Roy Estate Vs. State of
Jharkhand & Ors. [2009] INSC 871 (1 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3146 OF 2009 @ Special
Leave Petition (Civil) No.116 of 2008 Roy Estate ......Appellant Versus State
of Jharkhand & Ors. ...... Respondents
HARJIT SINGH BEDI, J.
1.
Leave
Granted.
2.
The
facts leading to the appeal are as under: The property in dispute known as
`Katras House' built over an area of 1.7 acres of land on Circular Road, Ranchi
was purchased by Late Shri Ganesh Chandra Dey vide registered sale deed dated
26th January 1933. World War-II broke out on 3rd September 1939 on which the
Viceroy promulgated the Defence of India Ordinance 1939 under which the Defence
of India Rules were issued. On 25th April 1942, Rule 75 A was inserted in the
Defence of India Rules empowering the Central Government to requisition any
property necessary or expedient for securing the defence of British India and
other related matters. Japan entered World War-II on the side of Nazi Germany
on the 7th December 1941, after its attack on the United States Seventh Fleet
in Pearl Harbour, Hawai and soon after a string of victories over the Allies in
South East Asia and upto Burma brought the Imperial Japanese Army to India's
Eastern doorstep. It was thereafter thought prudent to shift the headquarters
of the Indian Army's Eastern Command from Kolkata to Ranchi. Vast areas of land
and other residential property were accordingly requisitioned under Rule 75 (A)
ibid. Katras House too was requisitioned for this purpose. The World War ended
in 1945 but the property continued to be remaining under requisition. The
Requisitioning and Acquisitioning of Immovable Property Act 1952 ( hereinafter
called `the Act') was thereafter promulgated and Section 23 thereof provided
that all the old requisitions were now deemed to have been made under Section 3
of the Act but by virtue of an amendment made in 1970 Section 6 (1-A), the
Central Government was not authorized to retain any property under requisition
for a period beyond 17 years. The Deputy Commissioner, Ranchi however, on a
misconception of the law transferred Katras House, undoubtedly a requisitioned
property, to the Civil Surgeon, Ranchi without the consent of its owner and on
vacation of the said property by the Civil Surgeon, vide by Order dated 30th
April 1958, transferred the property to the Principal, Ranchi Women's College
(Respondent no.3 herein) under Section 11 (2) (b) of the Bihar Building Lease
Rent and Eviction Control Act 1947 (hereinafter called the `Rent Act' ) subject
to a monthly payment of rent directly to the owner. In July 1995, the then
owner of the property through his attorney filed an Eviction Title suit no.8 of
1995 under the provisions of the Rent Act for eviction of Respondent no.3
alleging that the college was a tenant in the demised premises. Respondent No.
3 as well as the Deputy Commissioner, Ranchi appeared in the said Suit 4 as
Defendants and filed their written statements. Respondent no.3 took a
categorical stand that Katras House had been requisitioned for purposes of the
Army during World War-II and had been allotted to it by the Deputy Commissioner
under the Act, and an application for its vacation would lie before the Deputy
Commissioner, and as such the Court Civil had no jurisdiction to entertain the
Suit. This Suit was eventually dismissed in default for non-prosecution in the
year 1998.
The compensation
payable under Section 8 (2) of the Act was, however, regularly paid by
Respondent no.3 to the owner.
Katras House was
purchased by Shri L.N. Dey from its owner by a registered sale deed dated 9th
January 2001 and pursuant thereto the necessary mutations were made in the
revenue record and it is the admitted position that the rent/compensation is
now being received by the new owner.
It is the case of the
Appellant that a letter dated 23rd November 2002 was received from the
Administrator, Ranchi Municipal Corporation that on inspection it had been
found that Katras House was in a dangerous and uninhabitable state and a
direction was issued under Section 247 (1) of the 5 Ranchi Municipal
Corporation Act 2001 that the building which had been declared as dangerous,
should either be demolished or subjected to extensive repairs to make it
habitable. The Appellant thereupon served a copy of this notice on the Deputy
Commissioner on 8th July 2003 requesting him to de-requisition the building so
that it could be demolished or repaired, as the case may be, failing which
there was a possibility that the girls residing in the building which was being
used as a hostel, may suffer some injury.
