- (1.) This cause has been instructed with affidavits by learned counsel who have had the conduct of it. It has been argued at length by both sides. It now devolves upon me to give decision on the basis of the affidavits and arguments.
(2.) We may glance for a few moments at the background of facts out of which this cause arises. To start with it was on 19th November, 1964, that the Administrator passed an order under Section 29(1) of the Defence of India Act 1962, requisitioning an open plot of land No. II situated in village Chikalim, belonging to the petitioner company by the name of M/s. Chowgule Real Estate and Construction Private Ltd. The petitioner company wrote to the State Government (respondent No. 1) on 26th November, 1964, requesting that this order be withdrawn, as metals required by the Government would be supplied by it. By an order dated 1st April 1965, the State Government in exercise of the powers conferred by Section 31 of the Defence of India Act, directed the petitioner company to furnish information required by them on the lines indicated. The actual possession of the plot was taken on 18th May 1965, notwithstanding the representations made for reconsideration on behalf of the petitioner company, that the order of requisitioning the plot be withdrawn. The plot requisitioned was purchased by the petitioner company with a view to ensuring steady supply of metals extracted for construction of their factory buildings etc. The petitioner company had the necessary organization and resources to work the quarry situated in the plot and extract metals in large quantities for the purposes of supply to the Navy, and also for utilizing the remaining part for construction of their factory building etc., but in spite of this fact, the possession of the plot was entrusted to a private contractor, their rival in trade, for extracting metals required for expansion of the air-strip in Dabolim Airport and other connected constructions of the Navy. The contractor had been intending to use metals extracted from the quarry for his private works. The petitioner company represented again to the State Government for releasing the plot, but, as there was no response, the petitioner company filed the petition under Article 226 of the Constitution on 5th December 1967. The relief sought by the petitioner company in this petition is that the order requisitioning the plot (hereinafter referred to as 'the impugned order') be quashed by an appropriate writ etc., for the following reasons:- (1) that the impugned order for an indefinite period of time and a refusal to derequisition the same amounts to an arbitrary and colourable exercise of powers especially because the quarry is subject to the law of diminishing return; (2) that the impugned order is bad as requisite opinion was not formed by the Central Government in terms of Section 29(1), before its issue; (3) that the working of the quarry and the extraction of metals does not bear on the subject of securing the Defence of India purpose as stated in the impugned order; (4) that there is no written order passed by the Central Government delegating its power to requisition the plot in favour of the State Government; (5) that the Administrator having been appointed by the President of India to administer the Union territory cannot be delegated the executive function of the Union Government and, for this reason, even if there was no order of the Central Government delegating its powers to requisition the plot, delegation made in favour of the Administrator is not permissible in law having regard to the provisions of the Constitution of India; and (6) that the rules of natural justice have been violated as the petitioner company, as an owner, was not heard before the impugned order was passed. The petition was later amended on 29th October, 1968. This amendment became necessary in view of enactment by Parliament of Section 25 of the Requisitioning and Acquisition of Immovable Property (Amendment) Act, 1968, following revocation of the Proclamation of Emergency on 10th January, 1968 under Article 352 (2) (a) of the Constitution. The effect of the amendment, according to the petitioner company, is that the defence of India purpose for which the plot was requisitioned under the Defence of India Act ceased to exist after the expiration of 6 months from 10th January, 1968, in terms of Section 1(3) of the Defence of India Act, and, therefore, in view of the proviso to Section 6 of the Requisitioning and Acquisition of Immovable Property Act 1952, it cannot continue to be held for the said purpose, assuming the impugned order is not invalid for the reasons mentioned earlier; in the premises, the plot had to revert to the petitioner company after the expiration of the said period, notwithstanding enactment of the said Section 25, apart from the fact that the Administrator was not constituted as a competent authority for requisitioning the plot under the Requisitioning and Acquisition of Immovable Property Act, 1952. The additional grounds for attacking the impugned order are that it offends the provisions of Articles 19 and 31 of the Constitution. This is because of the acts of waste on the part of the State Government and its contractors. This, in broad, is the case of the petitioners.
(3.) The case of the respondents before enactment of the said Section 25, as set out in the counter-affidavit sworn on behalf of the State Government by its Revenue Secretary is that the power to requisition the immovable property can be exercised both by the Central Government or the State Government and the Administrator, under Section 29(1) read with Section 2(1) of the Defence of India Act. The Central Government as well as the Administrator formed the requisite opinion in terms of the said Section 29(1). The extraction of metals from the quarry for Defence Works has a bearing on the subject of securing the Defence of India purpose. The impugned order passed by the Administrator is in accordance with the provisions of law and, therefore, it is valid. There is no law which requires that the requisitioning cannot be for an indefinite period. What the Defence of India Act requires is that requisitioning of immovable property should not extend beyond the period for which such property is required for the purposes specified in the said Section 29(1). It is for the Navy, which is not a party to the present petition, to accept or rebut the averments that it did not have the organization nor equipment to undertake the operations of quarrying of metals. The principles of natural justice have not been violated. The requisitioning of the plot is an administrative act and, therefore, it is not justiciable. The petitioner company has not made out a case for grant of an appropriate writ etc. and therefore, the petition should be dismissed. In the supplementary affidavit sworn by the same Revenue Secretary after enactment of the said Section 25, it was denied that with the revocation of the Proclamation of Emergency, the defence of India purpose ceased to exist. The purpose of securing the defence of India, according to him, continues to exist. The activity of quarrying operations is exclusively meant for securing the defence of India purpose. As a result of the operation of Sections 6 and 8(2)(b)(iv) of the Requisitioning and Acquisition of Immovable Property Act 1952, damages other than normal wear and tear are contemplated and compensation has been provided for in this Act. The purpose of retaining the plot to carry on quarrying operations falls within the purview of the Requisitioning and Acquisition of Immovable Property Act 1952 as amended by the Requisitioning and Acquisition of Immovable Property (Amendment) Act 1968. There is also the counter-affidavit sworn by the Garrison Engineer to the effect that the plot containing the quarry is given to various contractors for extracting metals in accordance with the relevant clause of the contracts executed on behalf of the President of India. The metals extracted are to be utilized exclusively for the Defence Works, and that apart from this clause, contractors have also been instructed not to use the metals extracted in any other works. It is not the intention of the Navy and the M.E.S. organization to do the quarrying operations. This, in substance, is the case of the respondents.;