V.A. Mohta, J.
1. Validity of show cause notice dated 4th September, 1986 (Ex. L) issued under proviso to section 7(1) of the Requisitioning & Acquisition of Immovable Property Act, 1952 (the Act of 1952) is questioned in this petition.
2. The point arises against the following undisputed legal and factual backdrop. Multistoried building known as Sudama House situated in Ballard Estate, Bombay, was requisitioned by the Government of India under Rule 76 of the Defence of India Rules, 1939 vide order dated 26th June, 1942 during Second World War on the stated ground of the requirement by the Department of supply for use in connection with the prosecution of the war.
3. A petition under Article 226 of the Constitution being Misc. Petition No. 289 of 1962, challenging the requisition as well as its continuation on several grounds was filed in the Court. Government of India, Ministry of Law, vide communication dated 18th March, 1963 informed that due to shortage of accommodation it was not possible at that time to release the property, new Government building which was under construction was expected to be completed by September/October, 1963 when the accommodation will be shifted to that building and then it may be possible to release the whole or part of Sudama House. When the said petition came up for hearing on 27th March, 1963 an application was made for withdrawal of the petition in view of the above letter. The petition was allowed to be withdrawn with liberty to file fresh petition, if so advised.
4. By middle of June, 1966 the building except the premises admeasuring 1530 sq. ft. on the ground floor in occupation of the 4th respondent - Post Master General, Maharashtra Circle, Bombay, was derequisitioned and possession delivered to respective owners.
5. The petitioners - the owners of 1530 sq. ft. area on the ground floor in which Ballard Pier Post Office is housed - wrote several letters to the officials for release of that property. The office of the Estate Manager, Government of India, wrote to the respondent No. 4 a letter dated 9th March, 1984, to the following effect on the subject of vacation of office accommodation in Sudama House and Anand Bhavan - other requisitioned building.
'As per the instructions received from the Directorate of Estates, Govt. of India, New Delhi vide their letter No. D-11031/3/84-Regions dated 1-3-1984, the two buildings viz. Sudama House and Anand Bhavan are under your occupation should be vacated within three months from the receipt of this letter as the Govt. has to de-requisition the said bldgs.
2. You are therefore requested kindly to make your own alternative arrangements within that stipulated period.
3. The vacant possession may kindly be handed over to the Ex. Engineer, B.C.D.F., C.P.W.D., Old C.G.O. Bldg., 5th floor, M.K. Rd., Bombay 400 022 under intimation to this office.
4. This may please be treated as MOST URGENT.'
Anand Bhavan Property was accordingly actually handed over to the owners.
6. On 4th May, 1984, the Senior Superintendent of Post Office of Bombay City wrote a letter to the petitioner on the subject of vacation of office accommodation stating that, (a) the Department has been advised by the Estate Manager, Government of India, to vacate the premises within three months vide letter dated 9th March, 1984, (b) shifting of the post office was impracticable, (c) the Postal Department would like to continue to function in the same premises even after its derequisitioning by the Government and (d) in this background the conditions under which the petitioners would like to permit the continuation of the occupation even after derequisition should be communicated within a week as the matter had to be settled before the end of May, 1984. The petitioners wrote back by letter dated 11th May, 1984 that the premises were required by them for personal use and therefore they were not interested to allow the post office to be continued in the premises. By letter dated 14th March, 1985, the petitioners wrote to the Government of India, through Dy. Director of Estates, inviting his attention to the fact that the vacant possession of the property as promised was not given despite lapse of time and that the process of delivery of possession should be expedited. A reminder was issued on 18th July, 1985.
7. The petitioners repeatedly asked for copy of and/or inspection of letter dated 1st March, 1984 referred to in the letter dated 9th March, 1984 but the request was not needed. On 4th September, 1986 the impugned notice was issued calling upon the owners to show cause as to why the property should not be acquired under section 7(1) of the Act for accommodating the office of the Postal Department.
It may be mentioned that the property is being used as Post Office since before 1946. Wooden partitions, counters, etc., are installed and one iron safe has been embedded in cement concrete by the side of a pillar by the Department during the period of requisitioning.
8. Following three contentions are raised by Mr. Dada, the learned Counsel for the petitioners.
(1) On the date the impugned notice was given, the property was not subject to requisition as a result, section 7 was not attracted at all;
(2) Sub-section (3) of section 7 enumerate the conditions precedent for the acquisition of property and since there is not even a whisper about any one of the two conditions in the show cause notice, it is bad in law;
(3) No 'works' as contemplated under section 7(3)(a) read with section 7(5) have been carried on the requisitioned property and therefore, also section 7 is not attracted.
