UNION OF INDIA Vs. KANTILAL NIHALCHAND
LAWS(BOM)-1972-9-19
HIGH COURT OF BOMBAY
Decided on September 26,1972

UNION OF INDIA Appellant
VERSUS
Kantilal Nihalchand Respondents

JUDGEMENT

Tulzapurkar J. - (1.) The real question that falls for determination in the present case, therefore, is whether by reason of the enactment of the Act of 1952, the procedure prescribed by the Act of 1894 gets excluded or replaced? In other words, the question is whether the procedure prescribed by the Act of 1952 in the matter of acquiring requisitioned property is substitutive of or supplemental to the procedure prescribed under the Act of 1894? In support of his contention that the procedure prescribed under the general Act of 1894 gets excluded or replaced by reason of the enactment of a specific or particular procedure prescribed by the Act of 1952, Mr. Setalvad relied upon two or three things. In the first place Mr. Setalvad invited my attention to sections 23 and 24 of the Act of 1894, the former section sets out the matters which have to be taken into consideration for determining compensation payable under the Act, while the latter section sets out the matters which have to be neglected in determining such compensation, and in particular Mr. Setalvad pointed out that clauses secondly, thirdly, fourthly and sixthly of sub-s. (1) of section 23 would be applicable only if the land is acquired under the Act of 1894, inasmuch as the said clauses require the Land Acquisition Officer or the Court to take into consideration, while determining the amount of compensation, certain types of damage sustained by the owner by reason of certain things being done on or with respect to his land 'at the time of taking possession' thereof by the Collector and that these clauses would be clearly inapplicable to a case where the land is being acquired under the Act of 1952, inasmuch as such land when acquired under the Act of 1952 is already in possession of the Central Government under a prior order of requisition. Mr. Setalvad contended that the fact that certain clauses of section 23(1) of the Act of 1894 would be clearly inapplicable to the acquisition of land under the Act of 1952 would show that the procedure prescribed under the Act of 1894 is impliedly excluded or replaced when requisition proceeds under the Act of 1952. It is not possible to accept this submission of Mr. Setalvad for the simple reason that even in the case of acquisition of land under the Act of 1894 itself several clauses of section 23 (1) would be inapplicable depending upon the nature of land that is being acquired thereunder, for instance under the second clause of sub-s. (1) of section 23 while determining the amount of compensation the Land Acquisition Officer or the Court is required to take into consideration "the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof" and it may be that the land that is being acquired in a given case may not have standing crops or trees thereon, in which case there would be no question of taking this factor into account while determining the amount of compensation payable to the person interested. Similarly, in given cases there may not be any 'severence' or 'injurious affectation' as contemplated by the third and fourth clauses of sub-s. (1) of section 23, in which event the said clauses would also be inapplicable to acquisition of land under the Act of 1894. In other words, the inapplicability of some of the clauses of section 23 (1) may arise due to the fact that the circumstances contemplated by those clauses including the circumstance of taking possession, may not exist or occur. Therefore, it is not possible to accept Mr. Setalvad's contention that implied exclusion of the procedure under the Act of 1894 should be inferred from the fact that certain clauses of section 23 of the Act of 1894 would be inapplicable to acquisition of requisitioned property under the Act of 1952. Secondly he relied on the language of the proviso to section 6 (1) of the Act of 1952 for drawing the inference of implied exclusion. That proviso runs as follows : "Provided that where the purposes for which any requisitioned property was being used cease to exist, the Central Government shall, unless the property is acquired under section 7, release that property, as soon as may be, from requisition."
