Jharkhand High Court
The Additional Director General vs The State Of Jharkhand Through Its … on 8 May, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
2025:JHHC:13982
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4339 of 2022
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1.The Additional Director General, Directorate General Defence Estates,
Raksha Sampada Bhawan, Ullan Baatar Marg, P.O. & P.S. Delhi, Cantonment,
Delhi Cantonment-110010.
2. The Principal Director Defence Estates, Ministry of Defence, Central
Command, having its office at 17, Cariappa Road, Lucknow Cantonment, P.O.-
Topkhana Bazaar, P.S.-Lucknow Cantonment, District-Lucknow (Uttar
Pradesh).
3. The Defence Estate Officer, Defence Estates Office, J & B Circle, Danapur
Cantonment, P.O. & P.S.-Danapur, District-Patna-801503(Bihar).
4. The Station Commander, Station Headquarters, Ranchi , Indian Army,
Deepatoli, having its office at Ranchi, P.O. & P.S.-Kokar, District-Ranchi.
(Petitioner nos. 1, 2 and 4 are represented through its duly authorised
signatory namely, Jyoti Kapoor (age 31 years) d/o Sri Raj Kapoor, posted as
Defence Estates Officer, J & B Circle, Danapur Cantonment, P.O. & P.S.
Danapur Cantonment, Danapur, Patna-801503. ….Petitioners
Versus
1.The State of Jharkhand through its Principal Secretary, Land and Revenue
Departments, Project Building, P.O. & P.S. Dhurwa, District-Ranchi,
Jharkhand.
2. The Deputy Commissioner, Ranchi, P.O.-GPO, P.S. Kotwali, District-
Ranchi, Jharkhand. ….Respondents
3. Bishnu Kumar Agarwal, S/o-Sri Chiranjeelal Agarwal.
4. Smt. Anushri Agarwal, wife of Bishnu Kumar Agarwal.
Both residents of Jhalda Municipality, ward no.6, Jhalda, P.O. Jhalda,
P.S.Jhalda, District-Purulia 723202 (West Bengal).
..... Applicants/Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioners : Mr. Anil Kumar, ASGI
Ms. Chandana Kumari, A.C. to ASGI
For the Resp.-State : Mr. Rajiv Ranjan, AG
For the Res. Nos. 3 & 4 : Mr. Sumeet Gadodia, Adv
Mrs. Shilpi Sandil Gadodia, Adv
Ms. Shruti Shekhar, Adv.
Mr. Nillohit Choubey, Adv
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CAV On: 09.04.2025 Pronounced On 08 / 04 /2025
The instant writ petition has been filed, inter alia, for quashing of the
order dated 08.07.2022 passed by the 2nd Respondent (Deputy Commissioner,
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Ranchi) in Misc. Case No. 8 R28/2018-19; wherein the land situated within
Mouza Siram in the District of Ranchi appertaining to Municipal Survey Plot
No. 851 admeasuring at area of 3.75 acres and the land appertaining to
Municipal Survey Plot No. 908 admeasuring an area of 1.657 acres
(hereinafter referred to as the scheduled property/property forming subject
matter of the instant application), has been released in favour of 3rd & 4th
Respondents; on the ground that the impugned order has been passed in
contravention to the Section 6(2) of the Requisitioning and Acquisition of
immovable Property Act, 1952 read with Rule 7 of the Requisition and
Acquisition of Immovable Property Rules, 1953.
2. Mr. Anil Kumar, the Ld. Additional Solicitor General of India,
appearing for the Petitioner submits that the right, title and interest of the
scheduled property is vested with the Petitioner, free from any and all
encumbrance. As per him the scheduled land was acquired by the Union of
India and this was notified vide Notification dated 20.7.1949 which was
published in the Bihar Gazette Notification No. 31 on 31.8.1949.
In light of such notification, the provisions of Section 5(2) of the
Requisition of Land (Continuance of Power) Act, 1947, absolute right, title
and interest of the land is with the Petitioner. The Ld. ASGI submits that the
land was initially requisitioned in exercise of powers under Rule 75(1) of the
Defence of India Rules, 1939 (hereinafter referred to as the Rule, 1939) vide
notification bearing number 824-OR/41 dated 14.10.1941 and the order
passed by 2nd Respondent on 5.5.1942. However, thereafter in exercise of the
powers under the Requisition of Land (Continuance of Power) Act, 1947
(hereinafter referred to as the Act, 1947) read with Rule 75A(3) of the Rules,
1939 the schedule land was acquired.
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3. Ld. ASGI further submits that Act, 1947 was enacted to provide
continuance of certain powers in relation to requisitioned land and once there
is a notification under Section 5(2) of the Act, 1947, the land forming subject
matter of such notification vest absolutely with the State.
Ld. ASGI, places heavy reliance on the Notification dated 20.7.1949
which was published in the Bihar Gazette Notification No. 31 on 31.8.1949.
The said notification contains reference to another notification i.e.
Notification No. 17(42)-W-10/4G dated 28.9.1946 (which was published in
the Official Gazette of India). This notification (i.e. the notification dated
28.9.1946) stated that all the lands along with their appurtenance shall be
permanently acquired and would vest absolutely under Section 5(2) of the
Act, 1947. In case any person had any claim with respect to such property an
application could be filed as per the form contained in schedule-II of the
notification.
For better appreciation, the entire notification dated 20.7.1949 bearing
reference to notification dated 28.9.1946 is reproduced as under for ready-
reference:-
“The 20th July, 1949
No. 3398-R- Whereas in exercise of the powers conferred by sub-rule (1) of rule 76 of the Defence
of India Rules read with notification no. 824-OR/41, dated the 4th October 1941, of the Govt. of
India in the Defence Co-ordination Department, the property fully described in schedules I below
(i.e., Nursing Home and the Bungalow near Ranchi Railway Station) had been requisitioned by
the Deputy Commissioner, Ranchi, by his order, dated the 5th May, 1942 and the requisitioned
land continues to be subject to requisition.
