Madan Gopal Agarwal Vs. District
Magistrate, Allahabad & Ors  INSC 253 (10 October 1972)
BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 2656 1973 SCR (2) 610
CITATOR INFO :
R 1974 SC 87 (11)
U.P. (Temporary) Accommodation Requisition
Act, 1947, S.3Order of requisition made without hearing to owner occupant
The appellant's house in Allahabad was let
out to the State Government for a period of five years. Soon after the expiry
of the period of lease in September 1969 the District Magistrate passed an
order under s.3 of the U.P. (Temporary) Accommodation Requisition Act 1947
requisitioning the house to provide accommodation to a public servant. The
appellant was asked to hand over possession of the house 'Within 24 hours after
the expiry of 15 days from the date of the service of the order on him. He
challenged the order in a petition under Art. 226 of the Constitution on the
ground that the order was issued without issuing any notice to him and without
giving him a hearing. The High Court dismissed the petition taking the view
that since the house was taken away from the appellant's use for a temporary
period only he did not stand deprived of his property, and, therefore a detailed
procedure was not necessary. The appellant filed an appeal in this Court by
Allowing the appeal,
HELD : Although s.3.of the Act does not
contain an express provision for notice and hearing before the making of the
requisitioning order. such a provision is to be read there by necessary
implication. The object of the provision is to requisition an immovable
property. Requisitioning of the property deprives the owner of the property of
the right to hold and enjoy the property as lie likes. The right to hold and
enjoy the property is a cherished right. It is difficult to assume that the
legislature would have intended to deprive him of his cherished right without
notice and hearing. [613C] Under the main part of s.3, the District Magistrate,
after making up his mind as to the existence of a public purpose to warrant the
making of an order of requisition,, has to decide whether, in view of that
public purpose, he has to requisition a particular accommodation. He has to
consider the suitability of the accommodation in the light of its location,
size and compensation payable. These are objective factors, and, there is no
reason why the District Magistrate should not hear the owner of the
accommodation proposed to be requisitioned on these matters. Under the first
proviso to the section, the District Magistrate has to consider whether the
building or part of a building is used for religious worship. Under the second
proviso the District Magistrate is to see whether suitable alternative
accommodation is available for the person in actual possession of the property.
These matters cannot be fairly and satisfactorily determined without giving a
hearing to the owner or the person in occupation of the property. [613 H-614 G]
It is necessary to bear in mind that the Act does not provide for any appeal or
revision from the order of the District Magistrate under s.3. The District
Magistrate is constituted the plenary authority. It seems reason611 able to
think that the legislature intended that an order under s-3 should be made
after notice and hearing, so that no unfairness is done to anyone.
An elaborate procedure is not necessary. The
barest minimum, however is a fair hearing. Notice should be given to the person
who will be affected by the order of requisition asking him to show cause why
his accommodation should not be requisitioned. He should be given reasonable
time to file his reply to the notice. In some cases it may be necessary to give
him an opportunity of producing his oral and documentary evidence. [615B] The
contention that since an order under s.3 is administrative it is not necessary
to hear the affected party could not be accepted. This Court, in Kraipak held
that rules of ,natural justice will apply to administrative enquiries. The
decisions in Daud Ahmad and K. R. Err v hold that in an enactment which
deprives a person of his property, there 'is necessarily implied the
pre-requisite of a hearing. [617F] The order of requisition in the present case
having been made without a heating must be held to be illegal.
A. K. Kraipak and others v. Union of India,
 1 S.C.R.
457, Daud Ahmad v. The District Magistrate,
Allahabad and others, A.I.R. 1972 S.C. 896 State of Punjab v. K. R. Erry and
Sobhag Rai Mehta,  2S.C.R. 405, applied.
Province of Bombay v. Kusaldas S. Advani and
others,  S.C.R. 621, Ram Chandra v. The District Magistrate of Aligarh
and Others, A.I.R. 1953 Allahabad 520, The State of Bombay v. Bhanji Munji and
another, ) 1 S.C.R., 777 and Collector of Akola and others v. Ramchandra
and others,  1 S.C.R. 401 distinguished.
CIVIL, APPELLATE JURISDICTION : Civil Appeal
No. 80 of 1972.
Appeal by certificate from the judgment and
order dated January 23, 1970 of the Allahabad High Court in Civil Misc.
Writ No. 392 of 1970.
V. M. Tarkunde J. B. Goyal and R. A. Gupta,
for the appellant.
G. N. Dikshit and M. V. Goswami, for the
The Judgment of the Court was delivered by.
DWIVEDI, J.-The appellant is the owner of 32,
Balrampur House, Mumfordganj, Allahabad. After residing therein for some time,
he started living in 33 Pan Dariba, Allahabad with his mother. His own house he
let out on September 9, 1964 to the State Government for a period of 5 yearson
a I monthly rent of Rs. 300/-. The State Government obtained the lease for the
purposes of residence or Office of the Directorate of Geology and Mining, U.P.