The request of the
Appellant was accepted and an order was made by the Deputy Commissioner on 8th
July 2003, de- requisitioning the property and directing its return to its
owner. Vide order dated 25th August 2003, however, the Deputy Commissioner, in
partial supersession of the order of 8th July 2003, referred the matter to the
Secretary, Human Resource Development, Government of Jharkhand, Ranchi and the
Vice Chancellor, Ranchi University to take a final decision with respect to the
ownership and title of the said property. On receiving the revised order, the
Appellant approached the Secretary, Department of Education on 14th 6 October
2003 giving evidence as to his ownership of the property. The Joint Secretary
of the Ministry, however, wrote a letter of 1st March 2004 to the Secretary,
Building & Construction Department to arrange for an inspection of the
property and to ascertain as to whether it was unsafe and unfit for habitation.
The inspection was held over several days in May & June 2004 and a report
was tendered that as the building had been constructed before the year 1919 and
as the quality of the construction had deteriorated, the building was no longer
fit for habitation. This report was forwarded to the Secretary, Human Resource
Development Department by the Chief Engineer, Building Construction Department
on 21st June 2004 but it appears that no result followed on which the Appellant
filed Writ Petition (Civil) No.4955 of 2004 in the High Court seeking a
direction to the Respondents, specifically to Respondent No.3 to relinquish the
possession of the property forthwith to the owner so that the building could be
demolished or repaired to make it safe. Respondent No.3 filed its counter
affidavit admitting that Katras House had been originally requisitioned for
Army purposes during World War- 7 II and had later been allotted to the Civil
Surgeon and on its vacation by the Civil Surgeon, had been allotted to the
respondent on 30th April 1958 under Section 11(2)(b) of the Rent Act and that
it had been in use as a hostel for girls for more than 45 years. The matter was
heard by a learned Single Judge, who in his Judgment dated 20th September 2005
observed that it was not possible to determine the question of right, title and
possession over the land and building in writ proceedings under Article 226 of
the Constitution of India and that this matter could not be decided by the
Secretary, Human Resource Development Department or the Vice Chancellor of the
Ranchi University and therefore, the Order dated 25th August 2003 was bad to
extent. It was, however, left to the Competent Authority under the `Act' to
determine whether the building in question should be de-requisitioned or
retained by the Government.
3.
Aggrieved
by the aforesaid Judgment, the Appellant preferred a Letters Patent Appeal
before the Division Bench on 6th January 2006, but simultaneously pursued the
liberty granted by the Single Bench in the judgment dated 8 20th December 2005
and filed a representation before the Deputy Commissioner, Ranchi (being the
Competent Authority under the Act) seeking an order of de-requisition of Katras
House. The Deputy Commissioner by his Order dated 4th April 2006 ordered that
the property should be released and handed over to the Appellant with effect
from 4th April 2006. Faced with this situation Respondent No.3, the Principal,
Women's College, Ranchi filed Title Suit No.134 of 2006 in the Court of the
Munsif, Ranchi challenging the Order dated 4th April 2006 pleading that the
aforesaid Order was without jurisdiction and also seeking on interim injunction
during the pendency of the Suit. The Appellant filed its written statement on
2nd August 2006 pleading inter alia that the jurisdiction of the Civil Court
was barred under Section 19 of the Act, and also an application under Order
VII, Rule 11 of the CPC that the question of jurisdiction be treated as a
preliminary issue. This prayer was rejected by the Munsif vide Order dated 14th
November 2006. The Appellant thereupon preferred Writ Petition (Civil) No.7497
of 2006 pleading that the proceeding before the Civil Court were barred by
Sections 9 18 and 19 of the Act. The High Court disposed off the writ petition
with the direction that the Munsif should re-consider the pleas raised in the
application aforesaid without being prejudiced by his earlier Order dated 14th
November 2006.
This order of the
High Court was challenged by way of a Letter Patent Appeal. The Appellant also
moved an application for review of the Order dated 14th November 2006 which too
was rejected. These facts were brought to the notice of the Division Bench of
the High Court in the Letters Patent Appeal proceedings vide an affidavit dated
7th September 2007. The High Court, however, by its Judgment and Order dated
1st October 2007, dismissed the Letters Patent Appeal in spite of the changed
circumstances holding that the remedy of the Appellant lay elsewhere and that
it was for the Civil Court to decide the question of jurisdiction raised in the
application under Order 7 Rule 11 of the CPC. It is in these circumstances that
the matter is before us by way of Special Leave Petition.
4.
Several
arguments have been addressed before us by Mr. K. Venugopal, the learned Senior
Advocate for the appellant.
10 He has emphasized
that it was the admitted position that Katras House had been requisitioned
under Rule 75 A of the Defence of India Rules in the year 1942 and by operation
of law, the said requisition would now deemed to have been made under the Act.
