Kakru, J.
1. Salient facts are that an area measuring 3879 kanals and 12 marlas situated at villages Karwah, Damodhar, Kralpora and Wathora, TehslI and District Budgara, has come under occupation of the Army onwards 1952. Subsequently requisitioned against the rental compensation under the provisions of the Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act 1968 (for short the Act). The recommendation made by the Board of Officers for acquisition of the area aforementioned has prompted the petitioners to seek a writ of mandamus to place the Union under a direction to take a decision with regard to the proposed acquisition and in the alternative, eviction of the Army.
2. The writ petition came up for consideration and Mr. Anil Bhan appeared in compliance to the directions of the Court. The stand taken by him is stated by the Court in its Judgment and the relevant portion of the order is reproduced :
'Mr. Bhan, Sr. CGSC has admitted that the acquisition proceedings have been Initiated and completed and have been sent to the Ministry of the State Defence.'
3. On the basis of the statement so made, the writ Court observed :
'so there is no controversy except thatcompensation is not being paid to the petitioners for a long time.'
4. In this background, writ petition came to be disposed of with the following direction:
'Respondents are directed to complete the process of acquisition in accordance with the provisions of law and the payment of compensation be made to the petitioners in accordance with the rules, the same be done within three months from the date of receipt of this order.'
5. The direction of Learned single Judge is impugned through this LPA on manifold grounds, which have given rise to several contentious issues and at the very outset we would like to deal with the alleged incorrectness of the statement and alleged incompetence of Shri Anil Bhan to make it. In this behalf it is apposite to notice that the appellants do not only challenge his right and power to make a statement but even veracity of the statement is disputed and to counter the stand of the appellants Shri Anil Bhan has caused appearance of his own submitting that he was justified to make the statement on the basis of recommendation of Board of Officers forming Annexure to the writ petition. Elaborating further, he submitted that he meant to say that recommendation for initiating acquisition proceedings were completed, that is why Court directed the respondents (appellants herein) to complete the process of acquisition. He has also contended that in the capacity of Senior Central Government Standing Counsel (for short Sr. CGSC) he holds the charge of all the cases filed against the Union of India and has the power to make such statement Shri. S.A. Naik has controverted the contention of Shri Anil Bhan and submitted that an Advocate of Shri Anil Bhan's standing is expected to be fully aware of the legal position that a recommendation of the Board does not tantamount to acquisition of the property, therefore, the statement is totally incorrect. He has further submitted that Shri Anil Bhan has made the statement on the basis of opposite party's version besides unsigned copy of recommendation forming Annexure to the writ petition and has acted in gross violation of the judicial pronouncement handed down by the Apex Court in periyar and Pareekani Rubbers Ltd. v. State of Kerala reported in AIR 1990 SC 2192 (para 9 at page 219) in which the Court held :
The High Court.......Any concession madeby the Government advocate in the trial Court cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsibility....'
6. The judgment supra places a restraint on the government advocate other than the advocate General from extending a concession unless he has the instructions from the responsible officer and on the strength of the mandate of the judgment, it is canvassed that neither written nor verbal instruction were given to Shri Bhan, therefore, the statement is without any lawful authority and cannot bind the appellants. It is further contended that the statement has on the one hand created a liability of more than fifty five crores and eighty four lacs and on the other hand, it has entangled the Union in an avoidable litigation which has even reached the Apex Court resulting in undue burden on the exchequer. Shri Naik has attempted to persuade us for returning a judicial finding regarding the conduct of Shri Anil Bhan and while doing so he has vehemently submitted that he is under instructions from his clients to plead so, with a view to rule out recurrence of such events so that the exchequer is not made to suffer at the hands of an Advocate. So much so the appellants have voluntarily produced a few documents accompanying communication bearing No. PEND/204/ECQ/Court/84 dated 30-7-1999 to show that an inquiry has been initiated against Shri Anil Bhan. We have gone through the reply of Shri Anil Bhan, in which he has stated that the statement was made by him on the instructions of a representative of the Department namely Shri Fayaz Ahmad. Here we cannot resist an observation that a standing counsel has the power to make a statement provided such right is specifically conferred on him, be it through a power of attorney or in pursuance to the written instructions from a responsible officer, and Shri Anil Bhan having taken a stand that he had the required instructions from Shri Fayaz Ahmad, it becomes imperative to find out as to what post and position Shri Fayaz Ahmad holds in the Department? Had Shri Fayaz Ahmad given the instructions? Was he competent to issue the instructions? All these questions call for a roving inquiry which stands initiated by the appellants, therefore, we are reluctant to take upon ourselves to return a finding in respect of the controversy so raised, leaving the appellants free to deal with the matter.