The lease was signed by Shri P. N. Singh, Geologist, 612 on behalf of the State
Government. In 1967 the appellant had shifted from the house No. 33, Pan Dariba
to house No. 39,8/5, Meerapur, Allahabad. In Meerapur he was living as a
The period of lease with respect to Ms own
house expired on September 9, 1969. The District Magistrate, Allahabad passed
an order under S. 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947
(hereinafter referred to as the Act). The order was made on October 4, 1969. By
the order the District Magistrate requisitioned the house to provide
accommodation to Shri P. N. Singh, Geologist, Directorate of Geology and Mining,
U.P. The appellant was directed to hand over possession of the house within 24
hours after the expiry of 15 days from the date of the service of the order on
The appellant filed a writ petition in the
Allahabad High Court challenging the validity of the order. One of the grounds
of challenge was that the order was made without issuing any notice to him and
without giving him a hearing.
The petition was dismissed summarily by a
Division Bench of the High Court. The argument of want of notice and hearing
was not accepted by the High Court. Feeling aggrieved with the decision of the
High Court, the appellant has filed this appeal by special leave.
Counsel for the appellant has submitted
before us that the requisitioning order is invalid for want of notice and
hearing. Counsel for the District Magistrate says that we should not entertain
the argument as it was not raised before the High Court. But we are satisfied
on a reading of the judgment of the High Court that the point was raised by the
appellant before the High Court. Rejecting the argument, the High Court said :
"Where a person is being deprived of his property, it can be said that he
should be given an opportunity before the land is acquired; but by requisition
the property is taken away from his use for a temporary period and for such
requisition such a detailed procedure is not necessary. We are of opinion that
the order of requisition is not invalid, nor can s. 3 of the Act be said to be
ultra vires simply because it does not provide for a show cause notice to be
served on the owner before the order of requisition can be passed." Coming
to the argument, s. 3 of the Act reads "If in the opinion of the District
Magistrate it is necessary to requisition any accommodation for any public purpose,
he may, by order in writing, requisition such accommodation and may direct that
the possession thereof shall be delivered to him within such period as may be
specified in the order, provided that the period 613 so specified shall not be
less than 15 days from the date of the service of the order;
Provided also that no building or part of a
building exclusively used for religious worship shall be requisitioned under
Provided further that no accommodation which
is in the actual occupation of any person shall be requisitioned unless the
District Magistrate is further of the opinion that suitable alternative
accommodation exists for his needs or has been provided to him." The
section consists, of three parts : the main part and the Iwo provisos Evidently
it does not contain an express provision for notice and hearing before the
making of the requisitioning order. But it appears to us that such a provision
is to be read thereby necessary implication. The object of the provision is to
requisition an immovable property. Requisitioning of the property deprives the
owner of the property of the right to hold and enjoy the property as he likes.
The right to hold and enjoy the property is a cherish right. It is true that
the Act is a temporary measure, but it has remained on the statute book for 25
years. There is acute scarcity of accommodation in the State, and an
accommodation once requisitioned is ordinarily not expected to be restored
early to the owner. We find it difficult to assume that the legislature would
have intended to deprive him of his cherished right without notice and hearing.
The District Magistrate may requisition an
accommodation if he is of opinion that it is necessary to requisition it for
any public purpose. He is accordingly to make up his mind on two matters : (1)
there exists a public purpose to warrant the making of an order of requisition;
and (2) in view of that public purpose it is necessary to requisition a
particular accommodation. On the second aspect he shall have to consider whether
the particular accommodation is adequate for the public purpose for which the
requisitioning order is sought to be made. For instance, if a particular
accommodation is sought to be requisitioned for any public office, the District
Magistrate has to satisfy himself whether it is sufficient for the needs of
that public office and whether its location and structure are suitable for that
office. He should also consider whether any other equally good or better
accommodation may be requisitioned for that public office on payment of a
lesser amount of compensation than the one which will be payable for the
particular accommodation proposed to be requisitioned. These are objective
factors, and there is no reason why the District Magistrate should not hear the
owner of the accommodation proposed to be requisitioned on these matters. The
owner may 614 suggest to him equally good accommodation for the public office
for which the Government will be required to pay a lesser amount of
compensation than the one which-will be payable for his accommodation.
The first proviso to s. 3 provides that no
building or part of a building "specially used for religious worship"
shall be requisitioned by the District Magistrate. Whether a building or part
of a building is being exclusively used for religious worship, is a question of
fact. In some cases it may become a hotly disputed question. The District
Magistrate may be informed by his subordinates that the building is not being
used at all or is being used partially for religious worship; the owner, on the
other hand, may assert that the building is being used exclusively for
religious worship. Fairness, demands that the District Magistrate should hear
the owner of the accommodation sought to be requisitioned by him, so that the owner
may be able to satisfy him in any particular, case that the building is being
exclusively used for religious worship. It seems to us that the first proviso
strongly suggests the implication of notice and hearing in the main part of s.