We find considerable merit in all the three conditions for the reasons that follow.
9. First the historical background of the Act and then its salient provisions. At the time of the Second World War the Governor General promulgated Ordinance No. 5 of 1939 for the Defence of India under which the Defence of India Rules, 1939 were made. In course of time the Ordinance was replaced by the Act. The property was requisitioned under Rule 75-A of the Defence of India Rules, 1939. In the year 1946, the Requisition of Land Continuance of Powers Ordinance was promulgated and in the year 1947 it was replaced by the Requisition of Land Continuance of Powers Act, 1947 (Act XVII of 1947). By the said Act emergency powers in relation to land requisitioned under the Defence of India Rules were continued. Requisitioned land was specifically defined to mean an immovable property which at the commencement of the said Act was subject to any requisition effected under the Defence of India Rules. Under section 3 of the said Act of 1947, the requisitioned land continued to be under requisition despite the expiration of the Defence of India Act and Rules framed thereunder.
10. The Act of 1952 was enacted on 14th March, 1952. By section 24(1) of the said Act, the Act of 1947 was repeated. Under section 24(2) it was provided that the property which was under requisition under the repealed Act would be deemed to be the property requisitioned under section 3 of the Act. Initially the Act of 1952 had a fixed life of 6 years which was to expire on 15th March, 1958. The life was extended for a further period of 6 years by Amending Act, 46 of 1963. It was considered that the Act should be made a permanent legislation. Amending Act 1 of 1970 was accordingly made. By the said Amending Act, section 6(1-A) was inserted, which provided that notwithstanding anything contained in section 6(1) the Central Government was obliged to release from requisition the properties on or before the expiration of period of 3 years from the commencement of the Act 1 of 1970. The said Act had come into force from 11th March, 1970. From time to time that period was extended, the last and final instalment of extension was by the Amending Act 20 of 1985 by which the life was extended upto total period of seventeen years expiring on 11th March, 1987.
11. Section 3 of the Act, 1952 contains source of the power of and procedure for requisitioning of an immoveable property for the purpose of the Union. Section 4 deals with the power to take possession of the requisitioned property and section 5 with the rights over that property. Section 5(1) states that the property requisitioned under section 3 shall be used for such purpose as may be mentioned in the notice for requisition. Sub-section (2) states that where any premises are requisitioned under section 3, the Competent Authority may order the landlord to carry out such repairs as may be necessary and are usually made by the landlords and as may be specified in the notice within a reasonable time and if the landlord fails to execute any repairs in pursuance of such order, the Competent Authority may carry out the specified repairs to be executed at the expense of the landlord and its cost may be deducted from the compensation payable to the landlord. Section 6 deals with the subject of release from requisitioning. Sub-section (1) deals with the prerogative of the Central Government to release from acquisition any property and restore the same in the condition in which it was taken subject to the changes caused by reasonable wear and tear and irresistable force. Proviso to the said sub-section casts an obligation on the Central Government to derequisition the property and to release it where the purpose for which the requisitioned property was being used ceases to exist unless the property is acquired under section 7. Sub-section (1-A) mandates the release on or before the expiry of period of 17 years i.e. 11th March, 1987 unless required under section 7. Sub-section (2), section 6 deals with the subject of delivery of possession of the property after derequisition. Sub-section (3) specifies that the delivery of possession under sub-section (2) shall in law be a full discharge of the Central Government from all liabilities in respect of the property subject to certain reserved rights of third party. Sub-section (4) speaks of the manner in which the delivery is to be effected where the original person is not found and he has no agent or other person empowered to set on his behalf. Sub-section (5) states that upon publication of notice under sub-section (4) the property shall be deemed to have been delivered to the rightful person and the Central Government shall not be liable for any compensation in respect of the property or any part thereof. Section 7 contains power of acquisition. Since it is most important, we reproduce the same for ready reference :
'7. (1) Where any property is subject to requisition, the Central Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in pursuance of this section :
Provided that before issuing such notice, the Central Government shall call upon the owner of, or any other person who, in the opinion of the Central Government, may be interested in, such property to show cause why the property should not be acquired; and after considering the cause, if any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Central Government may pass such orders as it deems fit.