And whereas works have during the period of requisition been constructed on the said
land at the expense of the Government and it has been decided that the value of such works should
be preserved for the purposes of Government, now, therefore, in exercise of the powers conferred
by sub-section (1) and sub-section (3) (c) of Section 5 of the Requisitioned Land (Continuances of
Powers) Act, 1947. I, in pursuance of the powers delegated to me under section 8 of the above.
Act by notification no. 17(42)-W-10/4B, dated the 28th September, 1946, published in
India Gazette, hereby notify that it has been decided that lands with appurtenance of standing
thereon fully described in schedule I below be acquired permanently and that the said lands shall
vest absolutely under section 5, sub-section (2) of the said Act on and from the beginning of the
date on which this notice is published in the Bihar Gazette, free from all encumbrances and the
period of requisition of the property shall end.
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Any person interested in the property may file in the form prescribed in schedule-II
annexed hereto within one month from the date of publication of the notice in Bihar Gazette his
claim for compensation before the Deputy Commissioner, Ranchi which will be duly considered
after enquiries.
A copy of the plan can be inspected in the office of the Deputy Commissioner of Ranchi.
SCHEDULE-I
Approximately 5.883 acres of land bearing Municipal Survey plots nos. 908, 851 (portion), and
910 (portion) of ward no. VI of Ranchi Municipality, Ranchi and bounded on the –
North- By the old Hazaribagh Road, M.S. Plot No. 852, the club Road, M.S. Plot no. 839
and by a portion of M.S. Plot No. 851.
South- By M.S. Plot No. 857, 858, 859, 907 and by a portion of M.S. Plot No. 910.
East- By portion of M.S. Plot Nos. 910, 850 and by a portion of M.S. Plot No. 851.
West- By M.S. Plot Nos. 851, 907 and by the old Hazaribagh Road M.S. Plot No. 852.
SCHEDULE-II
Name of Claimants _________________
Full Address ____________________
Full What interest Amount of Reason in Remarks
Description of the Claimant Compensation support of the
the Property has in the claim
for which the
property claim
is made.
M.P. SINHA, Dy. Commissioner, Ranchi"
4. The Ld. ASGI, drawing strength from the above notification submits
that once the scheduled land was notified (as quoted above), it would fall
under the category of the acquired land and not requisitioned land. He has
further supplemented his argument by placing reliance on Rule 75A of
Defence of India Rules, 1939 (hereinafter referred to as Rules, 1939), which
as per him stipulates that once Gazette Notification is done, the land forming
part of such notification (such as the scheduled land) will no longer remain
requisitioned and will fall in the category of acquired land and therefore vest
in the State (or Union) as the case maybe.
It was further submitted that Rule 75A of the Rule, 1939 and its effect
has been considered by the Hon’ble Court of Judicature at Patna, in the case
of Chotanagpur Banking Association, Ltd. and Ors.vs.Govt. of India and
Ors. (1957 BLJR 731), wherein the Hon’ble Court held that an acquisition
under the Defence of India Rules, 1939 is not transfer ‘stricto sensu’ but an
acquisition by operation of law amounts to statutory transfer. Once such
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2025:JHHC:13982transfer is effected the land would come within the purview of ‘public
property’ and once the government decided to act as per Rule 75A of the
Defence of India Rules, 1939; the land vests absolutely with the Government
and the title of the erstwhile owner does not survive. The provision of the
Rules, 1939 is broad and covers all possible modes of transfers and it makes
the land free from any third party claim as soon as the notification is
published. The relevant portion of the judgement is reproduced as under:-
“33. It will appear from rule 75A (3) that when a notice of acquisition is served on the owner of
the property or published in the official gazette under Sub-rule (2) of Rule 75A then at the
beginning of the day on which the notice is so served or published -the property shall vest in
Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of
the requisition thereof shall end. It is, therefore, clear from Rule 75A that the Government has
been given the power to requisition any property under Sub-rule (1) of Rule 75A of the Defence of
India Rules, and, it has further been empowered to acquire the requisitioned property, if it so
desires, in pursuance of Rule 75A, and, when the Government intends to acquire such a
requisitioned property, a notice of such requisition has to be served under Rule 75A(2) (B). When
one such notice is served or published as required by Rule 75A(2) (B), the property, which was
previously requisitioned, and, which has been subsequently acquired under Rule 75A(2), vests in
Government free from all encumbrances; and on the day when the notice of acquisition is so
served, the period of the requisition ends.
On the true construction of Rule 75-A (3), therefore, there is no doubt that by acquiring
immovable property under Rule 75A (3), the Government gets absolute title to the properly so
acquired and, no title thereafter is left in the owner thereof, which can be transferred by him
subsequent to such acquisition under RULE 75A (3). There is no provision in the Defence of India
Act, or in the Defence of India Rules which provides that on such acquisition of the requisitioned
property it will vest in the Government temporarily until the Defence of India Rules is in force,
and, that after the expiry of the Defence of India Rules, the title of the Government to such an
acquired property will end and such property will revert to the owner thereof
….
5. It has been vehemently contented by the Ld. ASGI that the impugned
order suffers from an inherent fatal flaw as it has been passed under
Requisitioning and Acquisition of Immovable Property Act, 1952 read with
Rule 7 of the Requisition and Acquisition of Immovable Property Rules,
1953. He contended that once it is established that the land was acquired prior
to enactment of Requisitioning and Acquisition of Immovable Property Act,
1952 and the right, title and interest of the scheduled land vested with the
Petitioner prior to the enactment of the Requisitioning and Acquisition of
Immovable Property Act, 1952, the same will not have any application. He
strongly reasserts that 2nd Respondent, in his order has miserably failed to
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2025:JHHC:13982consider the provisions of the Act, 1947 and the Rules, 1939 by virtue of
which the title of the scheduled property is vested with the Petitioner free
from any and all encumbrances from the first date of the notification itself.