He has pointed out that the Order of the Division Bench observing that only the
Civil Court could to go into the matter was not in accordance with law as the
provisions of the Act were applicable and Section 19 thereof specifically
barred any proceedings before the Civil Court. He has further pointed out that
Respondent No.3 in its written statement filed in 1995 in the eviction suit
filed by the power of attorney holder of the earlier owner had admitted that
the property had been requisitioned for the army and had pleaded that proceedings
before the Civil Court were barred. He has pointed out that this volte face had
been made in order to frustrate the Order of the Deputy Commissioner dated 4th
April 2006 which had been validly made under Section 6 (1A) of the Act. He has
further pointed out that the requisition of a property could not continue
indefinitely as the original purpose of the requisition had ceased to exist and
more particularly as the requisition could not continue beyond the year 1987
i.e. a period of 17 years from the year 1970 as provided by Section 6 (1A)
ibidem. For these two submissions Mr. Venugopal has placed reliance on H.D.
Vora vs. State of Maharashtra and Ors. (1984) 2 SCC 337, and Grahak SCC 192.
Mr. Venugopal has further pointed out that the Deputy Commissioner was not
authorized to transfer Katras House to Respondent No.3 vide Order dated 30th
April 1958 purportedly under Section 11 (2) of the Act as the conditions for
the applicability of this provision did not exist. He has also pleaded that as
RespondentNo.3 in the Suit filed in the year 1995 had claimed that the Civil
Court had no jurisdiction in the matter, it was now estopped from the claiming
to the contrary and saying that the Civil Court had the jurisdiction in
proceedings which were now pending in the Civil Court.
5.
Mr.
Dholakia, the learned senior counsel appearing for Respondent No.3 has, at the
very outset, very fairly conceded, that the question of title was not disputed
but as the question as to whether the relationship of landlord and tenant existed
12 inter se the parties was a matter which could be examined only by the Civil
Court and that this procedure that had been adopted by the respondent by filing
a civil suit challenging the order dated 4th April, 2006 of de-requisition made
by the Deputy Commissioner.
6.
We
have heard the learned counsel for the parties and gone through the record.
Although, a feeble attempt has been made by the learned counsel for the
Respondent doubting the factum of the requisition made in the year 1942 for the
purpose of the Army, it stands virtually admitted now that such an order had
indeed been made under Rule 75 A of the Defence of India Rules. It is also the
conceded position that by virtue of various provisions made in subsequent laws,
the said order would now be deemed to be one made under Section 3 of the Act.
In this view of the matter, the question would arise as to whether the Civil
Court would have jurisdiction in the matter or that the remedy of the parties
elsewhere. It is significant that in the civil suit filed in the year 1995 by
the previous owner of the property, a comprehensive written statement had been
filed by the Principal of 13 Respondent No.3, and the positive stand taken was
that the building in question had been requisitioned by the Deputy
Commissioner-cum-District Magistrate, Ranchi for military purposes under the
Defence of India Rules in the year 1942 and that the Deputy Commissioner had
allotted the said premises to the Ranchi Women's College by order dated 4th
April 1958 under Section 11 (2) of the Rent Act and as such the civil suit was
barred and the remedy for de-requisition lay only before the Competent
Authority, that is the Deputy Commissioner-cum-District Magistrate, Ranchi.
Concededly, this suit was dismissed in default and was not pursued any further.
It is equally true that the appellant herein too has taken a vacillating stand
with regard to the jurisdiction of the Civil Court or otherwise in other legal
proceedings inter se the parties. However, as per findings of all the Courts
and as per written statement filed, the fact that the property had indeed been
requisitioned in the year1942 under Rule 75 A of the Defence of India Rules
stands virtually admitted. In this view of the matter the controversy would be
covered by Sections 3, 6 & 19 of the Act.
7.
Section
3 of this Act gives power to the Competent Authority to requisition any
immovable property for any public purpose, being a purpose of the Union and
Section 4 thereof gives the power to the Competent Authority to take over the
possession of the requisitioned property. Section 6 deals with release from
requisition and insofar as is relevant, is reproduced below:
6. Release from
requisitioning.
(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
changes caused by reasonable wear and tear and irresistible force:
Provided that where
the purposes for which any requisitioned property was being used cease to
exist, the Central Government shall, unless the property is acquired under
section 7, release that property, as soon as may be, from requisition.
