R.C. Lahoti, J.
(1) This order shall govern the disposal of Cwp Nos. 1420/94 and 2309/94. The property forming subject matter of the two petitions is main building of the property bearing No.4, situated at Keeling Road, now known as Tolstoy Marg, New Delhi (hereinafter - the said property, for short). At one point of time the rights in the property vested in late Shri Ballabdas Aggarwal. On his death the rights have devolved upon Rajiv Kumar Aggarwal, Shakuntala Devi Aggarwal, Govind Dass, Gopal Das and Venktesh Das Aggarwal.
(2) The facts in so far as relevant for the disposal of the two petitions lie in a narrow campus and are not in controversy.
2.1The said property was requisitioned on 24.2.77 in exercise of the power conferred by Section 3 of The Requisitioning and Acquisition of Immovable Property Act, 1952 (hereinafter referred to as- 'the Act', for short). It was placed at the disposal of Ministry of Information and Broadcasting, New Delhi. Possession was taken over on 15.3.77.
2.2On 12.3.94, the. Collector Delhi Administration, (the respondent No.2.) has issued a notice (Annexure-VII) which reads as under :- (See Rule 8) Whereas the Central Government is of opinion that the property described in the Schedule hereto annexed which is subject to requisition should be acquired for a public purpose, namely :- Office of Satellite Channel of Doordarshan Now, thereforee, in exercise of powers conferred by sub-Section (1) of Section 7 of the Requisition & Acquisition of Immovable Property Act, 1952, the Central Government do hereby call upon Shri Rajiv Kumar Agarwal R/o. 4, Tolstoy Marg, New Delhi being the owner o the said properly to show cause within fifteen days of the date of service of the notice upon him why the said property should not be acquired. Schedule 4, Tolstoy Marg, New Delhi Sealed/- COLLECTOR:DEL Shri Rajiv Kumar Agarwal, R/o.4, Tolstoy Marg, New Delhi. Service of the notice has been affected by affixture on 13.3.94.
2.3According to the petitioners the said notice came to the knowledge of the petitioners on 15.3.94. On 12.3.94 the petitioners had sent a telegraphic notice to the respondents No.1 & 2. to deliver back possession over the said property on 15.3.94, on the expiry of the period of requisitioning.
2.4Further according to the petitioners, the period of requisitioning came to an end w.e.f.l5.3.94, on expiry of a period of 17 years with effect from the date on which possession over the said property was taken over by the respondents No. 1 & 2. Till that date the property was not acquired by the respondents No. 1 & 2. They are thereforee obliged to vacate possession of the property and deliver it over peacefully back to the petitioners.
(3) Cwp 1420/94 has been filed on 24.3.94 by Rajiv Kumar Agarwal impleading (i)Union of India through the Secretary Ministry of Information of Broadcasting and (ii) the Collector Delhi Administration as the respondents No.1 & 2 and (iii)Shakuntala Devi, (iv)Govind Dass, (v)Gopal Das and (vi)Venktesh Das Agarwal as proforma. respondents No.3 to 6 seeking quashing of the notice dated 12.3.94 with a further direction to restore back vacant and peaceful possession over the requisitioned property to the petitioner and the respondents No.3 to 6.
(4) Cwp No.2309/94 has been filed by (i)Govind Das, (ii)Gopal Das and (iii)Venktesh Das Agarwal on 20.5.94 impleading (i)the Secretary and (ii)the Collector, the same respondents as respondents No. 1 & 2, also impleading (iii)Shakuntala Devi Agarwal and (iv)Rajiv Kumar Agarwal as proforma respondents No.3 & 4. In this petition, the petitioners have sought for the quashing of the notice dated 12th March, 1994, a writ or mandamus commanding respondents No.1 & 2 to restore possession over the said property to the petitioners and respondents No.3 and 4. In addition they have also sought for a writ of mandamus commanding the respondent No.2 to pay rent at market rate of the aforesaid property to the tune of Rs.l4 lacs per month till the date of restoration of possession to the petitioners and the respondent No.3 &4.
(5) According to the respondents No.1 & 2, the notice dated 12.3.94 itself amounts to 'acquisition of the property' by the respondents No.1 & 2 and thereforee the question of restoring back the possession over the property does not arise. It is also submitted that possession of the respondents No.1 & 2 over the property cannot be deemed to be unauthorised so as to hold them liable to pay rent at market rate to the petitioners.