6. Ld. ASGI has also submitted that the payment/non-payment of
compensation as against the acquisition will not have any bearing on the right,
title and interest of the Petitioner. He has placed reliance of the judgement
rendered in the case of Indore Development Authority (LAPSE-5
J.)v.Manoharlal,1, wherein the Hon’ble Supreme Court, interpreted Section
24(3) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred
to as the Act, 2013) to hold that possession vis-à-vis compensation has to be
read as ‘or’ and not as ‘and’. The relevant portion of the judgement is
reproduced as under:-
“366.3. The word “or” used in Section 24(2) between possession and compensation has to be
read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section
24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior
to commencement of the said Act, the possession of land has not been taken nor compensation has
been paid. In other words, in case possession has been taken, compensation has not been paid
then there is no lapse. Similarly, if compensation has been paid, possession has not been taken
then there is no lapse.”
Drawing inference from this judgment, he submits that even in the
case at hand, even if no compensation was paid to the erstwhile owners, the
same will not have any bearing on the right, title and interest of the Petitioner
as by way of legal friction, the possession of the Petitioner over the land
cannot be disputed.
7. The Ld. ASGI has summed upon his argument by stating that in light
of the above submissions and the provisions of the Act, 1947 read with Rule,
2020 8 SCC 129
1
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1939; the impugned order is Non Est in the eye of law and the action of the
2ndRespondent is wholly without jurisdiction.
8. Per contra, Mr. Sumeet Gadodia, representing the 3rd & 4th
Respondents had submitted that the predecessor-in-interest of Respondent
No. 3 and 4 held the right, title and interest of the scheduled property since
long and the title antecedent over the scheduled property shows that they have
unimpeachable right, title and interest over the scheduled property.
It has been submitted by him that land Municipal Survey Record
prepared in 1929 shows that the scheduled land stands recorded in the name
of Kalipado Ghosh, who was a renowned barrister of the city of Ranchi. He
left for his heavenly abode in 1932 and was survived by his 4 (four) sons
namely Prafulla Kumar Ghosh, Sisir Kumar Ghosh, Dr. Sanat Kumar Ghosh
and Nanda Kumar Ghosh. The scheduled property was partitioned amongst
the 4 (four) brothers by way of a registered indenture of partition dated
29.5.1939, which is recorded in Book No. 1, Volume No. 50, Page No. 122 to
141; kept at the office of District Sub-Registrar, 24 Parganas, Alipur, Kolkata.
In terms of this indenture of partition, the scheduled land (along with
other property owned by Late Kalipado Ghosh) was allotted to Dr. Sanat
Kumar Ghosh. Dr. Sanat Kumar Ghosh, upon partition, became absolute
owner having right, title and interest over the scheduled property until his
demise on 9.10.1960. Upon his demise, the property devolved upon his 2
(two) sons namely Major Ajit Kumar Ghosh and Ranjit Ghosh and his widow
i.e. Renuka Ghosh. Renuka Ghosh died on 15.4.1970 and upon her demise,
her share in the property also devolved upon her sons.
Ranjit Ghosh died intestate on 14.9.2002 leaving behind his only son
namely Sanjay Ghosh. Major Ajit Kumar Ghosh who also died intestate on
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24.9.2014, was survived by his daughter namely Smt. Mahua Mitra. After the
demise of Ranjit Ghosh and Major Ajit Kumar Ghosh, their legal heirs
acquired the right, title and interest of the scheduled property. Upon the
devolution of the scheduled property, Sanjay Ghosh transferred his share of
the property to his HUF i.e. Sanjay Ghosh HUF of which Sanjay Ghosh was
the karta. The scheduled land was then purchased by 3rd & 4th Respondents.
9. Mr. Gadodia has placed heavy reliance of the revenue records
maintained in the office of the Circle Officer, Town Anchal, Ranchi which
shows that a jamabandi being jamabandi No. 188 was running in the name
of Dr. Sanat Kumar Ghosh. It is submitted that right, title, interest and
possession of the predecessor-in-interest of the 3rd & 4th Respondents was
very much recognized by the State as evident from the rent receipts issued in
the name of the predecessor-in-interest of the 3rd & 4th Respondents.
He has further supplemented this line of argument, by submitting that
not only the State but right, title, interest and possession of the predecessor-in-
interest of 3rd& 4th Respondents was also recognised by the Ranchi Municipal
Corporation (erstwhile Ranchi Municipality) as it also realized municipal tax
for the scheduled property. Further, a letter from the Ranchi Regional
Development Authority vide Memo No. 12513 dated 3.11.2011, addressed to
Major Ajit Ghosh, seeking permission for widening of old Hazaribagh Road,
showing the scheduled property as residential land and acknowledging the
right, title, interest and possession of Major Ajit Ghosh with respect to the
scheduled property.
10. The attention of this Court has been drawn to several receipts issued
by competent statutory authorities corroborating the above submission of
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these Respondents; a list of which is summarized as under for the sake of
brevity:-
(i) Municipality Receipt No. 1833 for the year 1937-38;
(ii) Municipality Receipt No. 2919 for the year 1938-39;
(iii) Revenue Rent Receipt No. 186966 for the year 1962-63 and 1963-64;
(iv) Rent Receipt in the name of Dr. Sanat Kumar Ghosh till 2022-23;
(v) Ranchi Municipal Receipt issued upto 1998-99;
11. It is next submitted by Ld. Counsel for the 3rd& 4th Respondentsthat as
per the information obtained under the Right to Information Act, 2005
provided vide letter number 6(10) dated 7.1.2009, the Petitioner itself accepts
that the land forming subject matter of the instant application has never been
acquired. He makes reference to report contained in Letter No. 196 dated
7.7.2022 and Letter No. 1074 dated 7.7.2022. Both reports, which are
independent of each other, stated that there is no record of any acquisition
being made with respect to the scheduled land.
