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Malpani Food Products Pvt.Ltd. v/s State Of Assam Respondents : State Of Assam


Company & Directors' Information:- MALPANI FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314AS1997PTC004949

Company & Directors' Information:- MALPANI PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2019PTC183025

Company & Directors' Information:- ASSAM FOOD PRODUCTS PVT LTD [Strike Off] CIN = U28129AS1969PTC001302

    Civil Rule 2846 Of 1998

    Decided On, 26 February 1999

    At, High Court of Assam

    By, THE HONOURABLE MR. JUSTICE A.K. PATNAIK

    For the Appearing Parties: H.N. Sarma, G.N. Sahewalla, A.K. Goswami, P. Bora, S. Senapati, Advocates.



Judgment Text

A.K. PATNAIK, J.

(1.) In this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order dated 9.6.98 passed by the Collector-cum-Additional Deputy Commissioner, Sibsagar requisitioning the land and building of the petitioner at Sibsagar in purported exercise of powers under Section 3 of the Assam Land (Requi- sition and Acquisition) Act, 1964.

(2.) Relevant facts as briefly stated in the writ petition are that the petitioner, M/s Malpani Food Products Pvt. Ltd. purchased a flour mill together with the land and building situated at Rangghar Chariali, Nagarmahal Mouza in the district of Sibsagar by a Registered sale deed dated 7.3.97. After the said purchase, the petitioner got its name mutated in the revenue records in April, 1998 and invested a huge amount of money in the said flour mill which was lying closed since 1990 and revived the flour mill. On 9.6.98, some Army personnel came and occupied a portion of the said property on the strength of the order dated 9.6.98 passed by the Collector-cum-Additional Deputy Commissioner, Sibsagar purported to have been passed under Section 3 of the Assam Land (Requisition and Acquisition) Act, 1964, (for short, "the Act") requisitioning the Assam Valley Flour Mill in Sibsagar town, Nagarmahal Mouza with an area of 1 Bigha, 0 Katha 0 Lecha in Dag No. 7331, PP No. 1845. Aggrieved by the said order dated. 9.6.98 and the occupation of the land and building of the said flour mill, the petitioner has moved this court for appropriate relief.

