Dutta, C.J. -
(1.) THIS is a petition under Article 226 of the Constitution of India. The Petitioner's case is as follows. The Petitioner is a firm registered under the Indian Partner shift Act and this firm owns and possesses a tea estate known as Bagrodia Tea Estate in the district of Lakhimpur, Assam. During the second World War the Government of India acquired in 1940 for defence purposes a part of the Sookeriting Tea Estate with its adjoining lands measuring 769.20 acres for the construction of an air -field. The air -field constructed on a portion of the said land; but an area of 300.20 acres over which there were tea bushes, was left out, The tea bushes were unattended and growing wild. This area became overgrown with, thick jungles. After the war, the area utilised for the air -strip measuring 469 acres was transferred to the State Government for its use and this area is still lying unutilised. The Government of India with a view to earn foreign exchange, decided to settle the aforesaid area of 300.20 acres with tea bushes thereon with some established tea planter. The Petitioner coming to know about this entered into negotiation with the Special Military Estates Officer, Assam Circle, with headquarters at Shillong and also with the Ministry of Defence, Govern Shillong and the Petitioner through its partner Sri Jayantilal Agarwalla.
On 2 -3 -62 the said deed of agreement was signed by Sri Mathur for and on behalf of the President of India and by the said Sri Jayanlilal Agarwalla for the Petitioner. By this deed of agreement the Union of India agreed to lease out the said 300.20 acres of land at Sookeriting at an annual rent of Rs. 6304.20 P. to the Petitioner. It was stipulated that the lease would run for one year from the date of handing over of possession of the land and that it would be renewable for a period of one year at a time subject to the condition that the land was not required by the lessor. Pursuant to this agreement, the Petitioner paid on 2 -3 -62 the first instalment of annual rent amounting to Rs. 6304.20 P. and on the 10th March, 1962 took possession of take land After thus taking possession, the Petitioner invested a sum of about Rs. 175000 and renovated the tea estate and succeeded in converting it to a well managed tea garden which now gives an average annual yield of 324317 kilograms of green leaves producing 73,149 kilograms of made tea worth Rs. 2,78,649. The Petitioner thereafter deposited as directed, the requisite stamps for execution of the lease. But Sri Mathur put off the execution of the same from time to time on one pretext or another.
In the meantime the Petitioner approached the Government of India through Sri J.N. Hazarika, Member of Parliament, who took up the matter with the Ministry of Defence atNew Delhi. Then the Deputy Minister for Defence by a letter dated 20 -12 - 62 informed Shri Hazarika that it would not De possible to extend the current lease as The land was required for Defence purposesThereafter, as the matter was pursued further by Sri Hazarika, the Minister ol Defence informed him by a letter dated 1 -4 -63 that since several tea planters had showed interest in the said tea estate, it was decided to auction the lease -hold right of that tea estate on an annual basis subject to the condition that the land might be resumed on short notice for defence" purposes. The Petitioner demanded the renewal of the lease on 25 -1 -63 but in spite of such demand, no action was taken whatsoever by the Government of India. On the other hand, the Military Estates Officer, Jorhat Circle (opposite party No. 4) issued a public notice on 20 -3 -63 for disposal of the said tea garden in public auction temporarily for one year. Being aggrieved by this notice, the Petitioner moved this Court under Article 226 of the Constitution when a rule was issued and an interim order was passed restraining the opposite parties from giving effect to the said notice for public auction.
On 28 -5 -63 the opposite parties moved an of 1963 in the Court of the Subordinate Judge, Upper Assam Districts, Dibrugarh against the Union of India and others for declaration of title and confirmation of possession and for specific performance of the agreement for lease and an interim injunction was granted by the Court restraining the Defendants from interfering in any manner with the Plaintiff's possession of the tea garden in suit. The writ application filed before this Court came up for hearing on 23 -7 -63, but it was not pressed as identical reliefs were claimed by the Petitioner in the Court of the Subordinate Judge, Upper Assam Districts at Dibrugarh in the aforesaid title suit. The petition was therefore dismissed by this Court by its order dated 23 -2 -63.
Subsequently two more suits being Title Suit No. 6.of 1964 and Title Suit. No. 13 of 1965 were filed by the Petitioner in the Court of the Subordinate Judge, Upper Assam Districts, Dibrugarh claiming identical reliefs in respect of different years. In these two suits also a temporary injunction was granted. Thereafter another suit being Tirile Suit No. 4 of 1966 was filed by die Petitioner claiming identical reliefs for another year. All these four suits are now pending. On 4 -9 -65. the temporary injunctions granted by the Subordinate Judge were confirmed. On 26 -10 -66 die Petitioner received an order of requisition of the said lands passed by opposite party No. 1, the Deputy Commissioner, Lakhimpur, Dibrugarh. The Petitioner, therefore, moved this out under Article 226 of the Constitution of India and a rule was issued and the operation of the requisition order was stayed
(2.) THE arguments advanced by Mr. A.K. Sen, appearing on behalf of the Petitioner, are as follows:
(1) The order of requisition was made by the Deputy Commissioner, Lakhimpur, Dibrugarh in which it was said that in his opinion it was necessary to requisition the property. The Deputy Commissioner was not the competent authority to form the opinion.
(2) The requisition of the land of the tea garden was mala fide.
In order to appreciate die first point it is necessary to refer to certain provisions in the Defence of India Act 1962 (hereinafter called the Act). Section 29(1) of the Act is as follows.
29. Requisitioning of immovable property
(1) Notwithstanding anything contained in any other law for the time being in force, if in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India, civil defence, public safety, maintenance of public order or efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any immovable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning:
Provided that no property or part thereof which is exclusively used by the public for religious worship shall be requisitioned". Section 40 of the Act is as follows:
Power to delegate: (1) The Central Government may, by order, direct that any of duty which by this Act or by any made under this Act is conferred or in upon the Central Government shall, circumstances and under such cond if any, as may be specified in defection be exercised or discharged also by any officer or anteriority subordinate Central Government, or
(b)whether or not die power or duty to a matter with respect to which a State Legislature has power to make laws, by any State Government or any officer or authority subordinate to such Government, or
(c) by any other authority.
(2) The State Government may, by order, direct that any power or duty which by this Act or by any rule made under this Act is conferred or imposed on the State Government or which, being by this Act or any such rule conferred or imposed on die Central Government, has been directed under Sub -section (1) to be exercised or discharged by the State Government, shall, in such circumstances and under such conditions, if any, as may be specified in the anteriority not being (except in the case of a. Union territory) an officer or anteriority subordinate to the Central Government.
(3.) IT will appear from the above sections that the opinion has to be formed either by the State Government or the Central Government. The Ministry of Home Affairs, by notification No. S.O. 1888, dated die 10th June, 1965, published in the Gazette of India, Ext. dated June 11, 1965, delegated the powers under Section 29 to all Collectors, District Magistrates, Additional District| Magistrates and Deputy Commissioners a the States and all Political Officers in N.E. F. A.;