(2.) It is urged that the aforesaid proviso indicates how requisitioned property has to be acquired, namely that it is to be acquired under section 7 of the Act, that is to say, by following the procedure prescribed under the Act and according to Mr. Setalvad, the language contained in the proviso does indicate that acquisition under any other law is intended to be excluded. I am unable to accept this submission. In the first place the function of the proviso is not to indicate the procedure or manner of acquisition but to cast an obligation on the Central Government to forthwith release the requisitioned property back to the owner no sooner the purposes for which it was being used cease to exist; and secondly the proviso has to be read in the context of sections 5 and 6 (1) and if it is so read it will be clear that the emphasis in the proviso is not on the manner of acquisition but on the fact of acquisition. In my view, the proviso merely reiterates the legal position obtaining in the matter, namely that the requisition must come to an end as soon as the purposes for which the property is being used cease to exist and thereafter the Central Government cannot retain the property with itself any longer and the same must be returned to the owner unless the Government chooses to acquire it, and the proviso cannot be read so as to indicate that the procedure prescribed by section 7 of the Act of 1952 is the only procedure for acquiring requisitioned property. Lastly Mr. Setalvad pointed out that under section 7 (3) fetters have been imposed upon the power of the Central Government to acquire requisitioned property under the Act of 1952, for it is clear that unless these conditions are fulfilled no requisitioned property could he acquired under the Act and he contended that if the requisitioned property could be acquired under the Act of 1894, then there was no point in putting such fetters under section 7 (3) of the Act upon the power of the Central Government to acquire the requisitioned property; in other words, the existence of such fetters upon the power shows that the requisitioned property cannot be acquired under the Act of 1894 and as such the procedure prescribed by the Act of 1894 must be deemed to be impliedly excluded or replaced. On the other hand, Mr. Rana contended that the fact that fetters have been imposed upon the power to acquire requisitioned property under the Act of 1952 would not lead to the inference of exclusion of the Act of 1894 or the procedure prescribed thereunder and according to him the correct way to appreciate the position in the context of these fetters is that if acquisition of requisitioned property is to be done under the Act of 1952, then only the question of satisfying the conditions mentioned in section 7 (3) would arise, but if acquisition of requisitioned property is to proceed under the Act of 1894, there would be no question of any fetters being attached to the power of the Central Government to acquire such property. He, therefore, urged that the existence of fetters under section 7 (3) on the power of the Central Government to acquire requisitioned property when acquisition is to proceed under the Act of 1952 would not lead to the inference that the procedure under the Act of 1894 is impliedly repealed, and in that behalf he relied on a decision of the Supreme Court reported in Baliah v. Rangachari, 1969 A.I.R. S.C. 701 . In that case the appellant had made false statements in verification of Income-tax Returns for the assessment years 1958-59, 1959-60 and 1960-61 for which he could have been prosecuted either under section 177 of the Indian Penal Code or under section 52 of the Income-tax Act, 1922 and he was actually prosecuted under section 177 of the Indian Penal Code and it was contended on his behalf that the provision of section 52 of the Income-tax Act, 1922 was a special provision in that behalf, so that he could be prosecuted only under that provision and not under section 177 of the Indian Penal Code which was a general provision, and it was urged that in respect of matters covered by section 52 of the Income-tax Act, 1922 the provisions of section 177 of the Indian Penal Code should be taken to have been repealed by implication and that therefore his prosecution under section 177 of the Indian Penal Code was illegal. After considering the relevant provisions of the two enactments the Court negatived the above contention and came to the conclusion that there was no repugnancy or inconsistency between the provisions of the two enactments and that the two enactments could stand together and must be treated as cumulative in effect. It will be pertinent to mention that in support of his contention that section 177 of the Indian Penal Code was impliedly repealed the appellant relied upon four factors which according to him brought out the difference between the two enactments rendering them inconsistent with one another, and one of such factors on which he relied was that section 28 of the Income-tax Act provided for levying of penalties in respect of certain matters and under section 28 (4) it had been provided that if in respect of those matters penalty was levied then no prosecution in respect of those matters could be launched, whereas there was no such bar under section 177 of the Indian Penal Code must be taken to have been impliedly repealed. The Supreme Court did not accept the contention based on this difference so as to lead to an inference of implied repeal. Relying upon this decision Mr. Rana contended that the existence of fetters on the power to acquire the requisitioned property under the Act of 1952 cannot, therefore, lead to an inference that the procedure prescribed for acquiring property under the general law, namely the Act of 1894 is impliedly replaced or repealed. There is no doubt that this decision of the Supreme Court supports Mr. Rana's contention. I am, therefore, of the view that the conditions mentioned in section 7 (3) of the Act of 1952 which are by way of fetters upon the Central Government's power to acquire requisitioned property do not render the two enactments (Act of 1952 and Act of 1894) inconsistent so as to lead to the inference of implied exclusion or implied repeal. In my view, the proper way of reading the provisions of section 7 of the Act is that if and when the requisitioned land has to be acquired under the Act of 1952, the conditions mentioned in section 7 (3) must be fulfilled, but those conditions would not come into play when the acquisition proceeds under the Act of 1894. In my view, therefore, the two or three matters or aspects on which Mr. Setalvad relied do not indicate exclusion or repeal by implication of the machinery or procedure for acquiring property prescribed under the Act of 1894.
