Holding

The requisition order is upheld, but the Government must acquire the premises under Section 49(1) of the Land Acquisition Act within three years; continued requisition without acquisition is improper.

Summary

The petitioner, a lessee of premises in Calcutta, challenged the State’s continued requisition of part of his building under the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947, which had been renewed repeatedly since 1958 for a government showroom. He argued that the Act could not become permanent, that a requisition lasting over 25 years amounted to indirect acquisition violating Articles 14 and 19(1)(g) of the Constitution, and that the State should have acquired the property under the Land Acquisition Act. The Supreme Court distinguished requisition (temporary possession) from acquisition (transfer of title) and held that while a requisition can be made for a permanent purpose, persisting with it indefinitely when acquisition is possible constitutes an abuse of power. However, the Court found no material showing bad faith merely from the lapse of time, so it upheld the requisition order but directed the Government to acquire the premises under Section 49(1) of the Land Acquisition Act within three years, or seek further directions. The petition for derequisition was therefore dismissed.

Issues considered

Can the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 be applied for a permanent purpose and be renewed indefinitely?
Does a requisition that continues for more than 25 years amount to indirect acquisition under the Land Acquisition Act, 1894?
Does the State’s reliance on requisition instead of acquisition violate Articles 14 and 19(1)(g) of the Constitution?
Is the requisition order valid and subject to derequisition under Article 32?
Does Section 49(1) of the Land Acquisition Act permit acquisition of a part of a building?

Legislation cited

Constitution of Indias. 14, s. 19(1)(g), s. 31, s. 32
Land Acquisition Act, 1894s. 49(1)
West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947

Subjects

requisitionacquisitionindirect acquisitiontemporary provision actland acquisitionArticle 32public purposecolorable exercise of powercompensationleaseWest Bengal

Judgment

6S6

A
JIWANI DEVI PARAKI

v.

FIRST LAND ACQUISITION COLLECTOR, CALCUTTA
B
AND ORS.
30th August, 1984
[V.D. TULZAPURKAR, R.S. PATHAK AND SABYASACHI MUKHARH, JJ.]

West Bengal Premises Requisition and Control (Temporary Provision) Act
c 1947-Whether the State Government's requistion of the building under the 1947
Act for indifinite periods by renewing the said temporary A.ct itself amounts to
indirect acfuisition of property under the Land Acquisit/on A.ct and hence the
exercise of power under the 1947 Act is improper and nmlajide-West Bengal
Lttnd Acquisition Act, Section 49 (!).

The petitioner is the lessee of the premises No. 7/IA-D, Lindsay Street,
D Calcutta which is situated in an important comn1ercial locality of Calcutta. •
ThC ,round floor and n1ezzanine floor of the said premise5 were requisitioned by
Government for establishin& n1ain Sales Show room of respondent No. 4,
namely west Bengal Handicrafts and Development Corporation Ltd., by an
order of requisition No. 21 /58-Reqn. dated 25.2.1958 under the West Bengal
Premises Requisition and Control (Temporary Provision) Act 1947. Though
this Act itself is a temporary Act, this has been renewed from tin1e to time,
E the last one renewing it upto 31st March, 1985.