He also made reference to the letter dated 3.7.2017, which was
addressed by the Administrative Commandant of Station Headquarters at
Ranchi to the Circle Officer, Sadar, Ranchi requesting that mutation be
carried out in their name; however, no action was taken pursuant thereto in
absence of any record of acquisition.
12. Controverting, the arguments made by the Ld. ASGI, Mr. Gadodia,
Ld. Counsel for 3rd & 4th Respondents has also submitted that land was
requisitioned in exercise of the powers under Rule 75(1) of the Rules, 1939
and notification bearing number 824-OR/41 dated 14.10.1941 followed by
order of Respondent No. 2 on 5.5.1942.
He contended that the notification dated 20.7.1949 refers only to a
‘decision’to acquire the land, but there is nothing to show that the decision
was ultimately effectuated. It is submitted that the Act, 1947 was enacted with
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the intent to continue such requisitions which were done pursuant to the
Defence of India Act, 1939. He contends that the Act, 1947 has to be read in
entirety. The object clause clearly states that the purpose of enactment of the
Requisition Land (Continuance of Powers) Act, 1947 to enable certain
emergency powers in relation to requisitioned land. Section 6 of the Act, 1947
provides for mandatory payment of compensation, the determination of which
has to be done in accordance with Section 19 of the Act, 1939. Sans payment
of compensation, it cannot be concluded that ‘requisitioned land’ has been
‘acquired’.
13. It has been submitted by him that after the repeal of the Act, 1947 and
the enactment of the Requisitioning and Acquisition of immovable Property
Act, 1952 (hereinafter referred to as the Act, 1952) occupied the filed
pertaining to such requisition. Making reference to Section 24 of the Act,
1952, it is submitted that the status of the land which was requisitioned under
the previous statutes continues to remain as such.
Section 6(1A)(a) of the Act, 1952; which was inserted vide an
amendment in the year 1970 stipulates that any land which was requisitioned
prior to the commencement of such Act shall be deemed to be released from
such requisition on or before 17 (seventeen) years from the commencement of
such requisition. In light thereof, any property which was requisitioned is
deemed to be released in the year 1987, especially in absence of any
document to show that compensation was paid forth to the predecessor-in-
interest of 3rd& 4thRespondents.
14. Mr. Gadodia, lastly submitted that the action of the Petitioner is based
on the principle of approbate and reprobate. He submits that on one hand, the
Petitioner has contended that the right, title and interest of the scheduled
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property is with the Union of India (through the Petitioner) and on the other
hand, the Enforcement Directorate, which is also an instrumentality of the
Union has confiscated the property in exercise of its powers under the
Prevention of Money Laundering Act, 2002. This action itself shows that the
Petitioner has recognized the right, title and interest of 3rd& 4thRespondents.
15. Mr. Rajiv Ranjan, AGrepresenting the State of Jharkhand has supported
the impugned order and in essence adopts the arguments made by the Ld.
Counsel for the 3rd& 4thRespondents.
16. Issues for determination.
Having regard to the submissions made by the parties, this Court vide
order dated 28.3.2025 framed the following issues:-
(i) Whether the process of acquisition gets completed by Gazette Notification for
acquisition, without preparation of award and disbursement of compensation to the
affected Raiyat; if not, what will be consequence of such incomplete acquisition?
(ii) Whether the land in question which was subject matter of acquisition can be said to
have been acquired in the attending facts of the case?
(iii) Whether the impugned order suffers from any legal infirmity?
The Ld. ASGI, during the course of hearing on 4.4.2025 proposed the
following additional issues:-
(i) Whether the Deputy Commissioner has exceeded its jurisdiction in passing the
impugned order when the land in question has been acquired in terms of Defence of
India Rules ?
(ii) Whether the non-payment of compensation shall get the acquisition of land lapsed?
The Ld. Counsel for 3rd& 4thRespondents proposed the following
issue:-
(i) Whether the Union of India can approbate and reprobate at the same time,
inasmuch as, on the one hand they contend that land has already been acquired and
belongs to petitioner and on the other hand, it contends that the property has been
attached by the Enforcement Directorate belonging to the private respondents and
hence no further proceedings for de-requisition can be undertaken ?
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Considering the submissions of both the parties and perusing the
pleadings and the records of the case, this Court has culled the following issue
to determine the lis between the parties:-
(i) Whether the land in question would be an acquired land or a requisitioned land for
the purpose of application of Requisition and Acquisition of Immovable Property
Act, 1952, and accordingly whether the land can be released in terms of Section
6(2) of the aforesaid Act”?
17. Findings and Conclusion.
Heard learned counsels for the parties at length and perused the
pleadings in details and also gone through the documents available on
records.
18. The argument advanced by the Petitioner is principally based on the
Act, 1947 and Rules, 1939. It has been submitted that once there is a
notification under Rule 75A of the Rules, 1939, the land (such as the
scheduled land) vest absolutely in the Petitioner. The main thrust of the
argument is that once there is a notification under the Rules, 1939 the land is
no longer remains in the category of requisitioned land; ratherit falls under
the category of acquisitioned land.The impugned order is assailed on the
ground that it has been passed considering only the provisions of the Act,
1952 and in complete ignorance of provisions of the Act, 1947 and Rules,
1939.
19. In rebuttal, the contention of the Respondents is that any Act has to be
read in its entirety. The Act, 1947 and Rules, 1939 provides that in case any
acquisition takes place, payment of compensation is mandatory to complete
the process of acquisition. In the case at hand, the procedure with respect to
the payment of compensation was never effectuated therefore the acquisition
proceeding was never completed.