"(1-A)
Notwithstanding anything contained in sub-section (1), the Central Government
shall release from requisition, - 15 (a) any property requisitioned or deemed
to be requisitioned under this Act before the commencement of Requisitioning
and Acquisition of Immovable Property (Amendment) Act, 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.] (2) Where any property is to be
released from requisition, [under sub-section (1) or under sub-section (1-A)]
the competent authority may, after such inquiry, if any, as it may in any case
consider necessary to make or cause to be made, specify by order in writing the
person to whom possession of the property shall be given and such possession
shall, as far as practicable, be given to the person from whom possession was
taken at the time of the requisition or to the successors-in- interest of such
person.
16 [3] The delivery
of possession of the property to the person specified in an order under
sub-section (2) shall be full discharge of the Central Government from all
liability in respect of the property, but shall not prejudice any rights in
respect of the property which any other person may be entitled by due process
of law to enforce against the person to whom possession of the property is
given.
8.
A
bare perusal of Section 6 (1-A) and 6(2) would show that the property cannot be
requisitioned permanently and that the maximum period fixed by the Amendment
Act of 1970 is 17 years from that date and that Section 6 (2) further provides
that unless the requisitioned property is acquired under Section 7 within the
period of 17 years aforesaid, it shall be released to its owner and as far as
practicable, be given to the person from whom the possession had been taken at
the time of the requisition or to the successor in interest of such person.
Concededly, the appellant herein is the successor in interest of the owner from
whom the property had been requisitioned in the year 1942. It is, therefore,
17 obvious that the requisition could not have been continued beyond the year
1987 unless the property had been acquired, which is concededly not the case
before us.
9.
Mr.
Dholakia has, however, emphasized that the status inter se the parties was that
of landlord and tenant, the appellant being the landlord, and as the appellant
had been accepting rent and had also sought and received an enhancement thereof
on several occasions , the suit could not be dismissed on the ground that the
civil court's jurisdiction was barred. We are of the opinion, however, that the
payment of rent in such matters would not change the legal position with regard
to the rights and obligations of the requisitioning authority and the person
from whom the property had been requisitioned. It is impossible to accept the
plea that if the appellant whose property has been requisitioned in desperation
seeks an enhancement of the rent, that would ipso-facto create a tenancy so as
to preclude the obligations imposed on the Central Government under the Act.
While repelling a similar submission in H.D. Vora's case this is what this
Court had to say:
18 "There was
also one other contention urged on behalf of the appellant in a desperate
attempt to protect his possession of the flat and that contention was, since he
had paid rent of the flat to Rukmanibai and such rent was accepted by her, he
had become a direct tenant of Rukmanibai and the order of requisition had
become totally irrelevant so far as his possession of the flat is concerned.
This contention is, in our opinion, wholly unfounded. The appellant admittedly
came into occupation of the flat as an allottee under the order of requisition
passed by the State Government and even if any rent was paid by the appellant
to Rukmanibai and such rent was accepted by her, it did not have the effect of
putting an end to the order or requisition. The appellant was an allottee of
the flat under the order of requisition and he was liable to pay compensation
for the use and occupation of the flat to the State Government and the State
Government was in its turn liable to pay compensation to Rukmanibai for the
requisitioning of the flat and if, therefore, instead of the appellant paying
compensation to the State Government and the State Government making payment of
an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai
with the express or any event implied assent of the State Government, the order
of requisition could not cease to be valid and effective. It did not matter at
all whether the appellant described the amount paid by him to Rukkanibai as
rent, because whatever was done by him was under the order of requisition and
so long as the order of requisition stood, his possession of the flat was
attributable only to the order of requisition and no payment of an amount
described as rent could possibly alter the nature of his occupation of the flat
or make him a tenant of Rukmanibai in respect of the flat".
Some of the
observations in H.D. Vora's case were modified on some other matters in Grahak
Sanstha Manch case (Supra) but the observation in paragraph 7 afore-quoted were
duly affirmed.
10.
To
our mind there exists yet another circumstance which militates against the case
of Respondent No. 3 with regard to the creation of a tenancy vis-`-vis the
appellant. Admittedly, Respondent No.3 had been inducted into Katras House
under the order of the Deputy Commissioner dated 30th April 1958, under Section
11 (2) of the Rent Act. This provision reads as under:
"(2) (a) Where a
servant of the Government in possession of any building as a tenant intends to
vacate 20 such building, he shall give fifteen day's previous notice in
writing of his intention to do so to the landlord, and to the District
Magistrate who shall under intimation to the landlord, within a week of the
receipt of the notice either allot building to any other servant of the
Government whom the District Magistrate thinks suitable, subject to the payment
of rent, and the observance of the conditions of the tenancy by such servant of
the Government, or direct that the landlord shall be put in possession of the
building:
Provided that when no
such order is passed by the District Magistrate, the landlord shall be deemed
to have been put in possession of the building.