Aggrieved by the piece-meal extension of the 1947 Act and the requ1s1uon-
ing of his premise5 since 1985, the petitioner challenged 1he same by a petition
under Article 32 of the Constitution and contended that (a) the West Bengal
prcn1ises Requisition Control (Temporary Provision) Act 1947 cannot be conver·
ted into permanent Act and tht"refore requisition of his premises cannot be a
•
F permanent requisition ; (b) Requistioning the property in this manner for more
than 25 years amounts to indirect acquisition of the p_ropcrty and is a fraud
upon the power ;and (c) It violates both Articles 14 and 19 (1) (g) or the Cons-
titution, since the petitioner who himself requires the pre1niscs for his own busi-
ne5s is prevented from usin~.
• !
Disposin& of the petition, the Court
I
..
G
HELD : 1. There arc significant differences bet·.veen 'requisition' and
•
'acquisition'., Normally the expression ;requisition is taking possession of the
property for a limited period in contradistinction to acqllisition. This popular
meaning has to be kept in mind in judging whether in a particular case there has
been in fact any abuse of the power. The distinction between 'requisition' and •
'acquisition' is also evident from Entry 42 in List UI of the Seventh Schedule,
Oriainal Article 31 clause (2) of the Constitution recongnised the distinction
H betwen compulsory acquisition and requisition of the property. The two
J.D. PARAKrv. LAND ACQUISITION COLLECTOJ. 687
concept5 are different ; in one title passes to the acquiring authority, in the
other title remains with the owner, the possession goes to the requiring autho- A
rity. One is the taking over of the title and the other is the taking over. of the
possession. Thus the orders of requisition and acquisition have different con-
sequences and affect the owners concerned in different manners. But the State
has the power both of requisition as well as acquisition, subject to one condition
that is the property acquired or requisitioned must be for public purpose ;
Mangilal Karwa v. State of Madhya Pradesh, AIR 1955 Nagpur p. 153 at p. 157
approved, Chiranjit Lal Chowdhury v. The Union of India and Others [1950] I 8
SCR p, 869 referred to. [695H; G; 696A-B]

2. Under Section 49 (I) of the Land Acquisition Act, 1942 as amended
by the West Bengal Act 32 of 1955, even a part of the building or a house can
be acquired provided the conditions mentioned and the procedure specified
therein are followed and there is no absolute bar to the acquisition of a part of
a house or a building. [697FI c
' 3 : I It will not be correct to say that in no case can an order of requisi·
tion for permanent purpose be made but in a situation where the purpose of
requisitioning the property is of a permanent character and where the Govern-
.. ment has also the power and the opportunity to acquire the property or a part
thereof especially upon the fulfilment of the conditions of section 49 (1) of the
Land Acquisition Act (as amended by the West Bengal Act) to the extent D
applicable, if the Government chooses not to exercise that power nor attempts
to exercise that power to achieve its purpose, than that will be bad not because
the Government would be acting without power of requisition but the Govern·
ment might be acting in a bad faith. In other words, if there is power to
acquire as also the power of requisition and the purpose is of permanent nature
by having the property or a part thereof for the Government then in such case
to keep the property under requisition permanently might be an abuse of the E
power and a colourable excercise of the power not because the Government
Jacks the power of requisition but because the Government does not use the
I other power of acquistion which will protect the rights and interests of the par..
ties better. [697H ; 698A-C]

3 : 2 Where one is r~pository of two powers that is power of requisition "as
we11 as power of acquisition .qua the' same property and if the purpose can equ· F
ally be served by one which causes lesser inconvenience and damage to the
citizen concerned unless the repository of both the powers suffers from any
insurmountable disability, user of one which is disadvantageons to the citizen
without exploring the use of the other would be bad not on the ground that the
Government has no power but on the ground that it will be a misuse of the
power in law. [6980-B]
G
3 : 3 In the instant case, it is indisputably true that (a) The purpose of
requisition is a public purpose ; and (b) That the only part of the building
namely one room has been requisitioned for the show room but the premises
• in question has remained under requisition for over 25 years and 1he purpose of
having the premises in question is of a permanent and perennial nature. But
that by itself without anything more would not enable the court to draw H
688 SUPREME COURT REPORTS [1985] I s.c.R.

the inference that the exercise of the power was bad initially nor, would
A
be continuance of the requisition became maiafide or colourable by mere
lapse of time. In order to draw such an inference some more material
ought to have been placed before the Court. In the. circumstances the
continuance of the requisitioning of the premise~ in qu1~stion must be permit-
ted subject to fulfilment of the conditions mentioned. [698H-F)

B
ORIGINAL JURISDICTION : Writ Petition No. 11222 of 1983.

