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The Union of India Vs. Ram Kanwar & Ors [1961] INSC 255 (29 August 1961)

SUBBARAO, K.

GAJENDRAGADKAR, P.B.

HIDAYATULLAH, M.

CITATION: 1962 AIR 247 1962 SCR (3) 313

CITATOR INFO :

RF 1972 SC1935 (9) RF 1973 SC 569 (13) RF 1979 SC1459 (67) RF 1980 SC1632 (31) R 1984 SC1503 (9,10)

ACT:

Letters Patent Appeal-Limitation for filing-Requisition and de-Requisition of building-Indian Limitation Act, 1908 (9 of 1908), s.29 (2) Art. 151-Punjab High Court Rules, r. 4De once of India Rules, r. 75A-Requisitioning and Acquisition any of Immovable Property Act, 7952 (30 of 1952), ss. 3, 24 (2)Requisitioned Land (Continuance of Powers) Act, 1947 (XIIII of 1947).

HEADNOTE:

A building belonging to the respondents was requisitioned by the Government of India under r. 75-A (1) of the Defence of India Rules originally for the purpose of occupation by a certain officer of the Indian National Airways and afterwards by the officers of the Central Government. After the building was vacated by the said officers it was put in the possession of Tribeni Kala Sangam which was a private dance and music school. The respondent's appeal to the Central Government for de-requisitioning the building having failed be filed a petition for mandamus for that purpose in the High Court which was allowed. The appellant's appeal under the Letters Patent filed within 30 days under the rules of the High Court but beyond 20 days as prescribed by the Limitation Act from the judgment of the single judge was dismissed as barred by time and also on the merits. On appeal by special leave.

Held, that r. 4 of the High Court Rules which allows Letters Patent appeals to be filed within 30 days from the date of the judgment of the single judge is a special law within the meaning of s.29(2) of the Limitation Act and such appeals may be filed within the said period of 30 days and not 20 days as prescribed by Art. 151 of the First Schedule of the Limitation Act Punjab Co-operative Bank Ltd. v. social Liquidators, A.I.R. 1941 Lah. 57, approved.

Held, further, that under s.24(2) of the Requisitioning and Acquisitioning of Immovable Property Act, 1952, which repealed the Requisitioned Land (Continuance of Powers) Act, 1947, a fiction was created to the effect that properties requisitioned under the earlier Act should be deemed to be requisitioned under s.3 of the Act. The effect of the fiction was that the requisition made under r. 75-A of the Defence of India Rules was a requisition tinder s.3 of the 1952 Act, that is, the 314 purpose mentioned in r. 75-A shall be deemed to be a public purpose of the Union within the meaning of s.3 of the Act.

In the present case as the building in question was being used for a purpose other than that for which it was originally requisitioned under r. 75-A it was liable to be de-requisitioned.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 322 of 1960.

Appeal by special leave from the judgment and order dated November 21, 1957, of the Punjab High Court (Circuit Bench) at Delhi in L.P.A. No. 4 of 1955.

M. C. Setalvad, Attorney-General of India, B. Sen, R. H. Dhebar and T. M. Sen, for the appellant.

A.V. Viswanatha Sastri and Sardar Bahadur, for the respondents Nos. 1 to 6.

S.N. Andley, Rameshwar Nath and P.L. Vohra, for the respondent No. 7.

1961. August 29. The Judgment of the Court was delivered by SUBBA RAO, J.-This appeal by special leave is preferred against the judgment of a division bench of the Circuit Bench of the Punjab High Court at Delhi confirming that of a single Judge of that High Court issuing a writ of mandamus against the Union of India directing it to restore possession of the flat requisitioned by the said Government to the respondents.