(2) When a notice as aforesaid is published in the Official Gazette, the requisitioned property shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Central Government free from all encumbrances and the period of requisition of such property shall end.
(3) No property shall be acquired under this section except in the following circumstances, namely :-
(a) Where any works have, during the period of requisition, been constructed on, in or over, the property wholly or partially at the expense of the Central Government and the Government decides that the value of, or the right to use, such works should be secured or preserved for the purposes of Government; or
(b) Where the cost of restoring the property to its condition at the time of its requisition would, in the determination of the Central Government, be excessive and the owner declines to accept release from requisition of the property without payment of compensation for so restoring the property.
(4) Any decision or determination of the Central Government under sub-section (3) shall be final and shall not be called in question in any Court.
(5) For the purposes of Clause (a) of sub-section (3) 'Works' includes buildings, structures and improvements of every description.'
Section 23 provides for validation of certain requisitions and acquisitions. Section 24 as indicated earlier contains usual repeals and savings clause.
Now, section 7 can be attracted only in case 'the property is subject to requisition' at the time of issuance of show cause notice under section 7. According to the learned Counsel for the petitioners, the property in question was not subject to requisition on 4th September, 1986, it having been derequisitioned as far back as in March 1984 itself. There is no prescribed mode of derequisitioning or releasing the property from requisition. Whether or not there has been release of the property from requisitioning will depend upon the totality of the circumstances. In this connection, the most important piece of evidence is the Government of India's Letter No. D-11031/3/84 - Regions dated 1st March, 1984 which has been referred in communication dated 9th March, 1984 by the Government to the Post Master General, Bombay. This letter is in possession of the Government and its contents are within its special knowledge. Time and again the petitioners had requested for supplying either its xerox copy or for its inspection. The respondents have chosen to be blissfully silent. This is the position even before this writ petition was filed. This petition is pending for last 7 years. 3 years before an affidavit has been filed by 2nd and 3rd petitioner incorporating a photostate copy of the letter dated 9th March, 1984. There is no counter-affidavit. The contents of the said affidavit have not been so far controverted. During the course of hearing of this petition also, which was spread over number of days it has not been produced on record despite suggestion to that effect. Mr. Rana, the learned Counsel for the respondents has expressed his inability to produce the same. Under these circumstances adverse inference for non-production has to be drawn against the respondents, but it is not necessary to base this judgment only on that inference. The letter dated 9th March, 1984 is clear and leaves no manner of doubt that a decision to release the property from requisition was not only taken but was also communicated to the authorities with a direction to make arrangement for the second step of delivery of possession. There is a clear cut direction to vacate the premises within three months of the receipt of the said letter and to make alternative arrangement. It is on the basis of the above direction that the Senior Superintendent of Post Offices, Bombay City, communicated to the petitioners its desire to continue to occupy the property even after the release and called for the Terms and Conditions for such occupation. Urgency was indicated by stating that the matter had to be thrashed out before end of May 1984. In the letter of the Government there is a reference not only to the property in question but also to the property in Anand Bhavan. Undisputed position is that thereafter possession of Anand Bhavan property has been handed over to the respective owners. The petitioners carried on correspondence for number of years for delivery of the possession of the property but there was no response. In this background the conclusion is inevitable that the property was released from requisition in March 1984 and all that had remained was the second stage of delivery of possession under sub-section (2) of section 6. Consequently it cannot be said that the property was subject to requisition on the date of issuance of notice under section 7 and hence the notice must fall to the ground only on that count.
12. This takes us to the second contention. In the case of Union of India v. Hari Krishna Khosla, : 1992(2)SCALE621 , the Supreme Court had occasion to consider the background and the scheme of the Act. It was observed :
'28. .......During the World War, lands and buildings were requisitioned under the Defence of India Act, 1939 and the rules made thereunder. These properties continued to be subject to requisition under the Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947). However, this Act was to expire on March 31, 1952. With regard to the property outside the Delhi area Government of India had no power to requisition. In some cases, the States were asked to requisition the property for the purpose of the Union. A judicial decision held that the exercise of the State power for the purpose of the Union would not be proper. Finding that a large number of houses in the various cities of India had been requisitioned for Central Government purposes it was considered necessary to have an Act empowering the Central Government to requisition and acquisition. For this purpose, Requisitioning and Acquisition of Immovable Property Ordinance, 1952 (3 of 1952) was promulgated. This Ordinance was replaced by the Act.