(6) Two questions arise for decision in the petition : firstly, whether on expiry of the period of 17 years from the date of taking over of the possession over the said properly by the respondents No.1 & 2, the respondents are obliged to vacate the property and hand over possession to the petitioners for their failure to acquire the property within the said period of 17 years; secondly, whether the petitioners are entitled to compensation by way of rent calculated at the market rate and if so, the form of relief.
(7) We have heard Mr. V.P.Singh, Sr. Advocate and Mr. Arun Jaitely, Sr. Advocate respectively for the two sets of petitioners as also Mr. Verghese, the learned counsel for the Central Government and Delhi Administration.
(8) The provisions relevant for the purpose are Sections 6 and 7 of the Act (as amended by Act No.20 of 1985), which are extracted and reproduced hereunder :-
'6.Release from requisitioning
(1)The Central Government may at any time release from requisition any property requisitioned under this Act and shall as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force: Provided that where the purposes for which any requisitioned property was being used cease exist, the Central Government shall, unless the property is acquired under Section 7 release that property, as soon as may be, from requisition.
[(1A)Notwithstanding anything contained in sub-section (1), the Central Government shall release from requisition-
(A)any property requisitioned or deemed to be requisitioned under this Act before the commencement of t Requisitioning and Acquisition of Immovable Property (Amendment) Act, 1970, on or before the expiry of a period of ] seventeen years] from such commencement:
(B)any property requiting under this Act after such commencement, on or before She expiry of a period of [seventeen years] from the date on which possession of such properly was surrendered or delivered to or taken by, the competent authority under section 4. unless such property is acquired under Section 7 within the period of [seventeen years] aforesaid.
(2)Where any properly is to he released from requisition [under sub- section (1) or sub-section (1A), the competent authority may after such inquiry, if any, as it may in any case consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the property shall be given and such possession shall, as far as practicable, be given to the person from whom possession was taken at the lime of the requisition or to the successors-in- interest of such person.
(3)The delivery of possession of the property to the person specified in an order under sub-section(2) shall be a full discharge of the Central Government from all liability in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is given.
(4)Where any person to whom possession of any requisitioned properly is to be given is not found and has no agent or other person empowered to accept delivery on his behalf, the competent authority shall cause a notice declaring that the property is released from requisition to be affixed on some conspicuous part of the property and shall also publish the notice in the Official Gazette.
(5)When a notice referred to in sub-Section (4) is published in the Official Gazette, the property specified in such notice shall cease to be subject to requisition on and from the dale of such publication and shall be deemed to have been delivered to the person entitled to possession thereof and the Central Government shall not be liable for any compensation or other claim in respect of the property for any period alter the said date.
(6)Where any property requisitioned under this Act or any material part thereof is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was requisitioned by reason of Fire, earthquake, tempest, flood or violence of any army or of a mob or other irresistible force, the requisition shall at the option of the Central Government, be void:
PROVIDED that the benefit of this sub-section shall not be available to the Central Government where the injury to such property is caused by any wrongful act or default of that Government.
7.Power to acquire requisitioned property
(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 properly by publishing in the Official Gazette a notice to the effect that the. Central Government has decided to acquire the property 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 properly 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 a.s aforesaid is published in the Official Gazette, the requisitioned properly 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 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 properly without payment of compensation for so restoring the property.
(4)Any decision or determination of the Central Government under subsection (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.'
(9) The scheme of the Act shows that power-is conferred under Section 3 on the competent authority to requisition any property, indeed for any public purpose, being a purpose of the Union, subject to previous notice and opportunity of hearing to the owner or any other person in possession of the property. Possession over requisitioned property has to be surrendered or delivered by the owners and persons in possession, failing which it may be taken over by the competent authority, who may if necessary use force. The requisitioned property has to be used for the purpose as mentioned in the notice of requisition. The requisitioned properly may at any time be released from the requisition by the Central Government. We need not notice the provisions relating to payment and determination of compensation relating to the requisitioned property for the period for which requisition remains in operation, as they are not relevant here.
(10) A conjoint reading of Sections 6 and 7 reveals that if the discretionary power to release from requisition is not. exercised earlier by the Central Government then the Central Government is mandatorily obliged to release the properly from requisition on or before the expiry of a period of 17 years from the date of commencement of the Amendment Act of 1970 if the property was requisitioned before the commencement of the Amendment Act which is not the case here. In the case at hand the property having been requisitioned after the commencement of the Amendment Act of 1970 it has to be released on or before the expiry of a period of 17 years from the date on which the possession was surrendered or delivered or taken. The date of such mandatory release from requisition would be 15.3.94 the possession having been delivered over the said property on 15.3.77 pursuant to the requisition. The provision as to release of the properly from requisition may not come into play if only the property stands acquired under Section 7 within the said period of 17 years.