One Babu Ram was the owner of Flat No. 5, Aggarwal Building, Connaught Circus, New Delhi; respondents 1 to 6 are his sons-and widow. By an order dated April 14, 1943, the Government of India requisitioned the said flat under r.75A(1) of the Defence of India Rules for a period of one year from April 15, 1943. to April 14, 1944. The said flat was put in the occupation of one Hardie of the Indian National Airways. The period of requisition was extended from time to time, and finally by an order dated April 2, 1946, the flat was requisitioned from April 15, 1946, until further orders 315 of the Central Government. After Mr. Hardie vacated the flat, it was allotted to other officers. Babu Ram requested the Government from time to time to de-requisition the said flat for his personal use. He represented that he was suffering from heart trouble and was continuously keeping indifferent health, that two of his sons had got married, and that in those circumstances it had become impossible for him to continue to live in their small house in a narrow lane ; but the Government of India rejected his request on the ground that on surrender by the officers of the Indian National Airways it would be required for allotment to Central Government officers. Babu Ram died on October, 24, 1951. It appears that four or five months in 1947 the flat was vacant and thereafter it was occupied by refugees from West Pakistan. It was afterwards given to the present respondent No. 7, Triveni Kala Sangam. On November 4,1952, respondent No. 1 again requested the Government to derequisition the flat mainly on the ground that the said flat was not in use of the officers of the Central Government but was put in possession of Triveni Kala Sangam, which was a private dance and music school. As no reply was given to that request, the said respondent sent a reminder on June 26, 1953, and to that he received a reply to the effect that "the matter is receiving attention and further communication will follow in due course." On September 16, 1953, the Government informed the first respondent that he could execute a lease deed in favour of the Government in respect of the said flat. As the appellants did not put the respondents in possession of the said flat, they had no alternative but to file a petition for a writ of mandamus in the High Court of Punjab. The petition was heard by Falshaw, J., and the learned Judge issued a writ of mandamus on October 19, 1954, directing the appellants to put the respondents in possession of the flat. Against the said order, on November 26, 1954, the appellants filed a Letters Patent appeal in the Circuit 316 Bench of the Punjab High Court at Delhi. The appeal was filed within 30 days from the date of the said order after excluding the time taken for obtaining certified copies of the necessary documents but more than 20 days thereafter.

The appeal was heard by a division bench of the said. High Court consisting of the Chief Justice and Mehar Singh, J.

The learned Judges held that the appeal was filed out of time and that there was not sufficient reason for excusing the delay. They also went into the merits of the case and agreed with Falshaw, J., that a case had been made out for issuing a writ. With the result that the appeal was dismissed. Hence the present appeal.

Learned Attorney-General, appearing for the appellants, contends, that the Letters Patent appeal, it having been filed within 30 days from the date of the judgment of Falshaw, J., was within time, and that, in any view, having regard to the fluid state of the law on the question whether the and prescribed by the Limitation Act or the rule by the High Court would govern that appeal, there Was sufficient cause for excusing the delay. On the merits he argues that the requisition made under r.75-A of the Defence of India Rules (hereinafter called the Rules) was continued unders.3 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. 17 of 1947) (hereinafter called the 1947 Act), where under the appropriate Government was given the power to use or deal with a requisitioned land in such manner as may appear to it to be expedient, that in exercise of the said power the said Government put Triveni Kala Sangam in possession of the same, and that under s.24(2) of the Requisitioning and Acquisitioning of Immovable Property Act, 1952 (hereinafter called the 1952 Act), the said requisition shall be deemed to be property requisitioned under s.3 of the said Act and that under the said section the said purpose must be deemed to be a public purpose, being the purpose of the Union and, as that purpose did not cease to exist, 317 the respondents are not entitled to ask for de-requisition of the said flat.

Mr. A. V. Viswanatha Sastri, learned counsel for the respondents, seeks to sustain the order of the High Court both on the question of limitation as well as on merits.

Three questions fall to be considered in this appear, namely (1) what is the period of limitation prescribed for an appeal against an order of a Single Judge of the Punjab High Court to a division bench of the same High Court ? (2) if the appeal was preferred out of time, was there a sufficient cause for excusing the delay in preferring the appeal ? (3) are the respondents now legally entitled to ask the Central Government to de-requisition the said premises under the 1952 Act ? To appreciate the first contention it is necessary to read the relevant provisions of the Limitation Act, the clauses of the Letters Patent and the rules made by the High Court.

The Indian Limitation Act, 1908.

"Section 29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule......" The First Schedule Description of appeal Period of Time from of which limitation period begains to run 151. From a decree or order of any of the High Courts of Judicature at Fort William, 318 Madras and Bombay, Twenty The date of or of the High Court days the decree or order of Punjab in the exercise of its original jurisdiction.

LETTERS PATENT FOR THE HIGH COURT OF LAHORE.