(a] xxx xxx xxx xxx
(b) Where a building is vacated by a servant of the Government, any person
occupying such building other than the persons referred to in clause (a) shall
be liable to be evicted by the District Magistrate in such manner as may be
prescribed:
Provided that, after
a landlord has been or is deemed to have been put in possession of such
building, he may let it to any person".
11.
It
would be clear from a bare perusal of Section 11(2) (a) that it postulates
several conditions for the transfer of a building already in possession of a
Servant of the Government to any other servant of the Government, but it does
not authorize the transfer of such a building to any other person.
It has been conceded
before us that respondent No.3, the Ranchi Women's College, is not run or
controlled by the Government but is a private college under private management.
To our mind, therefore, the very order of allotment made on 30th April, 1958
was completely unauthorized. Concededly also Katras House was under requisition
with the Union of India for purpose of the Union and there is no provision
under the Act for transfer of such a property to any other person. Even
assuming for a moment, the Act did authorize such a transfer, the condition of
transfer visualized under section 11(2)(a) did not exist and the transfer was
thus, bad at the very outset.
12.
In
this background, the question now arises is as to whether the jurisdiction of the
Civil Court was barred and whether the appellant should undergo a trial on
facts which are admitted. Section 19 of the Act is reproduced hereunder:
"Save as
otherwise expressly provided in this Act, no civil court shall have
jurisdiction in respect of any matter which the competent authority or
arbitrator is empowered by or under this Act to determine, and no injunction
shall be granted by any court or other authority in respect of any action taken
or to be taken in pursuance of any power conferred by or under this Act".
13.
A
bare perusal of this provision would show that it is only the Competent
Authority (read Deputy Commissioner) who would have jurisdiction in respect of
any matter under the Act, and the jurisdiction of the Civil Court was
explicitly barred. We also find that in the suit filed in the year 1995,
Respondent No.3 had taken a specific plea that it was only the Competent
Authority under the Act who could make an order of de-requisition sought by the
owner and the jurisdiction of the Civil Court was barred. Mr. Dholakia has,
however, (and rightly), pointed out that Appellant too had been taken a 23
vacillating stand in a different set of proceedings. We find that both
appellant and the respondent have been equally ambivalent with respect to their
relationship and rights inter- se with the sole purpose of defeating the other
party's rights by whatever means possible. To our mind, this ambivalence would
not be determinative of the legal issues that have been raised on the basis of admitted
facts. It is the admitted fact that the property had been requisitioned in the
year 1942 for Army purposes under Rule 75 A of the Defence of India Rules which
would be deemed to be a requisition under Section 3 of the Act. The maximum
period for requisition in such cases is 17 years and ought to have ended in the
year 1987, but has in fact continued for almost 22 years thereafter. The
creation of the so called tenancy in favour of a respondent of a requisitioned
property is not visualized under the Act and even otherwise the conditions for
the creation of such a tenancy by virtue of Section 11 (2) of the Rent Act do
not exist.
The Competent
Authority under the Act was, therefore, under an obligation imposed under
Section 6(2) to return it to its owner. To our mind, therefore, the
observations of the Munsif and High Court, that the appellant must have his
remedies in the Civil Court is adding insult to injury in a situation where
almost none of the material facts are in dispute.
14.
Mr.
Venugopal has also raised a plea of estoppel based on the conflicting stand on
the question of jurisdiction taken by respondent no.3 from time to time. In
view of the fact that the appellant has been equally guilty of a similar stand
and our findings on the other issues, we are disinclined to go into this
aspect.
15.
We
accordingly allow the appeal, set aside the Order of the Division Bench and
direct that Katras House and the entire requisitioned property shall be
released in favour of the appellant by the end of this year. The respondent is
directed to pay all the arrears of rent due as of now and the rent upto
December and also files an undertaking to vacate the premises as ordered within
a period of two months from today.
Should such an
undertaking not be filed, we issue a direction to the Competent Authority, that
is the Deputy Commissioner, Ranchi to take steps to evict the respondent and
hand over the property to the appellant forthwith. The appellant will also have
its costs from Respondent No.3 which we determine at Rs. One lakh.
...................................J.
(DALVEER BHANDARI)
..................................J.
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