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20. In order to deal with the present facts of the case, the scope of the
statute is to be dealt with. The relevant provisions of the concerned statutes
under consideration, is dealt as under:-
21. The Defence of India Act, 1939 (hereinafter to be referred as Act of
1939) was promulgated at the time of World War-II in order to ensure the
safety of British India. It empowered the authorities to make rules in order to
ensure the protection of the forces, ships and aircraft of British India and
further to prevent anything which may prejudice the preparation or ability of
the forces of British India. Section 2(xxix) of the Act, 1939 empowered the
Central Government to requisition any immovable or movable property and
take possession of the same. Section 2 of the Act, 1939 is reproduced as under
for ready reference:-
“Section 2 – Powers to make rules
(1) The Central Government may, by notification in the official Gazette, make such rules as
appear to it to be necessary or expedient for securing the defence of British India, the
public safety, the maintenance of public order or the efficient prosecution of war, or for
maintaining supplies and services essential to the life of the community.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), the rules
may provide for, or may empower any authority to make orders providing for, all or any
of the following matters, namely:
(i) xxx xxx xxx
(xxiv) the requisitioning of any property, movable or immovable, including the taking
possession thereof and the issue of any orders in respect thereof.”
Another relevant provision for the purpose of adjudication of the
dispute at hand is Section 19 of the Act, 1939, which stipulates that in case of
acquisition of any property, compensation shall be payable. The provision
lays down the complete procedure to be followed for the purpose of
acquisition. Section 19 of the Act, 1939 is reproduced as under:-
“19. Compensation to be paid in accordance with certain principles for compulsory
acquisition of immovable property, etc.(1) Where by or under any rule made under this Act any
action is taken of the nature described in sub-section (2) of section 299 of the Government of India
Act, 1935, there shall be paid compensation, the amount of which shall be determined in the
manner, and in accordance with the principles, hereinafter set out, that is to say:–
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(a) Where the amount of compensation can be fixed by agreement, it shall be paid in accordance
with such agreement.
(b) Where no such agreement can be reached, the Central Government shall appoint as arbitrator
a person qualified under sub-section (3) of section 220 of the above-mentioned Act for
appointment as a Judge of a High Court.
(c) The Central Government may, in any particular case, nominate a person having expert
knowledge as to the nature of the property acquired, to assist the arbitrator, and where such
nomination is made, the person to be compensated may also nominate an assessor for the said
purpose.
(d) At the commencement of the proceedings before the arbitrator, the Central Government and
the person to be compensated shall state what in their respective opinions is a fair amount of
compensation.
(e) The arbitrator in making his award shall have regard to–
(i) the provisions of sub-section (1) of section 23 of the Land Acquisition Act, 1894 (I of 1894), so
far as the same can be made applicable; and
(ii) whether the acquisition is of a permanent or temporary character.
(f) An appeal shall lie to the High Court against an award of an arbitrator except in cases where
the amount thereof does not exceed an amount prescribed in this behalf by rule made by the
Central Government.
(g) Save as provided in this section and in any rules made there under, nothing in any law for the
time being in force shall apply to arbitrations under this section.
(2) The Central Government may make rules for the purpose of carrying into effect the provisions
of this section.
(3) In particular and without prejudice to the generality of the foregoing power, such rules may
prescribe–
(a) the procedure to be followed in arbitrations under this section;
(b) the principles to be followed in apportioning the costs of proceedings before the arbitrator and
on appeal;
(c) the maximum amount of an award against which no appeal shall lie”.
22. In terms of Section 2 of the Defence of India Act, 1939; the “Defence
of India Rules, 1939″were enacted to ensure proper implementation of the
Act. The relevant rule for consideration is Rule 75A of the Rules, 1939 which
was inserted vide Notification No. 1336-OR/42 dated 25.4.1942. The Rule
75A of the Rule, 1939 is the procedure to be followed for the purpose of
acquisition and requisition of any property. Rule 75A is reproduced, in its
entirety, as under:-
“75A. (1) If in the opinion of the Central Government or the Provincial Government it is
necessary or expedient so to do for securing the defence of British India, public safety, the
maintenance of public order or the efficient prosecution of the war, or for maintaining supplies
and services essential to the life of the community, that Government may by order in writing14
2025:JHHC:13982requisition any property, moveable or immovable, and may make such further orders as appear to
that Government to be necessary or expedient in connection with the requisitioning :
Provided that no property used for the purpose of religious worship and no such property as is
referred to in rule 66 or in rule 72 shall be requisitioned under this rule.
(2) Where the Central Government or the Provincial Government has requisitioned any property
under sub-rule (1), that Government may use or deal with the property in such manner as may
appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the
owner is not readily traceable or the ownership is in dispute, by publishing in the Official Gazette,
a notice stating that the Central or Provincial Government, as the case may be, has decided to
acquire it in pursuance of this rule.
(3) Where a notice of acquisition is served on the owner of the property or published in the official
gazette under sub-rule (2), then at the beginning of the day on which the notice is so served or
published, the property shall vest in Government free from any mortgage, pledge, lien or other
similar encumbrance and the period of the requisition thereof shall
(4) Whenever in pursuance of sub-rule (1) or sub-rule (2) the Central Government or the
Provincial Government requisitions or acquires any moveable property, the owner thereof shall be
paid such compensation as that Government may determine :
[Provided that, where immediately before the requisition, the property was by virtue of a hire
purchase agreement in the possession of a person other than the owner, the amount determined by
Government as the total compensation payable in respect of the requisition or acquisition shall be
apportioned between that person and the owner in such manner as they may agree upon, and in
default of agreement in such manner as an arbitrator appointed by the Government in this behalf
may decide to be just.]
(5) The Central Government or the Provincial Government may, with a view to requisitioning any
property under sub-rule (1) or determining the compensation payable under sub-rule (4), by
order- .
(a) require any person to furnish to such authority as may be specified in the order such
information in his possession relating to the property as may be so specified;
(b) direct that the owner, occupier or person in. possession of the property shall not without . the
permission of Government dispose of it or where the property is a building, structurally alter it. till
the expiry of such. period as may be specified in the order.
[(5a) Without prejudice to any powers otherwise conferred by these Rules, any person authorised
in this behalf by the Central Government or the Provincial Government may enter any premises
and inspect such premises and any property, therein or thereon for the purpose of determining
whether, and, if so, in, what manner, an order under this rule should be made in relation to such
premises or property, or with a view to securing compliance with any order made under this rule.]