(Under article 32 of the Constitution of India)

C Soli J. Sorabjee, Gopal Subramanyam, L. P. Agarwala, R. P.
Singh, N. P. Agarwala and V. Shekher for the Petitioner.

F. S. Nariman, Rathin Das for Respondent Nos. I & 2.

S. N. Kacker, D. K. Sinha and J. R. Das for Respondent No. 3.
D
The Judgment of the Court was delivered by •
SABYASACHI MUKHARJI, J. This is an application under article
32 of the Constitution oflndia. Notice was issued and the respon-
dents have filed counters and have made submis:sions on the applica-
tion. The petitioner is the lessee of the premiies No. 7/1 A-D •
Lindsay street, Calcutta which is situated in an iniportant conimercial
E
locality of Calcutta. The ground floor and mezzanine floor of
premises No. 7/1-D, Lindsay Street, Calcutta were requisitioned by
Government of West Bengal by order of requisition No. 21/58
Reqn. dated 25th February, 1958 which was substituted by requisi-
tion order No. 123/60 Reqn. dated 10th November, 1960 is9Ued
•
under the West Bengal Premises Requjsition and Control (Temporary
F Provision) Act, 1947, hereinafter called the said Act for establishing
main Sales showroom of respondent No. 4 herein which is the West
Bengal Handicraft and development Corporation Limited (a West
Bengal Government undertaking).

G
The area under requisition is 2521 sq. ft on ground floor and
\677 sq. ft. on mezzanine floor aggregating to 4198 sq. ft. The rent
.
compensation payable under the said Act was fixed by the Land
Acquisition Collector, Calcutta on or about 3 lst March, 1959 at
Rs. !, 450-per month inclusive of taxes and repairs with effect
from 10th June, 1958 which was ultimately modified to Rs. 2,500-
per month by the High Court of Calcutta. It is alleged on behalf
J.D. PARAKI v. LAND ACQUISITION COLLECTOR (S. Mukharji, J.) 689

of the petitioner· that in fixing the monthly compensation for
acquisition by Land Acquisition Collector, the High Court in appeal A
took into consideration the rate prevailling in the year 1958, being
the year in which the requisition took place. A showroom of
respondent No. 4 has been set up there.

The contention of the petitioner is that from the very beginn- B
ing the State Government had the intention of keeping the said
requisitioned premises permanently. The petitioner contends that
the State Government had ample power to acquire the said property
under the Land Acquisition Act at the time of issue of order of
requisition. In spite of power to acquire the premises in question,
tlle State Government resorted to requisition the same with the c
intention of permanently acquiring property in an indirect manner
thereby the State Government has acted in improper exercise of
powers and authority and has not exercised the power bonafide,
alleges the petitioner.
•
The petitioner further alleges that the object is clearly to avoid D
the obligation to pay reasonable compensation for acquisition and
instead thereof. continue occupying the area by paying nominal
monthly rent as compensation. Therefore, according to the peti-
• tioner, the order of requisition bas been passed for extraneous
purpose and is arbitrary and malafide. The petitioner also alleges
E
that. according to the present letting value prevailing in the merket,
the value would be over Rs. 43,668-approximately per month.
We are, however, in this application not concerned }Vith that con-
troversy. The petitioner has submitted that requisition can be for
temporary period and for a temporary purpose, and the State
Government under the garb of requisition has really acquired the F
property and has avoided the obligation to pay compensation for
• acquiring the property which will be over Rs. 29 lakhs.
According to the petitioner, the West Bengal Act of 1947
which was intended to remain in force for a short temporary period
does not contain any provision for revision of rent. The said Act G
came into force on or about 1st January 1948. The said Act contains ·
no provision for acquisition of any property but deals solely with
requisition of property for making temporary provision. The said
• Act by various Acts has been renewed from time to time, the last
of such renewal as per averments has been extended upto 31st
March, 1985. It is further the case of the petitioner that tlie said H
690 SUPREME COURT R!PORTS (1985] 1 S.C.R.