(3.) Mr G.N. Sahewalla, learned counsel for the petitioner, submitted that under subsection (1) of Section 3 of the Act, it is only the State Government or any person authorised by the State Government who could, by order in writing, requisition the land and building for a public purpose. In the instant case, the State Government has not passed the impugned order dated 9.6.98. The impugned order has been passed by the Collector-cum-Additional Deputy Commissioner, Sibsagar who has not been authorised by the State Government in terms of Section 3 of the Act to pass an order of requisition. Hence, the impugned order of requisition is ultra vires sub-section (1) of Section 3 of the Act. Mr Sahewalla next submitted thatt sub-section (2) of Section 3 further stipulates that the order of requisition passed under sub-section (1) of Section 3 has to be served on the owner of the land, but the impugned order dated 9.6.98 has not been served on the petitioner-company which had become the owner of the land by virtue of the registered sale deed No. 324 dated 10.3.97. In this context, he pointed out that soon after purchasing the land with building, the petitioner applied for mutation and orders were passed for mutation and the land in fact was mutated in the name of the petitioner-company in the revenue recdrds in March, 1990. Hence, the Assam Valley Flour Mill which was the owner of the land prior to its purchase by the petitioner under the aforesaid sale deed dated 7.3.97 was no longer the owner of the land and building even as per the revenue records. Yet in the impugned order dated 9.6.98, the said Assam Valley Flour Mill has been described as the owner of the land. This error, according to Mr Sahewallai, was a grave error in the impugned order and the same is liable to be quashed on this count alone. Mr Sahewalla further contended that sub-section (3) of Section 3 of the Act confers on the owner of the land a right of appeal to the State Government where the order of requisition is made by the authority other than the State Government. But since the impugned order was not served on the petitioner-Company, the petitioner could not avail of the said right of appeal under sub-section(3(of Section 3 of the Act. Mr Sahewalla further urged that sub-section (1) of Section 4 of the Act further provided that where the land is requisitioned under Section 3 of the Act, the State Government or a person authorised by the State Government may by an order in writing direct the owner or any other person who may be in possession of the land at the time of requisition or any time Whereafter to surrender or deliver possession of the land to the Collector or any person duly authorised by him within such) time as may be specified in the said order; He pointed out that the form of the said order for delivery of possession of the requisitioned land is Form-'C' as prescribed under rule 5 of the Assam Land (Requisition and Acquisition) Rules, 1964, (for short, "the Rules"). But no such order in Form-'C' under sub-section (1) of Section 4 of the Act and under rule 5 of the Rules was ever served on the petitioner-Company although the petitioner- Company was the owner and was in occupation of the requisitioned land. Mr Sahewalla contended that the flour mill of the petitioner was operative at the time when it was requisitioned by the impugned order dated 9.6.98 and since it was producing flour which was an essential commodity required by the general public, the impugned order which has resulted in closure of the flour mill was not in the public interest and was liable to be quashed for non-application of mind of the requisitioning authority. Finally, he argued that although the impugned order of requisition is confined to an area of only one bigha, the Army personnel have occupied the land for beyond the said area of one bigha and are continuing to occupy the same despite orders having been passed on 21.7.98 to the effect that the possession of the Army personnel will be confined to only the requisitioned area. (4.) In reply, Mr H.N. Sarma, learned Additional Senior Government Advocate, Assam, appearing for the respondents, produced true copy of the records to show that Sri Ashok Kumar Malpani of the petitioner-Company had informed the Superintendent in-charge, Food and Civil Supplies, Sibsagar that the functioning of the mill had temporarily stopped since April, 1998 due to some dispute with the Assam State Electricity Board for over-billing of electricity charges. The said Superintendent in-charge, Food and Civil Supplies, Sibsagar had also informed the concerned authorities in his report dated 14.7.98 that no allotment of PDS Wheat had been given to the mill till 16.7.98. He further contended that as per the records maintained under the Assam Land and Revenue Regulations, the Assam Valley Flour Mill continued to be the owner of the flour mill premises and it is for this reason that the impugned order dated 9.6.98 has mentioned the Assam Valley Flour Mill as the owner of the requisitioned land. He submitted that the records also indicated that the impugned order dated 9.6.98 requisitioning the land was duly served on the said owner of the land. In this context, Mr H.N. Sarma referred to the provisions of Sections 50, 51 and 52 of the Assam Land and Revenue Regulations to show that it was the obligation of the petitioner-Company to apply for registration of its name in the said records maintained under the Assam Land and Revenue Regulations. He contended that even assuming that no order in Form-'C' under sub-section (1) of Section 4 of the Act and under rule 5 of the Rules was served on the petitioner who was occupying the requisitioned land, the impugned order of requisition dated 9.6.98 would not stand vitiated for such non-service of the order in Form-'C'. He finally contended that at any rate due to immediate need of accommodating a contingent of Army Brigade who had to be shifted from Jayanagar on public demand, the authorities had no other option but to requisition the land and building of the flour mill and that the order of requisition was in the public interest and should not be quashed by this court. He submitted that in case the petitioner was aggrieved by the said impugned order of requisition, it could have filed an appeal to the State Government as provided under sub-section (3) of Section 3 of the Act instead of approaching this court in a writ petition.

(5.) Section 3 of the Act on which reliance has been placed by the learned counsel for the petitioner is quoted herein below:-