Any orders made, and any action taken, under or in relation to rule 76, 79 or 88 before the 16th
May 1942, shall be deemed to have been made or taken under or in relation to this rule and to be
as valid as if this rule had been then in force.
If any person contravenes any order made under this rule] he shall be punishable with
imprisonment for a term which may extend to three years or with fine or with both.]
23. After the culmination of the World War-II, the Requisition of Land
(Continuance of Power) Act, 1947 (hereinafter to be referred as Act of 1947)
was enacted with the purpose to extend certain emergency powers under the
15
2025:JHHC:13982
Act, 1939. The Act, 1947 provided for the acquisition of such lands which
were requisitioned under the Act, 1939. Section 5 of the Act, 1947 is
reproduced as under for ready reference:-
“Section 5--Power to Acquire Requisitioned Land:
(1) Subject to the provisions of sub-section (5), the appropriate Government may, at any time, when
any requisitioned land continues to be subject to requisition under section 3, acquire such land by
publishing in the official Gazette a notice to the effect that such Government has decided to
acquire such land in pursuance of this section.
(2) When a notice as aforesaid is published in the official Gazette, the requisitioned land, shall on and
from the beginning of the day on which the notice is so published, vest absolutely in the
appropriate Government free from all encumbrances and the period of requisition of such land
shall end.
(3) No requisitioned land shall be acquired under this section except in the following circumstances,
namely:-
(a) Where any works have during the period of requisition been constructed an, in or over the land
wholly or partly at the expense of Government and the appropriate Government decides that the
value of, or the right to use, such works should be preserved or secured for the purposes of
Government; or
(b) Whether the cost of restoring the land to its condition at the time of its requisition would, in the
determination of the appropriate Government, be excessive having regard to the value of the land
at that time and the owner declines to accept the release from requisition of the land without
payment of compensation from Government.
(4) Any decision or determination of the appropriate 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.”
24. Section 6 of the Act, 1947 also provided for payment of
compensation. Section 6 of the Act, 1947 is reproduced as under for ready
reference:-
“Section 6 – Payment of Compensation
(1) In respect of the continued subjection of requisitioned land to requisition under this Act or
the Ordinance, compensation shall be determined and paid in accordance with the
provisions of section 19 of the Defence of India Act, 1939 (xxxv of 1939), and of the rules
made thereunder:
Provided that all agreements and awards under the said section in respect of the payment
of compensation for the period of requisition before the expiry of the said Act shall continue
to be in force and shall apply to the payment of compensation for the period of requisition
after such expiry.
(2) In respect of any acquisition of requisitioned land under this Act or the Ordinance, the
amount of compensation payable shall be such sum as would be sufficient to purchase at
the market rate prevailing on the date of the notice under section 5 a piece of land equal in16
2025:JHHC:13982area to, and situated within a distance of three miles from, the acquired land, and suitable
for the same use as that to which the acquired land was being put immediately before the
date of its requisition, or a sum equivalent to twice the market value of the acquired land on
the date of its requisition, whichever is less; and such amount shall be determined and paid
in accordance with the procedure set out in the aforesaid section 19 and the rules made
thereunder.
(3) For the purposes of sub-section (1) all the provisions of the aforesaid section 19 and of the
rules made thereunder, and for the purposes of sub-section (2) such of those provisions as
relate to matters of procedure, shall be deemed to be continuing in force.”
25. Further, after enactment of the Constitution of India, Requisitioning
and Acquisition of Immovable Property Act, 1952 (hereinafter to be referred
as the Act, 1952) was enacted for the purpose of dealing with the
requisitioned immovable property of the Union. The action taken under the
earlier Acts were protected by virtue of the repeal and savings clause. Section
6(1A) was inserted by an Amendment Act in the year 1970, which provided
for the release of the requisitioned land. Section 6(1A) of the Act, 1952 is
reproduced as under for ready reference:-
“6. Release from requisitioning: xxx xxx
(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 the Requisition and Acquisition of
Immovable Property (Amendment) Act, 1970 (1 of 1970), on or before the
expiry of a period of (seventeen years) from such commencement;
(b) Any property requisitioned under this Act after such commencement, on
or before the expiry of a period of (seventeen years) from the date on
which possession of such property 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.”
26. Thus, the admitted position in the present case is that the land was
requisitioned vide notification dated 5.5.1942. The notification dated
20.7.1949, published under Section 5 of the Act, 1947 is also not disputed by
the parties. However, the Petitioners have not been able to show that any
17
2025:JHHC:13982
compensation was paid to the predecessor-in-interest of the 3rd & 4th
Respondents in lieu of acquisition of the subject land.
The contention of the Petitioners is that publication of the notification
in terms of the Act, 1947, in itself is sufficient to complete the acquisition and
once the publication is done in the official gazette, all the rights stand
extinguished. The Respondents contend that the publication of the notification
only conveys the intent on part of the government. For the purpose of
acquisition of a requisitioned land to be complete, the payment of
compensation is mandatory.
27. This Court has gone through all the applicable laws and has come to a
conclusion that in order to answer the issue framed by this Court, it has to be
ascertained that; whether the process of acquisition is complete in absence of
an award and disbursement of compensation?
28. On going through the statutory provisions of the various Acts and
Rules relevant for this case, the Court finds that Section 19 of the Act, 1939
provides that when any action is taken which is akin to that provided under
Section 299(2) of the Government of India Act, 1935 the payment of
compensation shall be made. Section 299 of the Government of India Act,
1935 protect the Right to Property of a person. The same is reproduced as
under for ready reference:-
“299.–(1) No person shall be deprived of his property in British India save by authority
of law.
(2) Neither the Federal nor a Provincial Legislature shall have power to make any law
authorizing the compulsory acquisition for public purposes of any land, or any
commercial or industrial undertaking, or any interest in, or in any company owning, any
commercial or industrial undertaking, unless the law provides for the payment of
compensation for the property acquired and either fixes the amount of the compensation,
or specifies the principles on which, and the manner in which, it is to be determined.
