Section 3 of the Act empowers the Provincial Government, or any person authorized by it, to issue a written order requisitioning land when, in its opinion, such requisition is necessary for maintaining supplies and services essential to community life, or for ensuring adequate facilities for accommodation, transport, communication, irrigation, or drainage, and to make any further orders deemed necessary or expedient in connection with the requisition. Section 4, sub‑section (1), states that where land has been requisitioned under section 3, the Provincial Government may deal with it as it deems expedient and may acquire the land by publishing a notice in the Official Gazette indicating its decision to acquire the land pursuant to that section. Sub‑section (2) provides that once such a notice is published in the Official Gazette, the requisitioned land and premises shall, from the beginning of the day on which the notice appears, vest absolutely in the Provincial Government free from all encumbrances, and the period of requisition of such land shall end.

In this case, the Court explained that once a notice of acquisition is published in the Official Gazette, the land in question vests absolutely in the Provincial Government from the beginning of that day, free of all encumbrances, and the period of requisition of the land terminates at that moment. The Court observed that the authority to acquire land under section 4 may be exercised only where the land has first been requisitioned under section 3; the statute does not permit acquisition in any other circumstance. The factual backdrop was that an initial order to acquire the land had been issued, but because the order was later recognised as defective and irregular, the authorities attempted to correct the flaw by issuing a subsequent order dated 4 August 1949, which purported to requisition the land retroactively from 7 February 1949. The Court held that this manoeuvre could not validate an illegal acquisition order. The Court further noted that at the time the acquisition order under section 4 was made, the land was indeed under requisition for use by the defence forces; however, that requisition had been effected not under section 3 of the Assam Act but under Rule 75‑A of the Defence of India Rules, 1939. Consequently, the prior requisition under the Defence of India Rules did not give the Provincial Government of Assam any authority to acquire the respondents’ land under section 4 of the Act. Counsel for the respondents argued that section 11 of the Assam Act, which states that no decision or order made in exercise of any power conferred by the Act shall be questioned in any Court unless expressly provided otherwise, saved the acquisition order despite its alleged illegality. The Court rejected that contention, observing that the acquisition order under section 4 could not be said to have been made in the exercise of a power conferred by the Act because section 4 expressly requires that the land be under requisition pursuant to section 3, and no such effective requisition existed. Accordingly, section 11 did not bar the challenge to the acquisition. The Court therefore concurred with the High Court’s finding that the acquisition was illegal, dismissed the appeals, and ordered that the appellants pay costs.