P.N. Bhagwati, C.J.

1. These two petitions challenge an order of requisition dated 11th July 1967 issued by the Collector of Bulsar purporting to requisition a building known as 'Mohan Smruti' situate on Mahatma Gandhi Road within the municipal limits of Balsar, in exercise of the power conferred under Section 6 Sub-section (4) Clause (a) of the Bombay Land Requisition Act, 1948. The petitioners in these two petitions and three other persons carried on business as partners in the firm name and style of Messrs. Dinesh, Mukesh & Company (hereinafter referred to as the petitioner firm). The petitioner firm started constructing a building called 'Mohan Smruti' on Mahatma Gandhi Road within the municipal limits of Bulsar. When the construction of the building was about to be completed, there were negotiations between Manilal Bhulabhal Solanki, petitioner in Petition No. 1095 of 1967, and the Life Insurance Corporation for letting out the building to the Life Insurance Corporation. Whilst these negotiations were going on the Collector of Bulsar came to know that the Life Insurance Corporation was intending to shift to the building of the petitioner firm known as 'Mohan Smruti' and the Collector therefore Intimated to the Life Insurance Corporation as also to the petitioner firm that the building should not be let out without obtaining the previous permission of the Collector. Correspondence thereupon took place between Manilal Bhula-bhai Solanki and/or the Life Insurance Corporation on the one hand and the Collector on the other and ultimately the Collector gave permission for letting out the building to the Life Insurance Corporation. The Life Insurance Corporation however decided not to take the building on lease as the area of the building was found by it to be inadequate. The information that the Life Insurance Corporation was not interested in taking the building on rent was given by Manilal Bhulabhai Solanki to the Collector by a letter dated 10th July 1967 and by this letter, Manilal Bhulabhai Solanki also pointed out to the Collector that the petitioner firm did not intend to give the building on rent as the partners of the petitioner firm wanted to occupy the building for their personal use. The Collector however by an order of requisition dated 11th July 1967 requisitioned the building under Section 6 Sub-section (4) Clause (a). The order of requisition as translated was in the following terms:

Whereas under Section 6(1) of the Bombay Land Requisition Act, Bombay Act No. XXXIII, an intimation from the landlord has been received here to the effect that the house mentioned with its bounds in the Schedule below is vacant;

I, Parthsarthi, I.A.S., Collector, Bulsar, under the powers vested under Section 6(4)(a) of the said Act, vide the order of the Hon'ble Government, Public Works Department, Ahmedabad, No-G H. /J. 62-G. I/G. H/S. R. T/65 dated 9-2-65, hereby requisition the said house for public purpose of leasing it to a Government office.

The petitioners thereupon filed the present petitions challenging the validity of the order of requisition.

2. There were three grounds of challenge against the validity of the order of requisition but it is not necessary to refer to all of them since there is one ground which is in our opinion fatal to the validity of the order of requisition and the decision of that ground renders it unnecessary to consider the merits of the other two grounds. That ground was formulated by Mr. Surti, learned advocate appearing on behalf of the petitioners, as under: He urged that no intimation as required by Sub-section (1) of Section 6 was given by the petitioner firm to the officer authorised in that behalf by the State Government and the Collector was, therefore, bound to comply with the proviso to Section 6 Sub-section (4) in making the order of requisition. The proviso to Section 6 Sub-section (4), argued Mr. Surti, required the Collector to make 'such inquiry as he deemed fit' and also to make a declaration in the order of requisition that the building was vacant or had become vacant on or after the date referred to in Section 6 Sub-section (1) but neither of these two requirements was complied with by the Collector before making the order of requisition and the order of requisition was therefore invalid. This argument on behalf of the petitioners was sought to be met by Mr. B.R. Shah, learned advocate appearing on behalf of the respondents, by a two-fold answer. In the first place, he urged that intimation of vacancy was given by the petitioner firm to the Collector as required by Section 6 Sub-section (1) and the proviso to Section 6 Sub-section (4) bad therefore no application. He submitted that in any event, even if there was no Intimation given by the petitioner firm to the Collector within the meaning of Section 6 Sub-section (1) and the proviso to Section 6 Sub-section (4) was therefore attracted, it was not obligatory on the part of the Collector to make an inquiry and even if it was obligatory, he had made the requisite inquiry in the course of the correspondence with the petitioner firm and though, undoubtedly, the order of requisition did not contain a declaration that the building was vacant or had become vacant on or after the date referred to in Section 6 Sub-section (1), that did not have the effect of invalidating the order of requisition. We are of the view that the answer given on behalf of the respondents has no validity and the challenge preferred by the petitioners must succeed. Our reasons for saying so are as follows :