7. We now deal with the contention of the learned counsel for the appellants that no acquisition proceedings even worth the name have been initiated as on to date and this argument has raised the following question :
(a) When acquisition can be said to have commenced under the J & K Requisitioning and Acquisition of Property Act, 1968.
In this behalf it is canvassed that when the facts reveal otherwise presumption of correctness in respect of statement made by a counsel cannot work as an impediment in the administration of justice. It is further contended that the facts of the case establish that stage of acquisition proceedings is yet to surface and absence of acquisition proceedings vitiates the statement of the counsel which has the effect of rendering the order impugned liable to be quashed. How far this argument is going to help the appellants, shall have to be seen in the light of the language of Sub-section (1) of Section 7 of the Act, which is reproduced hereunder :
'7. Power to acquire requisitioned property : (1) Where any property is subject to requisition, the 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 Government Gazette a notice to the effect that the Government had decided to acquire the property in pursuance of this section.....'
8. A plain reading of Sub-section (1) of Section 7 reveals that the power to acquire the requisitioned property vests with the Government but condition precedent is that acquisition must be for the public purpose and when the Government decides to acquire the property, the decision has to be made public through a mode envisaged under Sub-section (1) of Section 7. This section casts an obligation upon the Government to publish a notice inthe Government Gazette. Whether notice has been published in the case in hand, the assertions made in the writ petition assume significance and having gone through the writ petition, we don't find even a whisper which would suggest issuance of the notice. Yet as a matter of abundant caution, we asked Shri P. Imroz to refer to any document which in his wisdom and knowledge could suggest that the acquisition proceedings have been initiated but responding to the query, he did not dispute the absence of the acquisition proceedings as on to date, which fact is manifest even from averments made in the writ petition. Thus the admitted position being that notice under Sub-section (1) of Section 7 has not been issued, therefore, acquisition proceedings have not commenced. We say so, because the tenor and text of the section reveals that in law the acquisition proceedings can be said to have commenced only when notice under Sub-section (1) of Section 7 is published in the Government Gazette. Short of notice presumption of commencement of acquisition proceedings is not permissible under law. Question is answered accordingly.
9. We would like to make a mention that we would not have hesitated to send for the records from the authorities concerned so as to find out as to whether the acquisition proceedings have been initiated because we are alive to the practice of the counsel appearing for the Government, who generally do make statements which prompt the Court to adjudicate upon the matters without calling for returns manly on the presumption of fairness of the counsel but it cannot be ruled out that at times such statements may be made without consulting the Government and if the statement effects the rights of the Government adversely, the Government is within its right to bring the actual facts to the notice of the Court, be it through appeal, review or any other course whichever permissible under law but it is neither proper nor possible for the Court to interfere into the matter on the mere asking of the Government or its functionaries and no indulgence is possible and permissible unless there is sufficient cause available for such interference which may include cases where statements confer benefits which have the effect of creating liability on the State exchequer without instructions from the Competent Authority and sufficiency of cause can bepresumed on the strength of the facts of the case. We may hasten to add that we cannot determine the standards and reasons of the sufficient cause because every case has to be examined on its merits but in all circumstances the aggrieved party must approach the Court with clean hands in right earnest and with a reasonable explanation. Coming to the factual aspects of this case, an in-depth examination reveals that the order impugned has been passed on the assumption that acquisition proceedings have been initiated and completed, whereas, the fact remains that the proceedings in terms of Section 7 of the Act have not been even initiated, completion apart. Here a question arises as to whether respondents/appellants can be held responsible for any inaction or dereliction but the answer is bound to be in negative, for, it is nobody's case that the appellants had at any point of time instructed Shri Bhan to make the statement in question, which fact is further amplified by the statement made before us by Shri Bhan who has not attributed the instructions to the respondents/appellants, but to one Shri Fayaz Ahmad who is not in the array of respondents/appellants. In so far as appellants are concerned, we find from the record that they have lost no time to take the legal action, that too, swiftly. These facts depict that their hands are clean and have approached the Court with a plausible explanation. More so, the fallout being creation of liability, which runs in crores, nothing shall prevent the Court in the given circumstances to intervene in the public interest and we hold that statement of Shri Anil Bhan shall not bind the appellants. The natural consequence is that the presumption, which has originated from the statement of the counsel is debased, consequently, the impugned order is rendered liable to be set aside.