Clause 27. And WE do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make, rules and orders for regulating the practice of the Court and for the purpose of adopting as far as possible the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the Governor-General in Council and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction respectively.

Clause 37. And We do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council, and also of the Governor-General in Council under section seventy-one of the Government of India Act, 1915; and also of the Governor-General in cases of emergency under section seventy-two of that Act, and may be in all respects amended and altered thereby.

Rules and Orders of the High Court of Punjab.

Rule 4: No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation.

319 It is clear from the aforesaid provisions that while under Art. 151 of the Limitation Act a period of 20 days is prescribed for preferring an appeal from an order of the High Court of Punjab in the exercise of its Original Jurisdiction, under r. 4 of High Court Rules for an appeal under cl. 10 of the Letters Patent a period of limitation of 30 days is provided. If Art. 151 applies, the Letters Patent appeal in the present case was clearly barred. But if r. 4 could be invoked, then the appeal was well within time. The combined effect of the provisions may be stated thus: Under cl. 27 of the Letters Patent, the High Court of Judicature of Lahore has the power to make a rule prescribing the period of limitation in respect of appeals from orders made by that Court in exercise of its Original Jurisdiction to a division bench of that High Court. Under el. 37 thereof, the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and, therefore, any rule made in exercise of a power conferred under the Letters Patent must necessarily be subject to the provisions of the Limitation Act which is a law made by the Legislative Council. Article 151 of the Limitation Act prescribes the period of limitation of 20 days for preferring an appeal against an order made by the High Court in exercise of its original jurisdiction, and if there is no other limitation on that section, r. 4 of the High Court Rules must give way to the said Article. But s. 29(2) of the Limitation Act limits the scope of that section, for it says that where a special or local law prescribes for an appeal a period prescribed therefore in the said Schedule, the provisions of s. 3 shall apply as if such period were prescribed therefor in that Schedule, that is, if there is a special or local law prescribing a period of limition, it will be deemed to be the period of limitation prescribed by the First Schedule to the Limitation Act in respect of an appeal covered by that rule. To state it differently, if r. 4 is a special law, the Limitation Act itself must be deemed to 320 prescribe the period of limitation mentioned under that rule for the class of cases covered by the said rule, and to that extent the rule derogates from Art. 151 of the First Schedule to the Limitation Act. Article 151 must be read subject to the special law. In this view, the argument that cl. 37 of the Letters Patent makes the rule made by the High Court subject to the Limitation Act and, therefore, that Art. 151 shall prevail over r. 4 has no force. Briefly stated, the legal position is this: Under el. 27 of the Letters Patent, the High Court has power to make a rule prescribing the period of limitation for a Letters Patent appeal against an order of a single Judge made in exercise of the original jurisdiction of the High Court, and by reason of cl.37 thereof, the said rule is subject to the provisions of the Limitation Act; but the Limitation Act itself saves the operation of the said rule. With the result that r. 4 applies to such an appeal, whereas Art. 151 of the Limitation Act will govern appeals not covered by r.

4 or appeals, from orders made by other High Courts in exercise of their original jurisdiction, if no rule similar to r. 4 is made by the said High Court or High Courts.

In the premises the only question to be decided is whether r. 4 is a special law within the meaning of s. 29(2) of the Limitation Act. Rule 4 is made by the High Court in exercise of the legislative power conferred upon the said High Court under cl. 27 of the Letters Patent. As the said rule is a law made in respect of special cases covered by it, it would certainly be a special law within the meaning of s. 29(2) of the Limitation Act.

This view was accepted by the Punjab High Court in Punjab Co-operative Bank Ltd. v. Official Liguidators, punjab Cotton Press Company, Ltd. (in liquidation) (1). There, a full bench of that High Court held that the statutory rules framed by the (1) A.I.R. 1941 Lahore 57 (F. B.).

321 High Court under cl. 27 of the Letters Patent under the authority delegated to it by His Majesty who, in turn, was acting under the powers conferred on him by Act of Parliament, are a "special law". We agree with this view.

It is not necessary to deal with other decisions cited at the Bar, for in none, of them the scope of s. 29 of the Limitation Act was considered. Indeed, Mr. A.V. Viswanatha Sastri has not contended that r. 4 is not a special law within the meaning of s. 29 of the Limitation Act. If so, it follows that under r. 4 an appeal could be filed within 30 days from the date of the order of Falshaw, J., and the appeal having been filed on the twenty-third day, it was well within time.