3. The scheme of the provisions contained in Section 6 is fairly clear. Sub-section (1) requires that if any premises situate in an area specified by the State Government by notification in the Official Gazette--and the premises must satisfy the description given in the definition in Section 4 Sub-section (3)--are vacant on the date of such notification and wherever any such premises are vacant or become vacant after such date by reason of the landlord, the tenant or the sub-tenant, as the case may be, ceasing to occupy the premises or by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other reason the landlord of such premises shall give intimation thereof in the prescribed form to an officer authorised in this behalf by the State Government. The intimation of vacancy is required to be given by the landlord of the premises to the authorised officer 'in the prescribed form. 'The form of the intimation is prescribed by Rules made by the State Government in exercise of the powers conferred under Section 19 and the intimation to be given by the landlord must therefore be in that form. Sub-section (2) requires that the intimation shall be given by registered post within one month from the date of the notification in the case of premises which are vacant on such date and in other cases within seven days of the premises becoming vacant or becoming available for occupation. There is an inhibition imposed on the landlord by Sub-section (3) which prescribes that he shall not, without the permission of the Mate Government, let, occupy or permit to be occupied the premises before giving the intimation and for a period of one month from the date on which the Intimation is received. If the landlord fails to give intimation within the period specified in Sub-section (2) or lets, occupies or permits to be occupied the premises in contravention of the provisions of Sub-section (3), he is punishable under Sub-section (5). Sub-section (4) confers the power of requisition on the State Government and it says:

(4) Whether or not an intimation under Sub-section (1) is given and notwithstanding anything contained in Section 5, the State Government may by order in writing

(a) requisition the premises for any public purpose and may use or deal with premises for any such purpose in such manner as may appear to it to be expedient; or. ... ... ... ... ...Provided that where an order is to be made under Clause (a) requisitioning the premises in respect of which no intimation is given by the landlord, the State Government shall make such inquiry as it deems fit and make a declaration in the order that the premises were vacant or had become vacant, on or after the date referred to in Sub-section (1) and such declaration shall be conclusive evidence that the premises were or had so become vacant.

The power of requisition conferred on the State Government under Sub-section (4) is not dependent upon whether or not intimation under Sub-section (1) has been given by the landlord. Even if no intimation under Sub-section (1) is given by the landlord, the State Government can make an order of requisition but in such a case, says the proviso, the State Government shall make such inquiry as it deems fit and make a declaration in the order that the premises were vacant or had become vacant on or after the date referred to in Sub-section (1). Where the Intimation of vacancy Is given by the landlord, there is obviously no need for making any inquiry since the intimation would contain a clear admission of vacancy on the part of the landlord and when the State Government proceeds to make an order of requisition on the basis that the premises are vacant or have become vacant, the landlord cannot possibly have any grievance. Not would it be necessary for the State Government to make a declaration in the order that the premises were or had become vacant on or after the date of the notification under Sub-section (1), for the State Government would be acting on the basis of the statement as to vacancy contained in the intimation given by the landlord himself. But where no intimation is given by the landlord under Sub-section (1) and there is, therefore, no admission of the landlord as regards vacancy, the proviso insists that the Slate Government shall make an inquiry-of course the nature and extent of the inquiry being left to its sole discretion-and make a declaration in the order that the premises were or had become vacant on or after the date referred to in the notification under Sub-section (1). These two requirements prescribed by the proviso are intended to ensure that the State Government applies its mind to the question whether the premises are vacant or have become vacant and does not make an order of requisition recklessly or cavalierly; they Introduce a safeguard for the owner of the premises, meagre though it may be. These two requirements must be fulfilled on pain of invalidity before an order of requisition can be made by the State Government. The main part of Sub-section (4) confers power on the State Government to make an order of requisition but the proviso introduces a condition on the exercise of the power of requisition by saying that where an order is to be made under Clause (a) requisitioning the premises, the State Government shall comply with the two requirements set out in the proviso. Clearly on a plain natural construction of the language of the proviso, no order can be made requisitioning the premises In respect of which no intimation is given by the landlord unless the State Government complies with the two requirements set out in the proviso. If either of the two requirements is not satisfied, the order of requisition would be invalid.