10. The respondents have sought a writ on the basis of a proposal made by the Board of Officers recommending the acquisition of the property and the question arises :
Whether the recommendation made by the Board of Officers binds the appellants to acquire the property under the Act?
To appreciate the issue in its right perspective, it is relevant to notice that the Government is within its powers to go for acquisition of the requisitioned property but before coming to a conclusion to acquire or not to acquire a particular property, it isboth permissible and desirable for the Government to make an exercise so as to arrive at a conclusion as to whether the acquisition is necessary for a public purpose and the Government can entrust such exercise to an officer or the Board of Officers. When the exercise is entrusted, the Board has to say something, be it for or against the acquisition. It can also make recommendation and the recommendation so made is simply an exercise of opinion made by the officers of the Board, which has to be considered by the Government while taking a decision to acquire or not to acquire. The mere fact that the recommendation has been made by the Board of Officers does not divest the Government of the power to take a derision one way or the other. Thus, we are of the opinion that the recommendation made by the Board of officers for acquisition cannot bind the Government to acquire the property.
11. Now coming to the arguments of the writ petitioners (respondents herein). Mr. P. Imroz appearing for them contended that the appellants have not disputed the fact that the property in question has been under their occupation since 1952. subsequently requisitioned, therefore, on the basis of longevity of occupation, his endeavour is to prompt us to draw an inference that it tanamounts to acquisition. This argument calls for interpretation of expressions 'requisition' and 'acquisition' in relation to a property, which falls within the ambit of the Act. The distinctive nature and character of these expressions admit no ambiguity. The requisition of the property divests the proprietor of the domain and control temporarily, whereas, the acquisition of the property has the effect of alienating the title, besides proprietory and possessory rights to the acquirer and the owner is totally divested of the right of ownership, Both these modes, requisition and acquisition are permissible under the Act. Obviously, when the purpose to occupy the land is temporary, requisition can be opted for and if it is permanent, acquisition can be resorted to. Whether the purpose to occupy the property is temporary or permanent depends upon the facts and circumstances of each case to be appreciated by the Government. Thus whether land is to be required or not, decision lies with the Government, yet the Court can intervene when the requisition continues for a long period. Whether requisition for so long a period in the case in hand is sufficient to suggest the need to acquire the property, needs examination and appreciation but the difficulty is that we are not dealing with the question of reasonableness of a period of continuance of requisition, therefore, we refrain from expressing any opinion on merits and leave it open for the writ Court to address to the issue. In view of the legal position, we are of the opinion that longevity of requisition cannot ipso facto amount to acquisition, obviously, the contention of Mr. P. Imroz is untenable in law and facts.
12. Mr. Z.A. Shah appeared in this case for the respondents virtually at the fag-end of the arguments. Conceding very frankly that the decision to acquire or not is the lookout of the Government, he has contended that a duty is cast upon the Government to take a decision for or against the acquisition within a reasonable period of time, which the respondents have failed to. In this behalf, he has drawn our attention to the last three lines of page (4) of the LPA to show that the decision from the Central Government is awaited since November, 1997. His contention is that the Court can modify the order impugned directing the respondents to take a final decision on the basis of recommendation made by the Board of officers within a reasonable period of time. The argument is appealing but the difficulty is that the respondents/appellants have had no opportunity to place their case before the writ Court, moreso, the pleadings are yet to complete. The owner reason being that the writ petition has been filed on behalf of Zamindaran Committee, which is an unincorporated Association and has no legal personality, therefore, it can neither sue nor can be sued in its name. True it is that the Court has power to permit an unincorporated Association or a group of persons to sue or be sued in their collective capacity in terms of order I Rule 8(1) of the Code of Civil Procedure, provided permission is sought, but it appears that no such prayer has been made by the petitioners at any point of time before the writ Court. However, we leave the writ petitioners (respondents herein) free to take appropriate steps in this direction, if so advised.
13. In result for the aforesaid reasons, appeal, is allowed and the impugned order is set aside. The record produced by Shri Naik is returned to him in the open Court.
14. While parting with the case, we wouldlike to request the writ Court to dispose of the writ petition with possible expeditious dispatch.
15. No order as to costs.