In this view, the second question does not fall to be considered in this appeal.

On merits, the question turns upon the construction of the relevant provisions of the Defence of India Rules, the 1947 Act and the 1952 Act. For easy reference and comparison, the relevant provisions may be read at one place.

The Defence of India Rules Rule 75-A. (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 efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property movable or immovable, and may make such further orders as appear to that Government to be necessary or expedient in connection wit h the requisitioning.

x x x x x x (2) Where the Central Government or the Provincial Government has requisitioned. any property under sub-rule (1) that Government 322 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 ",here 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. , The Requisitioning and Acquisitioning of Immovable Property Act, 1952 (XXX of 1952) Section 24. (1) The Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947), the Delhi Premises (Requisition and Eviction) Act, 1947 (XLIX of 1947) and the Requisitioning and Acquisitioning of Immovable Property Ordinance, 1952 (III of 1952) are hereby repealed.

(2) For the removal of doubts, it is hereby declared that any property which immediately before such repeal was subject to requisition under the provisions of either of the said Acts or the said Ordinance shall, on the commencement of this Act, be deemed to be property requisitioned under section 3 of this Act, and all the provisions of this Act shall apply accordingly.

Section 3. (1) Where the competent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the Union, and that the property should be requisitioned, the competent authority(a) shall call upon the owner or any other person who may be in possession of 'the property by notice in writing specifying therein the purpose of the requisition to show cause, within fifteen days 323 of the date of the service of such notice on him, why the property shall not be requisitioned ;

x x x x Section 6. (1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the change caused by reasonable wear and tear and irresistible force :

Provided that where the purpose for which any requisitioned property was being used ceased to exist, the Central Government shall, unless the property is acquire under section 7 release that property, as soon as may be, from requisition.

The Defence of India Rules were issued under the Defence of India Ordinance, 1939, which was repealed by the Defence of India Act, 1939, but the said rules were kept alive by virtue of the provisions of s. 21 of the said Act. Under r.75-A of the said Rules, the power to requisition a property was conditioned by the purposes for which it could be so requisitioned, though it was left to the subjective satisfaction of the Government to decide whether it was necessary or expedient to do so. After requisition, the Central Government was authorized to deal with the property in such manner as might appear to it to be expedient. The expediency in the context can only mean expediency in relation to the purposes for which the property was requisitioned. The wide import of the word "expedient" in Sub-s. (2) must necessarily be limited to the purposes under sub-s. (1) as otherwise we would be attributing to the Legislature an intention to confer a power on the Government to requisition a property on false pretenses. Act 17 of 1947 was enacted to provide for the continuance of certain emergency 324 powers in relation to land which, when the Defence of India Act expired, was subject to requisition effected under the rules made under that Act. "Requisitioned land" was defined to mean an immovable property which at the commencement of the said Act was subject to any requisition effected under the said rules. Under s. 3 thereof notwithstanding the expiration of the said Act and the rules made there under, the requisitioned land was continued to be subject to requisition until the expiry of the said Act, and it authorized the appropriate Government "to use or deal with any requisitioned land in such manner as may appear to it to be expedient". The object of the Act was only to continue the. requisition after the expiry of the life of the Defence of India Act and not to enlarge the powers of the Government in respect of the requisitioned land. The land requisitioned under the Ordinance continued to be subject to the requisition. The expression "continue" clearly brings out the idea that the scope of the section was only to give a further lease of life to the order which otherwise would have expired. The words "may use or deal with any requisitioned land in such manner as may appear to it to be expedient" were only a repetition of the words in r. 75-A (2) of the Rules conferring authority on the Government to do certain things in respect of requisition ; and the scope of the authority under s.3 of the 1947 Act must be similar to that under r.75-A(2) of the Rules. Under s.24 (1) of the 1952 Act, the 1947 Act was repealed. Under sub-s. (2) thereof, it was provided that on the commencement of the Act the properties which were subject to requisition under the provisions of the earlier Act shall be deemed to be property requisitioned under s.3 of the Act and that all the provisions of the Act shall apply accordingly.

