JUDGMENT - Chagla, C.J.

1. By this petition an order of requisition made by the Collector of Ahmedabad on May 15, 1953, is being challenged by the petitioner. The property requisitioned is a stall in the vegetable market at Dholka, and the ground of the challenge is that the order does not comply with the mandatory provisions of Section 5 of the Bombay Land Requisition Act.

2. Now, this property, as the order itself states, has been requisitioned under Sub-section (1) of s. 5 of the Act, and turning to that section it provides :

"If in the opinion of the State Government it is necessary or expedient so to do, the State Government may by order in writing requisition any land for the purpose of the State or any other public purpose:"

The power of the State to requisition which is conferred by this sub-section is undoubtedly very Wide. It may requisition any land, and "land" is denned as including buildings, and it is clear that the power to requisition is not confined to requisitioning residential buildings. So long as the State Government wishes to requisition land for the purposes of the State or any public purpose, the State Government has the power to act under Section 5(1).

There is a proviso to that Sub-section and that proviso is that no building or part thereof wherein the owner or landlord or the tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section. Therefore, having conferred the power of requisitioning under Section 5(1) the Legislature has placed a certain limitation upon that power and that limitation is that no building or part thereof can be requisitioned if the landlord or the tenant has actually resided in that building for a continuous period of six months. It will be noticed that the proviso applies only to a building or a part thereof, and the reason for making the proviso apply only to a building or a part thereof is obvious because no question of actual residence can arise on an open plot of land. Then we come to Sub-section (2):

"Where any building or part thereof is to be requisitioned under Sub-section (1), the State Government shall make such inquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or the tenant, as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided."

Giving to this Sub-section a natural grammatical interpretation, it is clear that the Legislature has given two directions to the State Government which are obligatory in their character, and the two directions are that the State Government must hold an inquiry where a building or a part of a building is to be requisitioned and also that it shall make a declaration that the landlord or the tenant has not actually resided in that building, and Sub-section (2) further provides that the effect of making such a declaration is that the declaration becomes conclusive evidence that the owner, landlord or tenant has not resided in the building or part thereof.

In this particular case, looking at the order, there is no declaration as required by Sub-section (2). The petitioner contended that no inquiry had been held by the State Government before the order was made. On the affidavit we are in-formed that an inquiry was held, and for the purpose of this petition we will assume that the inquiry contemplated by Sub-section (2) was in fact held, but it is clear that the inquiry was not followed by the making of a declaration as required by Sub-section (2).

3. Now, what the Advocate General contends in the first place is that Sub-section (2) only applies where Government wishes to requisition residential buildings or part of residential buildings. The Advocate General says that if the buildings are non-residential, t

Click Here to Read the rest of this document