LexKERALA STATE CASHEW DEVELOPMENT CORPORATION versus SHAHAL HASSAN MUSSALIAR & ANR.
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\ (2009) 4 S.C.R 419 KERALA STATE CASHEW DEVELOPMENT CORPORATION V. SHAHAL HASSAN MUSSALIAR & ANR. Civil Appeal No. 8247 of 2001 MARCH 16, 2009 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] A B Kera/a Cashew Factories (Requisitioning) Act, 1979, as amended by Act No.26 of 1985 - s.3 - Requisition and acquisition - Difference between - Discussed - s.3 of the Act C empowered the State Goyernment to requisition cashew factories leased to Kera/a State Cashew Development Corporation for maximum period of five years - Amending Act of 1985 purportedly removed the limitation of five years and enabled the State Government to requisition such cashew D factories for an indefinite period of time - Challenge to - Held: The State cannot under the guise of requisition continue dominion over someone's property for an indefinite period of time, because that would be a fraud on the power conferred on the government - If the Government wants to take over the E property for an indefinite period of time, the Government must acquire the property - The power of requisitioning would be upheld, if it is to be exercised for a temporary duration, which is limited either in terms of time or by reason of a contingency - Constitutionalism - Colourable legislation. F Section 3 of the Kerala Cashew Factories (Requisitioning) Act, 1979 empowered the State Government to requisition cashew factories leased to , • .. Kerala State Cashew Development Corporation for a G maximum period of five years. The Amending Act of 1985 (Act No. 26 of 1985) purportedly removed the limitation of five years an.d 419 H 420 SUPREME COURT REPORTS [2009] 4 S.C.R. A enabled the State Government to requisition such cashew factories for an indefinite period of time. In the instant appeals, the question which arose for consideration was: whether where any statute empowered the State to continue to extend a requisition 8 order for an indefinite period, it is an order for acquisition and, therefore, a colourable exercise of power which is not available to the State under the Act. Dismissing the appeals, the Court C HELD:1. The two concepts, one of requisition and the other of acquisition, are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner, whatever the nature and extent of that title may be. The entire bundle of rights D which was vested in the original holder passes on acquisition to the acquirer, leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. In contradistinction, the E concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration. The State cannot under the guise of requisition continue dominion over some one's property for an F indefinite period of time, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition G which is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and, H in such a case, the order of requisition, if passed, would KERALA STATE CASHEW DEV. CORP. V. 421 SHAHAL HASSAN MUSSALIAR & ANR. • be a fraud upon the statute, for the Government would be A requisitioning the premises, when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can B never be served by requisitioning the premises, but it can be achieved only by acquiring the property, which would ~ be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises, but it c certainly cannot requisition the premises and continue the requisitioning indefinitely. [Para 15) 1.2. The power of requisitioning would be upheld, if it is t
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