A Act cannot be converted into a permanent Act and there cannot
be a permanent requisition.

According to the petitioner, by this process the property in
question has been kept under requisition for 25 years. This, it was
submitted, is a fraud upon the power. According to the petitioner,
B the State Government had the option of acquisitioning the property.
The State Government had also full knowledge that the possession
of the said area was required for a permanent purpose or at least
for an indefinite period i.e. for setting up a show-room and in spite
of the same did not choose to acquire the property but arbitrarily
issued the order of requisition under the said Act. Petitioner states
G that he requires the premises in question to carry on his own busi-
ness and the said right is being interfered with and therefore
infringes upon petitimier's fundamental right. The petitioner con-
tend~ that it violates both article 14 and article 19 (1) (g) of the
Constitution. There are various allegations about damages being
done to the premises in question. We are not concerned in this
D application with the said allegations.

The petitioner prays for an order of derequisition of the
premises.

E On behalf of the respondents, the main 'contention is that the
said Act has been renewed from time to time and there is no limita-
tion to the power of requisition except that the same must be for
public purpose. According to the respondents, the purpose in this
case is indubitably a public purpose and that public purpose remains.
The repond en ts contend that there is no limitation on the exercise
F
of that power.

On behalf of the applicant, reliance was placed on the decision
of this Court in H. D. Vora v. State of Maharashtra and Ors. (Civil
Appeal No. 1212 of 1984)-judgment delivered by my learned
G brother Bhagwati to which I was a party. There the question as
was posed by Bhagwati, J. was whether an order of requisition of
premises can be continued for an indefinite period of time or it
must necessarily be of temporary duration. The case discussed the
other contention and repelled the attack on th1: order of requisition •
on the ground that the order of requisition did not set out the
H public purpose for which it was made. It was noted by us in the
i.D. PAR.AKI T. LAND ACQtllSiTION COLLECTOR (S. Mukharji, J.) 691

decision of H. D. Vora that the High Court had held that no material A
was placed before it to show what was the public purpose for which
the order of requisition was made and in fact there was no denial
on the part of the state government or the appellant of the averment
made on behalf of the third respondent that the appellant in that
case was neither a government servant nor a homeless person for
whom the order of requisition was purported to have been made. B
• We found that the view taken by the Hii:h Court was well-founded
and it was not possible to hold on the material before us that the
order of requisition was made for public purpose. On behalf of the
appellant, however it was contended that the order of requisition
in that case was challenged after a lapse of over 30 years and as
such that challenge was liable to be dismissed but this Court in
Vora's case relied on another ground namely, that an order of
requisition was by its very nature temporary in character and could D
not endure for an indefinite period of time in the facts of that case,
and the order of requisition in that case therefore ceased to be valid
and effective after the expiration of a reasonable period of time and
that it could not, under any circumstance, continue for a period o
over 30 years. Brother Bhagwati noted the difference recognised
by law between "requisition" and "acquisition" and it was further
stressed that where aquisition under Land Acquisition Act, 1894 E
was possible, the Government under guise of requisition could not
coutinue to use the property under requisition for an indefinite period
of time thereby in substance acquiring the property because that
would be misuse by the Government of its powers. It was observed
in that case that if the government wanted to take over the property F
for an indefinite period of time, the government should acquire the
property but it could nor use the power of requisition for achieving
that object. In those circumstances it was observed that the power
of requisition was exerciseable by the government only for a public
purpose which was of transitory character, if the public purpose for
which the premises were required was a perennial one or of perma-
nent character from the very inception, no order could be passed G
requisitioning the premises and in such a case the order of requisi-
tion if passed would be fraud upon the statute, for the government
would be requisitioning the property when really speaking it wanted
the property for acquisition, the object of taking the property being
not transitory but permanent and in such circumstances it was held
• that an order of requisition for a period of such a long time as 30
years as it had happened in that case made the order of requisition H
692 SUPREME couilT REP ORTS [1985) 1 S.C.R·

bad. Relying mainly on the aforesaid basis and the facts alleged
A in this case, on behalf of the petitioner it was urged before us that
the order of requisition was bad and arbitrary.