(11) Power to acquire property contemplated by Section 7 of the Act is independent of the provisions contained in the Land Acquisition Act, 1894. In order to acquire the property under Section 7, the following steps shall have to be taken :-
(I)a notice to acquire the property for a public purpose has to be published in the official gazette incorporating decision of the Central Government to acquire the property;
(II)the issuance of such notice must be preceded by an opportunity of hearing having been afforded to the owner or any other person interested in such property to show cause against the proposed acquisition;
(III)one of the two situations contemplated by Clauses (a) and (b) of Sub-Section (3) of Section 7 must exist.
If the above said pre-requisites are satisfied then the decision and the determination of the Central Government to acquire the property is final and not open to question in any Court. In as much as publication of the notice of acquisition in the official gazette has to take place within the period of 17 years above said the process of formation of opinion by the Central Government as also of affording hearing to the owner and/or the person interested has to commence and take place a reasonable time before the expiry of the said period of 17 years. If the Central Government defaults in publishing the notice of acquisition and allows the period of 17 years to elapse then the Central Government becomes functus officio so far as the acquisition of the property for a public purpose is concerned.
(12) If the publication in the official gazette of the notice of acquisition is not preceded by an opportunity of hearing as contemplated by the proviso to sub-section (1) of Section 7 and is not also preceded by formation of opinion contemplated by the twin clauses of sub-section (3) of Section 7 of the Act then the notice of acquisition published in the official gazette would be bad. it is well settled that a statutory power must be exercised in the manner contemplated by law or nut at all. So also if a statutory power to be valid must stand on the foundation of pre-existing factors then nonavailability of such pre-existing factors would entail fall to the ground of the power sought to be exercised.
(13) In Hakum Chand Shyam Lal VS . Union of India & Ors,, : [1976]2SCR1060 , their Lordships have held :-
'It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this. rule where power is of a drastic nature and its exercise in a mode other than the one provided will he vocative of the fundamental principles of natural justice.'
(14) It is true that Section 7 does not. provide any limitation of time by or up to which the Central Government may exercise its power to acquire a properly forming subject matter of requisition, it empowers the Central Government to 'at any time acquire such property'. Section 6 provides and sub-section (1A) thereof casts a mandatory obligation on the Central Government to release from requisition such property on an expiry of the prescribed period unless the requisitioned property was acquired within the said period. Sections 6 & 7 have to be read together and harmoniously construed. So read and constructed the power to acquisition a requisitioned properly, conferred on the Central Government by Section 7 of the Act can be exercised only if (i) the prescribed period (of 17 years) has not elapsed, and (ii) on the date of exercise of power the properly remains a property under requisition.
(15) Requisition comes to an end on expiry of the period of requisition and can in no case be extended beyond the prescribed period (of 17 years). On the expiry of the said period the only thing that remains to be done is the performance of statutory obligation of the Central Government to restore back the possession to the person from whom it was taken. The Central Government cannot by its own default allowed to extend the period of requisition and thus take advantage of its own wrong or failure to take timely action. To put it briefly, on lapse of period of requisition the character of the property ceases to be a requisitioned properly whether or not the possession has been restored back. Any other construction would render nugatory the provision contained in Section 6, specially sub-section (1-A) thereof.
(16) Possession over the said properly having been delivered on 16.3.77, the period of acquisition to an end on 15.3.94 with the expiry of the period of 17 years as statutorily provided. The Central Government could have exercised the power of acquisition on or before 15.3.77. Admittedly, the notice of acquisition has not been published in the official gazette till this day, not to talk of its having been published on or before 15.3.94. The notice Annexure-7 is a notice issued by the Collector, Delhi Administration to the owners of the property whereby they have been called upon to show cause against the proposed acquisition within a period of 15 days from the date of service of the notice. The notice was served by affixture on 15.3.94, the date on which power to acquire would come to an end and the period of requisition would expire. The persons noticed would have a period of 15 days at their disposal for showing cause against the proposed acquisition. Notice of acquisition could not have been published in the official gazette without waiting for the expiry of the said 15 days and by the time the 15 days would come to an end, the Central Government would have become powerless to acquire the property under Section 7 of the Act.