Relying upon the deeming clause, it is contended that the requisition of the land and the user of the same by the Government under the 1947 Act should be deemed to be a requisition made, under 325 S. 3 of the 1952 Act, for a public purpose, being the purpose of the Union, and as that purpose, namely user by the Triveni Kala Sangam, had not ceased, the appellants were not bound to de-requisition under s. 6 of the Act. But the fiction created by s. 24 (2) of the Act would operate only upon the requisition already made. The fiction could not validate any illegal act of the Government. Therefore, the question is what was the effect of the earlier requisition under the Rules as well as under the 1947 Act. If the requisition originally made was for purposes mentioned in r.75 of the Rules and continued under s.3 of the 1947 Act only for the said purposes, under s. 3 of the 1952 Act the requisition of the property made for the said purposes would be deemed to be a requisition for a public purpose being a purpose of the Union. But the validity of the requisition could be judged on the basis of the pre-existing statutes and not on the basis of the provisions of the sections of the 1952 Act. The result is that the requisition of a property made for public purposes under r.75-A of the Rules would be deemed to be a requisition under s. 3 of the Act and all the provisions of the Act would apply accordingly.

It is said that under the Rules a requisition need not have been made for a public purpose ; but the express provisions of r, 75-A of the Rules negative this Contention. Though no notice stating the purpose is contemplated under r. 75-A of the Rules, the requisition could have been made only for the four public purposes mentioned in r. 75-A of the Rules. We have pointed out that the requisition for the said purposes only continued under the 1947 Act. The purposes for which it was requisitioned must, therefore, be deemed to be the purposes mentioned in r. 75-A of the Rules. Even if s. 5 of the Act was excluded on the ground that no notice was issued under r. 75-A of the Rules the proviso to s. 6 of the Act would be attracted. Under that proviso, where the purposes for which 326 any requisitioned property was being used ceased to exist, the Central Government shall release the property, as soon as may be, from requisition. In the present case, on the facts it is manifest that the flat was not used for any of the purposes for which it was requisitioned for a number of years ; and indeed, when the Act came into force, it was used only for locating the Triveni Kala Sangam, which is clearly, not one of the purposes for which the flat was requisitioned. If so, it must be held that the purpose for which the property was requisitioned ceased to exist and the respondents have acquired a right to be put in possession thereof under the said proviso.

Even so, the learned Attorney-General contends that the purpose for which the building is now utilised, namely for the Triveni Kala Sangam, is a public purpose' being the purpose of the Union, within the meaning of s. 3 of the Act, and, therefore, the respondents are not entitled for derequisition under the proviso to s. 6 of the Act.

It is argued that every Union purpose is a public purpose.

The argument proceeds that under the Constitution the Parliament may make laws with respect to any of the matters enumerated in List I of the Seventh Schedule to the Constitution, and also in respect of any matters enumerated in List III thereof, that under Art. 73 the executive power of the Union extends to the said matters and that, therefore, the requisition of property made for any of the purposes connected with such matters, whether in regard thereof laws were made or not, would be a requisition for a public purpose, being a purpose of the Union, within the meaning of B. 3(1) of the 1952 Act. In support of this contention reliance is placed upon the decision of this court in The State of Bombay v. Ali Gulshan (1). There is a fallacy underlying this argument. The (1) [1955] 2 S. C. R. 867.

327 effect of the fiction is that the requisition made under r. 75-A of the Rules is a requisition under s. 3 of the 1952 Act, that is, if the requisition was made for purposes mentioned in r. 75-A of the Rules, it would be deemed to be one for a public purpose, being the purpose of the Union, within the meaning of s. 3 of the 1952 Act. The criterion is not, therefore, whether a particular purpose for which a building was used when the Act came into force was a public purpose, being the purpose of the Union, within the meaning of s..3 of the 1952 Act, but whether it was requisitioned for one of the purposes mentioned in r. 74-A of the Rules.

If those purposes ceased to exist, the proviso to s. 6 of the 1952 Act made it obligatory for the Government to release the property. As the flat was being used for a purpose other than that for which it was requisitioned, the respondents were entitled to be put in possession thereof.

In this view, we do not propose to express our opinion on the validity of the contention raised by the learned Attorney-General based upon the decision of this Court.

In the result the appeal fails and is dismissed. Costs will be governed by the order dated 11-8-61.

Appeal dismissed.

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