On behalf of the respondents, however, attention was drawn to
a decision of this Court in the case of Collector of Ako/a and ors. v.
Ramachndra & Ors.(1) a decision of a Bench of three learned judges,
B
There, the land owned by the respondents was requisitioned under the
Bombay Land Requisition Act for a public purpose viz,, for establi-
shing a new village site to resettle victims of flood. The respondents
filed a writ petition in the High Court challenging the validity one
extended until the!l upto 1963, the power to requisition thereunder
c would be with the government only during the time that it subsisted:
so an order passed for a permanent purpose could not be in the
contemplation of the Act. The High Court accepted the objection
and quashed the order. It was held by this Court in appeal that the
power of requisition under the Act could be exercised whether the

D
public purpose was temporary or not and the exercise of that power
for the purpose of rehabilitation of flood sufferers was neither in
..
abuse of the power nor unjustified under the Act. The words "for
any public purpose" in Section 2(1) were wide enough to include
any purpose of whatever nature and did not contain any restriction
regarding the nature of that purpose. It placed no limitation
on the competent authority as to what kiind of public purpose
E
should be for the valid exercise of its power nor did it confine the
exercise of that power to a purpose which was of temporary nature.
The Court observed that there was no antith·osis between the power
to requisition and the power of compulsory acquisition under Land
Acquisition Act. Neither of the two Acts contained any provisions
F under which it could be said that if one was acted upon, the other
could not be.

In that case the facts were that the government made an order
•
of requisition under temporary Act for rdrnbilitating the flood
victims and also initiated proceedings under the Land Acquisition
G Act 1of1894 in respect of tl10se very lands and issued a notification
under Section 4 thereof. lt was contended that the action of the
government was bad.

The only question which was argued in that case was whether
an order of requisition could be made for a permanent purpose. •
H (I) [19681] S.C.R. 401
1.1>. i'ARAKI "· LAND ACQUISI1'ION COLLECTOR(S. Mukharji, J.) 693

The order of requisition in that case was challenged on the ground A
that the purpose for which the order of requisition was made, namely
rehabilitation of flood affected victims, was a permanent purpose
and the order of requisition was therefore bad from its inception,
since an order of requisition could be made only for a temporary
purpose. The argument of the petitioner who challenged the order of B
requisition was, inter a/ia, that the competent authority ·had no
power to invoke the Land Requisition Act inasmuch as the purpose
for which it was exercised was of a permanent character. This
argument appealed to the High Court and the High Court held that
the order of requisition was "unjustified under the Bombay Land G
Requisition Act". It was only this argument which was considered
by this Court and this is how this Court formulated in that case the
question for its decision: "The only question arising in this appeal
thus is whether the Act authorises an order of requisitioning even if
the purpose for which it is made is not a temporary purpose ?" This
C~urt held that the only restriction imposed by the statute on the D
power of requisition conferred on the State Government was that
this power could be exercised "only for a purpose which is a public
purpose" and "on the face of it the sub-section does not contain any
express limitation to the power to requisition, the only limitation
being that an order thereunder can be passed for a public purpose
• only" and there is no implied limitation "that the requisitioning
· authority has no power thereunder to pass an order where the pur-
pose is not temporary". This Court said that the premises requisi-
tioned "may be used for a temporary purpose or for a purpose
which is not temporary in nature", and added that the power of
'
requisition is not" restricted to a temporary purpose only". No F
question was raised before this Court in that case as to whether an
order of requisition can continue for an indefinite duration. The
argument before this Court in H. D. Vora's case was not that the
order of requisition was initially bad, when made, on the ground
that it was for a purpose which was a permanent purpose. It fact, no
one contended that the purpose of housing homeless person was not G
a temporary purpose but a permanent purpose and therefore the order
of requisition was bad. The principal argument advanced was that
though the order of requisition was good when made, it ceased to be
valid and effective, because it could not legitimately be continued for
an indefinite length of time. The order of requisition in that case had
• been allowed to continue for a period of almost 30 years and that is
why this Court said that the order of requisition had ceased to be
694 SUPREME COURT REPORTS (198)] [ S.C.R.