30. Under section 7, the requisitioned property could be acquired, if the Central Government is of the opinion that it be so acquired for a public purpose. Sub-section (3) of section 7 lays down certain embargoes on the exercise of the power. This sub-section contains two clauses. Under clause (a) where works have been constructed during the period of requisition, which works require to be secured or preserved for the purpose of Government; while under clause (b) it is provided that the cost of restoration of the property would be excessive.
31. Thus, it is not in every case the requisition is or can be resorted to.
58. We are of the firm view that cases of acquisition of land stand on a different footing than those where such property is subject to a prior requisition before acquisition.
64. ..... Equally, to hold, as the High Court does, that the property requisitioned under the Act can be acquired under the Land Acquisition Act, does not seem to be correct. We have already pointed out how the power of Eminent Domain comes to be exercised under the Land Acquisition Act and how an acquisition under this Act is subject to the statutory embargo unless there is a derequisitioning of the immovable property and separate proceedings are taken under the Land Acquisition Act, there is no possibility of acquiring the property under the Land Acquisition Act.'.
13. It is thus apparent that acquisition under section 7 cannot be even for a public purpose in the absence of either of the two circumstances mentioned in Clause (a) or (b) in sub-section (3). Existence of any one of these circumstances is a condition precedent for the acquisition. No decision making process would be valid without applying mind to embargoes embodied in sub-section (3) and thereafter taking a decision on these aspects. This decision could not be taken without hearing the owner which inevitably means requirement of mentioning the particulars and the circumstances in the show cause notice upon which the Government wants to rely, for without those particulars the owner can really show no cause. The impugned show cause notice is blissfully silent on these circumstances. It is apparent that the Competent Authority was completely oblivious to sub-section (3) and thus it is a clear cut case of non-application of mind to the legal provisions under which the notice was issued. The Competent Authority himself did not bother to examine the circumstances embodied in sub-section and hence there was no question of hearing the petitioners on those points. Nothing else explains this vague and incomplete show cause notice. Even if the Competent Authority can be said to be aware of the legal requirement the notice could not be said to be in accordance with law unless they were indicated in the notice. In their absence no hearing on the issue was possible. In the case of M/s. New Samundri Transport Co. (P) Ltd. v. The State of Punjab & others : [1976]2SCR218 , action of cancellation of permit under the Motor Vehicles Act for breach of condition, based on a show cause notice giving no particulars regarding the alleged breach, was held to be invalid in law being in violation of principles of natural justice. In the case of Nasir Ahmed v. Custodian General, Evacuee Property, U.P., Lucknow and others : [1980]3SCR248 , it is laid down that it was essential to state the particulars in the show cause notice to enable the party to answer the ground sought to be held against him and in its absence the notice as well as the whole proceedings are vitiated. The principles enunciated in the above decisions apply to the matter at hand.
14. Mr. Rana contended that sub-section (3) does not enumerate the conditions precedent to the acquisition but they enumerate only the fetters on the powers of the Central Government and hence the absence of those circumstances in the show cause notice does not render the notice invalid. According to him the petitioners were free to ask for particulars, to participate in the enquiry and in the enquiry show that none of the conditions exist. We are unable to endorse this line of reasoning. Show cause notice is not a mere formality. It has a purpose, viz., to indicate to the owner as to how according to the Competent Authority the property could be legally required and what the owner of the property had to say on the subject. No doubt the Government is empowered to take decision on the matter but that does not dispense with the requirement of hearing the owner and oportunity to him to show the proposed decision would be against the letter and spirit of the relevant sub-clauses.
15. In support of the contention that the circumstances enumerated in sub-section (3) are not required to be stated with the show cause notice, the learned Counsel for the respondents invited our attention to a decision of the learned Single Judge of this Court in Misc. Petition No. 316 of 1955 decided on 13th July, 1955 in the case of Nauzer Kaikhushroo Kanga & another v. Union of India & another. We see nothing in this decision which renders any help to the respondents' stand point. That was a case pertaining to an order of requisition under section 3 of the Act of 1947 in respect of the property requisitioned in 1942 under the Defence of India Rules. Two points were raised : (1) that the specific period of requisition had come to an end and the order had exhausted itself, (2) that upon the original purpose of requisition coming to an end, the requisition comes to an end. In view of the decision of the Supreme Court in The Dominion of India & another v. Shirinbai A. Irani & another : [1955]1SCR206 , the first point was held concluded against the petitioners. On the second point, it was held that Rule 75-A(2) of the Defence of India Rules confers widest jurisdiction to use the required property in any manner which means even if the original purpose comes to an end the property can be used for any other purpose. Ordinance of 1946 and Act of 1947 provide for continuation of original power which means not only extension of life of requisition but also use in any other manner. Under section 3 which gives the power to use the property for any public purpose, the properties are deemed to be requisitioned afresh. It is in the above context that it was held that the requisition order had not become bad only on the ground that the purpose was not set out in the order. We are unable to see how the ratio of that decision can have relevance to the matter before us. Thus the second contention is also devoid of merit.
