MANEKLAL AMRATLAL Vs. COLLECTOR OF AHMEDABAD

JUDGEMENT

(1.) BY this petition an order of requisition made by the Collector of Ahmedabad on May 15, 1953, is being challenged by the petitioner. The property requisitioned is a stall in the vegetable market at Dholka, and the ground of the challenge is that the order does not comply with the mandatory provisions of Section 5 of the Bombay Land Requisition Act.

(2.) NOW, this property, as the order itself states, has been requisitioned under Sub-section (1) of s. 5 of the Act, and turning to that section it provides :

(3.) NOW, what the Advocate General contends in the first place is that Sub-section (2) only applies where Government wishes to requisition residential buildings or part of residential buildings. The Advocate General says that if the buildings are non-residential, there is no necessity and no obligation upon the Government to make an inquiry. In our opinion, the language used by the Legislature in Sub-section (2) is clear. An inquiry is made obligatory in every case where a building or part thereof is to be requisitioned. No inquiry is necessary where open land is to be requisitioned. Therefore, the Legislature in Sub-section (2) has made a distinction between land apart from building or part of a building and it is only in the case of a building or part thereof that an inquiry has been made obligatory, but the Legislature has not made the further distinction between a residential and a non-residential building. Whatever the nature of the building, if the Government wishes to requisition a building, it must hold the inquiry mentioned in Sub-section (2) of Section 5. The further contention of the Advocate General is that even if an inquiry is obligatory, a declaration is not obligatory, and the Advocate General says that the scheme of Sub-section (2) is that the Government is bound to make a declaration only if the Government desires that the declaration should become conclusive evidence with regard to the question of residence. In other words, according to the Advocate General the making of a declaration is left to the option of. the Government; the Government may exercise the option if it wants to take the benefit of the conclusiveness of the declaration; if, on the other hand, the Government does not want to avail itself of that benefit, then it may not make a declaration. In our opinion that contention also is wholly untenable. If that had been the intention of the Legislature, then the Legislature would not have made a declaration obligatory. It would not have used the expression "shall make", but would have left it to the option or discretion of the State Government by using the expression "may" in place of the expression "shall". It is clear that reading Sub-section (2) as a whole the position is that both an inquiry and the making of a declaration are obligatory. Then the Legislature goes on to say what the effect of such a declaration is.