(3.) On the other hand, the following circumstances would go to show that the procedure prescribed under the Act of 1952 is not substitutive of the procedure prescribed by the Act of 1894. In the first place, there is nothing in the Statement of Objects and Reasons given for the enactment of the Act of 1952 to show that the procedure prescribed for acquiring the requisitioned property was intended to be substitutive and not supplemental. In fact, as I have stated earlier, the principal objects for which the enactment was passed was to ensure the continuance of the requisitioned properties which had been requisitioned under the Defence of India Rules and to secure power to the Central Government to make fresh requisitions of properties for its puposes and it was with a view to achieve these objects that the enactment came to be passed and while enacting such a measure the power to acquire the requisitioned properties subject to certain specified conditions was incorporated in that Act. Having regard to the manner in which the power to acquire the requisitioned property came to be incorporated in the Act, it will have to be regarded that the procedure prescribed under the said Act was never intended to replace the procedure prescribed under the general law being the Act of 1894. Secondly it will be pertinent to note that the Act deals with the subject of requisitioning and acquisition of immovable property, that is to say, the field covered by the enactment is one which relates to all kinds of requisitioned property but it provides for acquisition of only certain types of requisitioned property and not all. In other words, the Act confers power upon the Central Government to acquire only a limited class of requisitioned properties viz. those which fulfil the conditions prescribed under section 7 (3) and Mr. Setalvad's contention has been that qua the entire field covered by the Act of 1952 the procedure to acquire property prescribed by the Act of 1894 is excluded, which must mean that those requisitioned properties which do not satisfy the conditions prescribed under section 7 (3) can never be acquired by the Central Government for any purpose and at any time so long as the requisitioning continues. I do not think that such a result was intended by the Legislature when it enacted the Act of 1952. In other words, at least over a part of the field covered by the Act of 1952 the procedure prescribed under the general Act of 1894 cannot be said to have been repealed by implication. Thirdly the language of section 7 of the Act of 1952 is in affirmative terms which ordinarily rules out the theory of implied repeal or implied exclusion. Lastly the Act of 1894 is unquestionably a permanent statute and the procedure thereunder cannot be said to have been impliedly repealed by the subsequent temporary statute like the Act of 1952, especially when the temporary statute does not create a new right unknown to the permanent statute. Having regard to these facts and circumstances, I am unable to accept Mr. Setalvad's contention that by reason of the enactment of the Act of 1952 the machinery or the procedure prescribed under the Act of 1894 is impliedly excluded or impliedly repealed even in regard to acquisition of requisitioned properties which fulfil the conditions mentioned in section 7 (3) of the Act of 1952. In my view, therefore, the two sets of procedure, one under the Act of 1952 and the other under the general enactment viz. the Act of 1894, are available to the Central Government for the purpose of picking and choosing some out of such requisitioned properties for adoption of the more prejudicial procedure prescribed under the Act of 1952 and since it is left to the unguided option of the Central Government to make its choice, section 7 of the Act must be regarded as discriminatory and violative of art. 14. The impugned order, therefore, deserves to be set aside. The respondents appealed.;


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