16. All that survives for consideration is the last contention viz., whether 'works' have been constructed over the requisitioned property during the period of requisition and their value or right to use need to be secured or preserved for the purpose of Government as contemplated under sub-clause (a) of section 7(3). It is common ground that Clause (b) is not attracted. The expression 'works' has been given a special meaning by sub-section (5) as including building, structure and improvement of every discreption. In the instant case alleged works are wooden removable partitions usually used in a post office and an iron safe embedded in cement concrete by the side of a concrete pillar. We do not think that legislature intended to include such insignificant construction within the concept of 'works'. In the first place they are not 'works' and in the second place their nature is not such as their value and right to use them have to be secured or preserved for the purpose of the Government. The objects and reasons for making the said provisions was that on many requisitioned properties valuable construction connected with the defence or other important public purpose had been put in and it was thought that in an appropriate case the Government should not be forced to remove them and indeed should be authorised to retain them in public interest.
17. What is the concept of 'works' as envisaged by sub-section (5) in the context of sub-section (3) in particular and the whole scheme in general? The point is no more res integra having been concluded by decision of a Single Judge of this Court in the case of Mrs. India Bhalchandra Gokhale v. Union of India and another : AIR1990Bom98 , which has been confirmed by a Division Bench in Letters Patent Appeal No. 4 of 1990 decided on 15th January, 1990 Union of India v. Mrs. indira B. Gokhale. It was a decision under section 36(1) of the Defence of India Act which is in pari materia with section 7(3) of the Act. The point was whether wire fencing put on the property was 'works'. Answer given was in the negative. Reasons given - with which we entirely agree - are :
'Applying above to the expression `works' occurring in section 36 of the Act we first have an indication of the intent behind the acquisition. The intent is that the Government should not be put to unnecessary expense. Under Clause (a) of section 36(1) of the Act it is permitted to acquire property requisitioned for the works carried out by the Government during the period of requisition may be of such value as not to permit the same to be wasted by the need to return the property after the requisition comes to an end. Counsel for the respondents contends that the value can be gauged from the value of the property intrinsically or that value which it confers by virtue of the right to use vested in the acquiring Government. This would be to give an entirely artificial meaning not in consonance with the statute. Sub-section (5) of section 36 of the Act shows that the general word 'works' is limited to something material in the sense of buildings, structures and such like improvements. Merely fencing a vacant plot of land may increase that land's value for the purpose of a parade ground or drill land. But this is not within the expression 'works'. In the context in which sub-section (5) is placed the word 'works' will have to be given a limited meaning as something akin to buildings and structures. Now a fencing is not a work in that sense.'
The above decision also high lights that the acquisition has to be justified under either of the two clauses.
18. The learned Counsel for the respondents contended that the use of the words `include', `improvement' and `every discreption' indicate that wide meaning was intended to be given to the words and any improvement irrespective of its extent and character is brought within the sweep of the provision. We do not agree. Principles of elude generis will have to be applied and the whole context will have to be seen. It is true that in a given case even a temporary construction may fall within the `works' as held in Nauzer Kaikhushroo Kanga's, case (supra) but that is beside the point. This contention must also therefore fail.
19. We may in the parting reproduce the following significant observations relating to prolonged and indefinite retention of requisitioned property made by the Supreme Court in the case of H.D. Vora v. State of Maharashtra : [1984]2SCR693 .
'Here in the present case the order of requisition was made as far back as 9th April, 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person; it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made, the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years'.
20. In the circumstances the petition is allowed with no order as to costs. The impugned notice is quashed and set aside and the respondents are directed to deliver vacant possession of the property within 6 months from today.
21. As far as relief of compensation is concerned at the request of the learned Counsel for the respondents, matter is adjourned to 4th March, 1994 to enable the parties to make a proposal, if possible, by consent.