A valid and effective and the premises must therefore be derequisi-
tioned. It is no doubt true that some observations have been made
in the judgment in that case with regard to the permanent or
temporary character of the purpose for which an order of requisition
could be made and to that extent what is said in that judgment may
B have to be slightly modified, but the principal decisi0n in that case
was that an order of requisition is by its very nature temporary in
character and cannot be allowed to continue for an indefinite length
of time, because then it would tantamount to an order of acquisition
and would amount to a fraud on the exercise of the power of
requisition, especially where there is no impeiment in making the
c acquisition and no effort was made to acquire, must be regarded as
a correct enunciation of the law which does not in any way conflict
with what was laid down in the case of Collector of Ako/av. Rama-
chandra (supra). The latter decision merely laid down that an order
of requisition can be made for a permanent purpose while the for
mer dealt with a totally different question, namely, whether, what- .,.,
D ever be the character of the purpose for which an order of requisi ·
tion was made, the question was, could the order of requisition be
continued for an indefinite length of time and it was held that the
order of requisition would cease to be valid and effective after the
expiration of a reasonable period of time, even if it was valid when
made, and what, in the circumstances of a given case would be a •
E reasonable peroid of time would depend on the facts and circums-
tances of the case. There is therefore no contradiction between
the decision in Collector of Ako/a v. Ramachandra and the
latter decision in H.D. Vora's case.

It may not be inappropriate to note that there are significant
differences between 'requisition' and 'acquisition'. These have
different legal consequences and these affect the owners concerned
in different manners. But the State has the power both of requisi-
"
tion as well as acquisition, subject to one condition, i.e., the pro-
perty acquired or requisitioned must be for public purpose. In the
G "Words and Phrases Judicially Defined" by Roland Burrows K.C.
Vol. 4 at p. 562, it was observed that the word 'requisition' was not
a term of art and does not cannot the same state of things in every
particular case.
•
In the Fourth Edition of Stroud's Judicial Dictionary at page
11 2355, it has been mentioned that 'requisition' is as follows :-
U>. PARAKI v. LAND ACQUISITION COLLECTOR (S. Mukharji, J.) 695

" 'Requisitioning' is not a term of art and has different A
meanings. Its usual meaning is nothing more than hiring
without taking the property out of the owner although
the owner has no alternative whether he will accept the
proposition of hiring or not. It may, however, involve the
taking over of the actual domination of a chattel (The Steaua
Romana (1944) P.43). 8
'
"Requisitioned house" ; "requisitioned land" Stat.
Def., Requistioned Houses and Housing (Amendment) Act
1955 (c.24), s. 18 (l).'"

In the case of Mangilal Kanra v. State of Madhya Pradesh,(1) it
c
was observed as follows :-

"If the term 'requisition' has acquired any technical

. meaning during the two World Wars it bas been used in
for the sense of taking possession of property for the purpose ')
of the State or for such purposes as may be specified in the
statute authorizing a public servant to take possession of
private property for a specified purpose for a limited period
in contradistinction to acquisition of property by which
title to the property gets transferred from the individual
to the State or to a public body for whose benefit the pro-
perty is acquired. In 'requisition' the property dealt with
is not acquired by the State but is taken out of the control
of the owner for the time being for certain specified pur-
poses. Even for this limited purpose, however, the owner
becomes entitled to compensation, because 'requisition' of
the property amounts at least to a temporary deprivation p
of the property."

Thus, norm~lly the expression 'requisition' is taking possession
of the property for a limited period in contradistinction to 'acquisi-
tion'. This popular meaning bas to be kept in mind in judging
G
whether in a particular case, there has been in fact any abuse of
the power.