(3) No Bill or amendment making provision for the transference to public ownership of
any land or for the extinguishment or modification of rights therein, including rights or18
2025:JHHC:13982privileges in respect of land revenue, shall be introduced or moved in either Chamber of
the Federal Legislature without the previous sanction of the Governor General in his
discretion, or, in a Chamber of a Provincial Legislature without the previous sanction of
the Governor in his discretion.
(4) Nothing in his section shall affect the provisions of any law in force at the date of the
passing of this Act.
(5) In this section “land” includes immovable property of every kind and any rights in or
over such property, and “undertaking” includes part of an undertaking.”
29. Thus, Section 299 of the Government of India Act clearly provided,
inter alia, that no person shall be deprived of its property saved by authority
of law and Section 299 further provided, inter alia, that neither the Federal nor
Provincial Legislature shall make any law authorizing compulsory acquisition
for public purposes of any land, unless the law provides for the payment of
compensation for the property acquired and either fixes the amount of
compensation, or specifies the principles on which, and the manner in which,
it is to be determined.
Thus, Government of India Act, 1935 clearly recognizes the Right to
Property and further recognized that a person shall not be deprived of its
property saved by authority of law and any law providing for compulsory
acquisition of property should have adequate provisions for payment of
compensation in respect of the said property.
In fact, specific reference to sub-section (2) of Section 299 of
Government of India Act, 1935 is provided under Section 19 of the Defence
of India Act, 1939 and said provision clearly provides, inter alia, that any
compulsory acquisition of immovable property would be complete only after
payment of compensation in accordance with the principles set out in Section
19 itself.
30. Even Section 5 and Section 6 of the Act of 1947, under which
purported Notification has been issued, clearly provides, inter alia, that
19
2025:JHHC:13982
acquisition of the requisitioned land shall be made only upon payment of
compensation. In fact, Section 6 of the Act of 1947 clearly provides, inter
alia, that compensation shall be determined and paid in accordance with the
provisions of Section 19 of the Defence of India Act, 1939.
A conjoint reading of provisions of Government of India Act, 1935,
Defence of India Act, 1939 and Requisition and Acquisition Act, 1947 would
clearly reveal that in order to compulsorily acquire immovable property,
payment of compensation was sine qua non, without which acquisition could
not get completed. An acquisition without payment of compensation is no
acquisition in the eyes of law.
31. Further, Article 300A of Constitution of India contains similar
provisions to that of Section 299(1) of the Government of India Act, 1935;
and Article 300A provides, inter alia, that “no person shall be deprived of its
property saved by authority of law”.
Article 300A of Constitution of India has been interpreted by Hon’ble
Supreme Court in a catena of decisions and it has been held that no person
can be deprived of its property without due procedure of law. The land of a
person cannot be acquired without payment of due compensation in
accordance with law. There is no concept of implied consent for utilizing the
land of a citizen without following due procedure and without payment of
compensation. The property of a citizen can be acquired for public purposes
on payment of reasonable compensation in accordance with law. Reference in
this regard may be made to the following Judgements rendered by the
Hon’ble Apex Court.
20
2025:JHHC:13982
32. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur
Chenai2the following observations were made by Hon’ble Apex Court:-
“6. Having regard to the provisions contained in Article 300-A of the Constitution,
the State in exercise of its power of “eminent domain” may interfere with the right of
property of a person by acquiring the same but the same must be for a public purpose
and reasonable compensation therefor must be paid.”
In N. Padmamma v. S. Ramakrishna Reddy,3 the following
observations were made by Hon’ble Apex Court:-
“21. If the right of property is a human right as also a constitutional right, the same
cannot be taken away except in accordance with law. Article 300-A of the Constitution
protects such right. The provisions of the Act seeking to divest such right, keeping in view
of the provisions of Article 300-A of the Constitution of India, must be strictly
construed.”
In Delhi Airtech Services (P) Ltd. v. State of U.P.4 the Apex Court has
observed as under:-
“30. It is accepted in every jurisprudence and by different political thinkers that some
amount of property right is an indispensable safeguard against tyranny and economic
oppression of the Government. Jefferson was of the view that liberty cannot long subsist
without the support of property. “Property must be secured, else liberty cannot subsist”
was the opinion of John Adams. Indeed the view that property itself is the seed-bed
which must be conserved if other constitutional values are to flourish, is the consensus
amongst political thinkers and jurists.”
In Jilubhai Nanbhai Khachar v. State of Gujarat,5 the Apex Court has
observed as under:-
“48. In other worlds, Article 300-A only limits the powers of the State that no person
shall be deprived of his property save by authority of law. There has to be no deprivation
without any sanction of law. Deprivation by any other mode is not acquisition or taking
possession under Article 300-A. In other words, if there is no law, there is no deprivation.”
33. Further, in Vidya Devi v. State of H.P.,6 the Hon’ble Apex Court did
not accept the concept of oral consent of persons for depriving him/her of his/her
2005 7 SCC 627
2
(2008) 15 SCC 517
3
(2011) 9 SCC 354
4
1995 Supp (1) SCC 596
5
(2020) 2 SCC 569
6
21
2025:JHHC:13982
valuable rights over the property and it is observed that such utilization of land
without payment of lawful consideration is not sanctioned by the constitutional
mechanism:
“12.8 The contention of the State that the appellant or her predecessors had “orally”
consented to the acquisition is completely baseless. We find complete lack of authority and
legal sanction in compulsorily divesting the appellant of her property by the State.
12.9 In a democratic polity governed by the rule of law, the State could not have
deprived a citizen of their property without the sanction of law. Reliance is placed on the
judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi vs. MIDC,
(2013) 1 SCC 353: (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply
with the procedure for acquisition, requisition, or any other permissible statutory mode. The
State being a welfare State governed by the rule of law cannot arrogate to itself a status
beyond what is provided by the Constitution.”
