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repealed the Requisitioned Land (Continuance of Powers) Act, 1947, a fiction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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