(17) Nothing has been brought on record to suggest if any of the two situations contemplated by sub- section (3) of Section 7 exists and if the Central Government has formed it's opinion thereon. Thus the notice dated 12.2.94 has been rendered an exercise in futility and no action can be taken thereon. The respondents No. 1 & 2 are now statutorily obliged w.e.f.l5.3.94 to restore peaceful and vacant possession over the requisitioned property to the petitioners. Their possession over the property after 15.3.94 is unauthorised and they are liable to compensate the petitioners for their remaining in unauthorised possession is unauthorisedly of the property. Possession is unauthorised not only when it is taken unauthorisedly to begin with but also when the person in possession having secured it in a manner authorised by law continues in possession after he has ceased to have authority in law to hold or continue in possession of the property.
(18) The learned counsel for the respondents tried to support the action of the respondent Nos. 1 & 2 by submitting that the notice dated 12.3.94 (Annexure-VII) by itself amounts to an acquisition of the property and the notice having been issued and served before the expiry of 17 years nothing more remains to be done by the respondents No.1 & 2 and the property would be deemed to have been acquired and the possession of the respondents No.1 & 2 would be authorised. This contention is wholly devoid of any merit. A bare reading of Section 7 shows that notice to the owners and notice of acquisition to be published in the official gazette are two distinct things and the former has to precede the later. Notice 'to show cause against proposed acquisition', which the notice (Annexure-VII) is, does not and cannot amount to 'notice of acquisition' published in the official gist. Even the notice dated 12.3.94 (Annexure- VII) was not published in the official gazette. It cannot by any stretch of imagination be called a 'notice of acquisition'.
(19) The learned senior counsel for the petitioners have rightly relied on the following observation made by the Supreme Court in para 30 of Mahendra Lal Jain VS . State of Uttar Pradesh & Ors., : AIR1963SC1019 :-
'A notification under Section 4 of the Forest Act is required to be published in the Gazette and unless it is so published, it is of no effect.'
(20) So also, as we have already stated, a notice of acquisition could not have been published unless preceded by formation of opinion by the Central Government under sub-Section (3) of Section 7 of the Act and there is no material available on record to hold such opinion having been formed by the Central Government at any point of time. The effort of the learned counsel for the respondent Nos.1 & 2 to defend their continuance of possession over the said property as authorised must fail.
(21) The next question to be examined is to what relief the petitioners are entitled in the matter of compensation and the mode in which it can appropriately be left to be determined.
(22) The learned counsel for the petitioners have submitted placing reliance on Assam Sillimanite Ltd. & Am. VS . Union of India & Ors., : [1990]1SCR983 ; Banwari Lal & Sons Pvt.Ltd. VS. Union of India & Ors., Drj 1991 (Supp.)317that this Court may itself appoint an arbitrator to assess the quantum of compensation to be awarded by the respondents No.1 & 2 to the petitioners. The authorities relied on by the learned counsel for the petitioners do support their contention. However, we may take note of and place on record an additional fact which would accelerate formulation of an appropriate relief to the petitioners. Compensation in respect of requisitioned property is determined under Section 8 of the Act. If not determined by agreement, the same is liable to be determined by an arbitrator to be appointed by the Central Government. So is the case with the revision in quantum of compensation. In respect of the said property the Central Government had failed to appoint an arbitrator for determining the revision of compensation under Sub- Section (2A) of Section 8 of the Act. Cwp 4624/95 was filed for the purpose which has been disposed of by an order dated 16.5.96 passed by us. The Central Government has been directed to appoint an arbitrator in accordance with Sub-Section (2A) of Section 8 of the Act within a period of six weeks from the date of the order. It would be. appropriate, just and convenient if the question of determining the quantum of compensation payable for the period commencing after 15.3.94 and expiring with the date of delivery of possession is left to be determined by the same arbitrator. This would avoid multiplicity of legal and judicial proceedings.
(23) For the foregoing reasons both the petitions are allowed and disposed of in terms of the following directions :-
(I)the respondents No.1 & 2 are directed to deliver vacant and peaceful possession over the said property to the petitioners on or before 31.12.96 in accordance with Sub-Section (2) of Section 6 of the Act;
(II)the arbitrator appointed by the Central Government in accordance with the directions given in judgment dated 16.5.96 passed in Cwp 4624/95 shall also determine the compensation payable by the Central Government respondent No.1 to the petitioners in respect of the said property for the period commencing 16.3.94 and expiring with the date of actual delivery of possession by the respondents No.1 & 2 to the petitioners.
(24) Costs in the two petitions shall be borne by the parties as incurred.