4. The first question which therefore arises for consideration is whether any intimation of vacancy in respect of the building was given by the petitioner firm under Sub-section (1). The contention of Mr. B.R. Shah, learned advocate appearing on behalf of the respondents, was that Intimation of vacancy was given by the petitioner firm but when we asked him as to how such intimation was given and what was its date, he was not in a position to give any definite answer to us. He relied upon a letter dated 23rd June 1967 addressed by Manilal Bhulabhai Solanki to the Collector but this letter can hardly be regarded as an intimation of vacancy to the Collector. This letter merely pointed out that the correspondence with the Life Insurance Corporation in regard to letting out of building was in progress and that as soon as the negotiations were finalised with the Life Insurance Corporation, he would inform the Collector in writing about the date on which the Life Insurance Corporation would take possession of the building. There is not a word in this letter which would go to show either that the building was ready for occupation or that it was vacant from a particular date. There was also another letter dated 10th July 1967 addressed by Manilal Bhulabhai Solanki to the Collector which was faintly relied upon by Mr. B.R. Shah on behalf of the respondents but that letter also does not contain any intimation of vacancy to the Collector. Moreover, as pointed out above, Sub-section (1) requires that Intimation of vacancy should be in the prescribed form whereas none of these two letters gives any intimation of vacancy in the prescribed form. It is, therefore, not possible to say that intimation of vacancy was given by the petitioner firm to the Collector as required under Sub-section (1).

5. If no intimation of vacancy within the meaning of Sub-section (1) was given by the petitioner firm to the Collector, the proviso to Sub-section (4) was clearly attracted and no order of requisition in respect of the building could be made by the Collector unless the Collector complied with the two requirements set out in the proviso. The first requirement was that the Collector should make such inquiry as he thought fit while the second was that he should make a declaration in the order of requisition that the premises were vacant or had become vacant on or after the date referred to in Sub-section (1). The argument of Mr. Surti on behalf of the petitioners was that both these requirements were not satisfied but for the purpose of the present petitions, it is not necessary to decide whether the first requirement was satisfied or not, for we are of the view that the second requirement was in any event not satisfied and the order of requisition must be held to be bad on that ground. The order of requisition did not contain a declaration that the building was vacant after 21st May 1964, being the date of the relevant notification under Sub-section (1) and the second requirement of the proviso was, therefore, not complied with by the Collector before making the order of requisition. Mr. B.R. Shah on behalf of the respondents urged that the building newly erected was vacant in fact at the date when the order of requisition was made and it did not therefore make any difference whether a declaration to that effect was made or not. But this argument does not meet the infirmity which arises in the order of requisition by reason of the absence of such a declaration. The proviso requires that such a declaration shall be made

6. In the order of requisition and if it is not made, the order of requisitren cannot be saved by showing that in fact the premises were vacant or had become vacant. The order of requisition made by the Collector in the present case must, therefore, be held to be invalid by reason of non-compliance with the second requirement of the proviso.

7. We, therefore, allow the petitions and make the rule absolute in each petition by issuing a writ of mandamus quashing and setting aside the order of requisition impugned in the petitions. The respondents will pay to the petitioner in each petition the costs of the petition.