Orders of requisition and acquisition have different consequences.
• These have been noted by this Court.in the observations of Mukherjea,

(I) A.I.R. 1955 Nagpur p. 153 at p. 157.
696 SUPREME COURT REPORTS [1985] l s.c.tt.

A
J. in the decision in the case in Chiranjit Lal Chowdhury v. The Union
of India and Othersl1) and the distinction between 'requisition' and
'acquisition' is also evident from Entry 42 in List Ill of the Seventh
Schedule. Original Article 31 clause (2) of the Constitution
recognised the distinction between 'compulsory acquisition' and
B
'requisition' of the property. The two concepts are different : in
one title passes to the acquiring authority, in th·~ other title remains
•
with the owner, the possession goes to the requiring authority. One
is the taking over of the title and the other is the taking over of the
possession.

o- It was further contended on behalf of tile respondents that
part of the premises i.e. one room as in the instant case before us,
cannot be acquired. Therefore the ratio of the decision in the case
of H. D. Vora would not be applicable because there was no power
to acquire the premises in question. Secondly, it was urged that
the petitioner in the instant case was not the owner of the property
c at all and the question of acquisition of the requisitioned premises
does not arise at all. It was, thirdly, contended that it was not
possible in the facts and circumstances of the case to get any other
alternative accommodation for the showroom of the State Handi-
craft and Development Corporation which indisputably is a pubiic
purpos~. It was emphasised that the West Bengal Premises Requisi-
E
tion and Control (Temporary Provision) Act, 1947 does not contain
any power to acquire the premises in question.

The main thrust of the argument was that section 49 (I) of the •
Land Acquisition Act, 1894 provides :
F "The provisions of this Act shall not be put in force
for the purpose of acquiring a part only of any house, manu-
factory or other buildiDg, if the owner desire that the '
whole of such house, manufactory or buildjng shall be so
acquired."

G In other words it was urged that this provision ·almost prevents the
acquisition of a part of a house or building.

It may be pointed out that section 49 (1) of the Act has been
Emended so far as West Bengal fa concerned by the §West Benga •
H (I) 1950 I $.C.R. p. 869.
J.D. PARA.KI v. LAND ACQUiSITION COLLECTOR (S. Mukharji, J.) 691

Act 32 of 1955 with effect from 20.10.1955 and the amended A
section 49 (I) so far as Calcutta is concerned runs thus :

"Section 49 (I) : The provisions of this Act shall not
be put in force for the purpose of acquiring the part only
of any house, mnaufactory or other building, if the acquisi-
tion of the part will render the full and unimpaired use of B
• the remaining portion of the house, manufactory or
building impracticable.

Provided that, if any question shall arise as to whether
the part proposed to he acquired will render the full and
unimpaired use of the remaining portion of the house,
c
manufactory or building impracticable, the Collector shall
refer the determination of such question to the court and
shall not take possession of such part until after the ques-
tion has been determined.
D
Jn deciding on such a reference the Court shall have
regard only to the question whether the land proposed to be
taken is reasonably required for the full and unimpaired use
of the remaining portion of the house, manufactory or
building."
E
The aforesaid provision suggests that even a part of a build-
ing or a house can be acquired provided the conditions mentioned
• and the procedure specified therein are followed and there is no
absolute bar to the acquisition of a part of a house or a building as
suggested by the counsel for the respondents.
F
In view of the decision in the case of H. D. Vora in the light
of the decision of this court rendered by Bench of three Judges in
Collector, Ako/a and Ors. v. Ramachandra and Ors. (supra) and
bearing in mind the distinction between 'requisition' and 'acquisition'
as also the provisions of West Bengal amended section 49 (1)
G
(quoted above), the correct position in law would be that it will
not be correct to say that in no case can an order of requisition
for permanent purpose be made but in a situation where the
• purpose of requisitioning the property is of n permanent character
and where the Government has also the power and the opportunity
to acquire the property or a part thereof especially upon the fulfil- H
69il SUPREME COURT REPORts (1985} [ S.C.R.