34. In State of Haryanav. Mukesh Kumar7 the Apex Court has held that
Right to Property is now considered not only to be a constitutional or statutory
right but also a human right. Human rights have been considered in the realm of
individual rights such as right to shelter, livelihood, health, employment, etc.
Human rights have gained a multi-faceted dimension.
35. Thus, from the aforesaid Judgments it is apparent that Right to Property
though, is not a Fundamental Right but a Constitutional Right, which has been
recognized at par with the human rights, which are inalienable. Thus, no person
can be deprived of his property except in accordance with law and in case where
the land of a citizen has been acquired by the State Authorities without proper
acquisition, the same amounts to an action without the Authority of Law. Any
action of the State which is without authority of law is void ab initio and hence
unenforceable. Thus, by no stretch of imagination the petitioner can seek to
enforce its claim based on incomplete acquisition by way of an order passed
under a statutory provision or under Article 226 of the Constitution.
(2011) 10 SCC 404
7
22
2025:JHHC:13982
Recently, Hon’ble Supreme Court in Civil Appeal No. 13785 of 2024
(Jayalakshmamma & Ors Vs. The State of Karnatake& Ors.), under similar
circumstances, where notification was issued under Section 16 of the City of
Mysore Improvement Act, 1903 for acquisition of land, but compensation
amount was neither offered to expropriated landowner nor deposited with the
Reference Court, it was held as under:-
“10. In our considered view mere passing of an award on 21.04.1986 did not absolve the
respondents of their statutory obligation to offer fair and just compensation to the
expropriated land owners. Denial thereof is directly in the teeth of Article 300A of the
Constitution of India.
That apart, the respondents have miserably failed to show any provision either under the
CITB Act or under the 1894 Act, which can enable them to withhold the payment of
compensation endlessly, which would comprise of over 34-35 years in the instant case. Non-
payment of compensation, in the given facts and circumstances of the subject acquisition and
the same is liable to be quashed. Ordered accordingly.”
36. Accordingly, this court is of the firm opinion that in view of undisputed
fact that no compensation was paid for acquisition of the requisitioned property
i.e. the subject land, the acquisition was no acquisition in the eye of law and was
void ab initio.
The case of Indore Development Authority (LAPSE-5 J.) v.
Manoharlal8 does not come to the aid of the Petitioner as the same is
specifically in relation of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 and as such would
not apply in this case and the said deals with a completely different area.
Further, the case of Chotanagpur Banking Association, Ltd. and Ors.
vs. Govt. of India and Ors. (1957 BLJR 731), relied upon by the Petitioners
does not come to its aid as even in this case the Patna High Court has held that
supra
8
23
2025:JHHC:13982
lands cannot be acquired without payment of compensation. The relevant
paragraphs of the judgement is as under:-
“39. On reading Section 19 (1) (a) of the Defence of India Act it is clear enough that if the
amount of compensation cannot be fixed by agreement, the Central Government must
appoint an arbitrator for assessing the compensation, and, such an arbitrator is required
under Section 19 (1) (e) (i) that he shall have regard to the provisions of Sub-section (1). of
Section 23 of the Land Acquisition Act, 1894, in so far as the same can be made applicable.
40. In such circumstances, it cannot be said that the disputed lands were acquired without
payment of any compensation to the owner of the disputed lands. It is not the case of any
party that when the disputed lands were acquired by the Government under Rule 75-A (3) no
compensation was paid to the Bank which was the owner of the property. It cannot,
therefore, be assumed that the disputed lands were acquired by the Government without
paying any compensation to the owner or without following the procedure laid down in
Section 19 of the Defence of India Act.”
37. As a matter of fact, the law is well settled on the point that the
acquisition proceeding gets completed only after the determination of
compensation and thereafter notice to the claimant/owner for receiving the said
compensation. In the attending facts of the case, even considering the fact that
there was a Gazette Notification for declaring the scheduled land as to be
acquired but the Petitioner has failed to bring on record any fact to move out of
the clutches of Section 19 of Act, 1939; as no compensation either has been
determined or has been paid to the land owner/predecessor-in-interest of the 3rd
& 4th Respondents. Thus, the character of the land remains to be a requisitioned
land and given the fact that Act, 1952 allows release of such land, in favour of
the owner, therefore 2nd Respondent cannot be said to have committed any
jurisdictional error while releasing the land in favour of 3rd & 4th Respondents in
terms of Section 6(2) of Act, 1952.
38. In any view of the matter, this Court cannot grant liberty to writ
petitioner-Union of India to comply with the procedure of acquisition and to pay
compensation to Private Respondents in respect of requisitioned land for the
simple reason that by virtue of Section 6(1A) of the Requisition and Acquisition
of Immovable Property Act, 1952, there is provision of deemed release of
24
2025:JHHC:13982
requisitioned property on or before 10.03.1987, and, thus, this Court is of the
opinion that no further liberty can be granted to writ petitioner-Union of India to
make payment of compensation to Private Respondents. Reference may be made
to the judgment of the Hon’ble Supreme Court of India rendered in the case of
Roy Estate v. State of Jharkhand, (2009) 12 SCC 194.
39. Another aspect which cannot be lost sight of is the scope of interference
by this Court under Article 226 of the Constitution of India in its certiorari
jurisdiction, which is very limited and no case of perversity or of jurisdictional
error has been made out. It is well settled that powers under Article 226 is not to
be exercised only because it is lawful to do so.
40. Accordingly, it is held that the order passed by the Court of Deputy
Commissioner, Ranchi, dated 08.07.2022 in Misc. Case No. 8R/28/2018-19, by
which said Authority has ordered for release of the land in favour of 3rd & 4th
Respondents, does not warrant interference by this Court. As a result, the instant
writ petition stands dismissed.
41. Pending I.As, if any, also stands closed.
(Deepak Roshan, J.)
Amardeep
AFR
25
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