"3. POWER TO REQUISITION. (1) If in the opinion of the State Government or any person authorised in this behalf by the State Government it is necessary so to do, for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation, flood control and anti-erosion measures including embankment and drainage or for providing land individually or in groups to landless, flood affected or displaced persons, or to a society registered under the Assam Co-operative Societies Act, 1949 (Assam Act I of 1950), or a company incorporated under the Companies Act, 1956 (Act I of 1956), formed for the benefit and rehabilitation of landless, flood affected or displaced persons or to provide land for the purpose of construction of border fencing and allied works, including border roads - and check posts connected therewith, along Bangladesh border, the State Government or the person SID authorised, as the case may be, may, by order i in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in connection with the requisitioning: Provided that no land used for the purpose of religious worship shall be requisitioned under this Section: Provided further that where it is necessary to provide the land to landless or displaced persons such land shall not be requisitioned unless the person interested in the land has been given an, opportunity of making representation against it: within such time and in such manner as may he prescribed in this behalf. (2) An order under sub-S. (1) shall be served in the pi-escribed manner on the owner of the land and where the order relates to land in occupation of a tenant, also on such tenant. (3) When the order for requisition is made by any authority other than the State Government, any person interested in the land, within 3D days from the date of service of the order, may appeal to the State Government and the decision of the State Government in such appeal shall be final."

A reading of Section 3 of the Act quoted above would show that it is only the State Government or any person authorised on behalf of the State Government who after forming the opinion as indicated in the said Section may by order in writing requisition any land. In the instant case, the impugned or- order dated 9.6.98 requisitioning the land in purported exercise of power under the aforesaid Section 3 of the Act has not been passed by the State Government but has been passed by the Collector-cum-Additional Deputy Commissioner, Sibsagar. Since the Collec- tor-cum-Additional Deputy Commissioner, Sibsagar could pass the impugned order only if he was authorised to pass such order for requisition in terms of Section 3 of the Act, I called upon Mr H.N. Sarma, learned Additional Senior Government Advocate, Assam by order dated 1.12.981 to file a copy of the notification/order authorising the said Collector-cum-Additional Deputy Commissioner, Sibsagar to requisition the land under Section 3 of the Act. Pursuant to the said order dated 1.12.98, Mr H.N. Sarma has filed the communication dated 281.12.98 of the Deputy Commissioner, Sibsagar to the Additional Senior Government Advocate, As- . sam, in which it has been stated:

".....As regard the authority of Additional Deputy Commissioner, Sibs;agar to act as Collector as mentioned in the Requisition Order dated 9.6.98, it is pointed out that though there are no such specific orders authorising the Additional Deputy Commissioners to pass Requisition Orders as Collector, the A.D.Cs usually requisition buildings whenever it is urgently required in the absence of the Deputy Commissioner or when he is otherwise busy. The present Requisition Order was issued by Shri P.N. Bhuyan, Addl. Deputy Commissioner on the strength of authorisation of Deputy Commissioner, Sibsagar in his endorsement on the body of the prayer petiticm of the Army Authority, Joysagar."

It is clear from what has been stated by the Deputy Commissioner, Sibsagar in his communication dated 28.12.98 to the Additional Senior Government Advocate, Assam that there were no specific orders passed by the State Government authorising the Additional Deputy Commissioner to pass requisition order as Collector, and that the Additional Deputy Commissioners requisition buildings whenever it is urgently

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required in the absence of the Deputy Commissioner or when he is otherwise busy. (6.) I am afraid, the practice of Additional Deputy Commissioner's passing reqisition orders in the absence of the Deputy Commissioner or when the Deputy Commissioner is busy will not confer jurisdiction under sub-section (1) of Section 3 of the Act to pass orders for requisition of any land unless the State Government expressly authorises an Additional Deputy Commissioner to pass an order for requisition in terms of sub-section (1) of Section 3 of the Act. In my considered opinion therefore the impugned order of requisition dated 9.6.98 passed by the Additional Deputy Commissioner, Sibsagar is without jurisdiction and is liable to be quashed. Since the petitioner is entitled to relief on this ground alone, it is not necessary to go into the other contentions raised by Mr G.N. Sahewalla, learned counsel for the petitioner. (7.) In the result, the impugned order dated 9.6.98 passed by the Additional Deputy Commissioner, Sibsagar requisitioning the land and building of the petitioner is quashed and the respondents are directed to restore the property requisitioned under the impugned order dated 9.6.98 to the petitioner forthwith. (8.) The writ petition is allowed. However, considering the facts and circumstances of the case, I leave the parties to bear their own costs.
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