ment of the conditions of section 49 (I) of the Land Acquisition
A
Act (as amended by the West Bengal Act) to the extent applicable,
if the Government chooses not to exercise that power nor attempts
to exercise that power to achieve its purpose, then that will be bad
not because the Government would be acting without power of
B requisition but the Government might be acting in a bad faith. In
other words, if there is power to acquire as also the power to requisi-
tion and the purpose is of perm1nent nature by having the property •
or a part thereof for the Government then in suco case to keep the
property under requisition perman,ntly might be an abuse of the
power and a colourable exercise of the power not because the
Government lacks the power of requisition but be·~ause the Govern-
G ment does not use the other power of acquisition which will protect
the rights and interests of the parties better.

Where one is repository of two powers that is power of requisi-
tion as well as power of acquisition qua the same property and if
D the purpose can equally be served by one which causes lesser in-
convenience and damage to the citizen concerned unless the reposi-
tory of both the powers suffers from any insurmountable disability,
user of one which is disadvantageous to the citizen without exploring
the use of the other would be bad not on th<: ground that the
Government has no power but on the ground that it will be a
E misuse of the power in law.

It is true that the purpose indisputably in the instant case is a
public purpose. It is also true that the only part of the building '
namely one room has been requisitioned for the show room but the
F premises in question has remained under requisition for over 25
years and the purpose of having the premises in question is of
a permanent and perennial nature. But that by itself without any- ,,
thing more would not enable the court to draw the inference that
the exercise of the power was bad initially, nor would the continu-
ance of the requisition become ma/a fide or colourable by mere
lapse of time. In order to draw such an inforence some more
G material ought to have been placed before the court. In the circums-
tances after having heard counsel on either side :fully we feel that
the following would be an appropriate order to be made in the
instant case : •
I. The impugned requisition order is upheld but the continu-
H
J.D. PARAKI v. LAND ACQUiSITION COLLECTOR( s. Mukharji, J.) 699
ance of the requisition of the premises in question is permitted sub-
ject to the conditions mentioned hereinafter. A
2. The Government is directed to take steps to acquire pre-
mises in question by complying with the conditions mentioned and
by following the procedure prescnbed in section 49 (I) of the Land
Acquisition Act, 1894 as substituted for the State of West Bengal
by the West Bengal Act 32 of 1955 and if possible issue an appro-
priate order acquiring the same if Government wants the continued B
' use.of the premises. Such steps should be completed within a
period of three years from today.
3. If, however, there are insurmountable difficulties in acquir-
ing the premises under section 49 (I), the Government will be at
liberty to apply to this court for appropriate directions. c
4. We also hope that the Government would take steps to
• acquire any alternative property or premises under Land Acquisition
Act, 1894 in view of the fact that the purpose of the Government is
more or less permanent and such steps should also be taken not
beyond a period of three years as aforesaid.
5. If the aforesaid conditions or directions are not complied n
with, the petitioner will also be at liberty to apply to this court for
appropriate directions in accordance with law.
6. In the meantime, the parties are at liberty to make any
appropriate application for the enhancement of rent or compensation
in accordance with law, if they are so entitled to, and this will also E
not prejudice the parties from proceeding with any suit for damages
etc. that may be pending.
The parties will pay and bear their own costs.
The application is disposed of accordingly.
CIVIL ORIGINAL JURISDICTION : Review Petition No. 641 of
1984. Order
in F
Writ Petition No. 11222 of 1983.
dated 15th April 1985
Since it has been brought to our notice (which should have
been done when the matter was heard) that the West Bengal Act 32 of
> 1955 is not applicable to the facts of the case, we direct that any G
reference to that Act whereever git occurs shall be deleted and in
particular, in para 2 of the order portion of our Judgment we delete
the words "as substituted for the State of West Bengal by the West
• Bengal Act of 1955''. The rest of the order stands. The Review
Petition is disposed of accordingly.
S. R. Appeal dismissed.
H