The second proviso also seems to support that
inference. It provides that no accommodation "which is in the actual possession
of any person" shall be requisitioned unless the District Magistrate is of
opinion that suitable alternative accommodation exists for his needs or has
been provided to him. Here the District Magistrate has to consider two things :
(1) the accommodation sought to be requisitioned is in the actual possession of
any person; and (2) a suitable alternative accommodation exists for his needs
and has been provided to him. If the accommodation sought to be requisitioned
is actually not occupied by any person, it is not necessary to consider the
But whether the accommodation proposed to be
requisitioned is in the actual' occupation of any person or not is a question
of fact and can-not satisfactorily be determined unless the person claiming to
be ,occupying it is given a hearing by the District Magistrate. So in every
case where the District Magistrate proposes to requisition any accommodation,
it will be just and fair to hear at least the owner of the accommodation for he
may set up a claim that he is actually occupying it.
It is necessary to bear in mind that the Act
does not provide for any appeal or revision from the order of the District
Magistrate under s. 3. The District Magistrate is constituted the plenary
authority' It seems reasonable to think that the legislature intended that an
order under s. 3 should be made after notice and hearing, so that no unfairness
is done to anyone.
The High Court rejected the argument of the
appellant simply on the ground that the order of requisition deprives the owner
of 615 the property of the use thereof for a temporary period. It is not easy
to follow what the High Court meant when it said that it was not necessary to
follow "a detailed procedure." An elaborate procedure like the one
provided for in the Code of Civil Procedure could undoubtedly be not followed.
The dimension of hearing will vary according to the circumstances of each case.
The barest minimum, however, is a fair hearing. Notice should be given to the,
person who will be affected by the order of requisitioning asking him to show
why his accommodation should not be requisitioned.
He should be given reasonable time to file
his reply to the notice. In some cases it may be necessary to give him an
opportunity of producing his oral and documentary evidence.
As for instance, where he pleads that he
needs the accommodation for his own residence. The High Court disposed of the
point without examining the scheme and setting of s. 3. In our view the scheme
and setting of s. 3 imply a notice and hearing to the person who will be
affected by the proposed requisitioning order.
Counsel for the District Magistrate has
submitted that the District Magistrate acts in an administrative capacity under
s. 3. According to him, it is not necessary to hear the affected party in an
administrative proceeding. He has relied on Province of Bombay v. Bhanji Munji
and another(3) and Collector of Akola The District Magistrate of Aligarh and
others (2 ) , The State of Bombay v. Bhanji Munji and another(3) and
Collector-of Akola and others v. Ramchandra and others (4 ). In none of these
cases the issue of notice ind hearing directly arose for consideration.
In the first case, certain property was
requisitioned under s. 3 of the Bombay Land Requisition Ordinance, 1947, by an
order of the Government, dated February 6, 1948. The order was made before the
commencement of the Constitution. It was challenged by a petition in the High
Court of Bombay.
The petitioner prayed for the issue of a writ
of certiorari to quash the order. The Bombay High Court issued the writ of
certiorari. The argument on behalf of the Government in this Court was that as
the Government was acting in an administrative capacity and not in a judicial
or quasijudicial capacity, the writ of certiorari could not be issued. This
Court held that the act of requisitioning was administrative in nature and not
quasi-judicial. The argument that the existence of a public purpose required
judicial consideration was negatived. In the second case, the High Court held
that the decision of the District Magistrate that there existed a public
purpose and a particular accommodation was needed for that purpose was final
and could not be questioned in a court of law. In the third case, an
accommodation was requisitioned under the (1)  S. C. R. 621.
(3)  1 S. C. R. 777.
(2) A. 1. R. 1952 Allahabad 520.
(4)  1 S. C. R. 401.
616 Bombay Land Requisition Act, 1948. It was
held that it was for the Government to decide whether there existed a public
purpose to justify the requisitioning of accommodation. In the last case, this
Court held that the expression "public purpose" was wide enough to
include a temporary as well,, as a durable purpose. Section 5 of the Bombay
Land Requisition Act, 1948 placed no limitation on the competent authority as
to what kind of purpose would justify the exercise of power.
Counsel for the appellant has relied on A, K.
Kraipak and others v. Union of India(1), Daud Ahmad v. The District Magistrate,
Allahabad and others(2) and State of Punjab v.K. R. Erry and Sobhag Rai
Mehta(3). In A. K. Kraipak, certain Government employees of the State of Jammu
and Kashmir felt aggrieved with the selection of persons for appointment to the
Indian Forest Service. The selections were made solely on the basis of the
record of officers.
Their suitability was not decided by oral or
written examination, nor were they interviewed. A. K. Kraipak contended before
this Court that the selections were bad as they were made without following the
principles of natural justice. The contrary argument was that-the principles of
natural justice would not apply to the administrative act of selection of
officers for appointment to the Indian Forest Service. Hegde, J. said that
"the dividing line between an administrative power and a quasi-judicial
power is quite thin and is being gradually obliterated." At pages 465 and
466 of the report, the learned Judge added : "With the increase of the
power of the administrative bodies it has become necessary to provide
guidelines for the just exercise of their power. To prevent the abuse of that
power and to see that it does not become a new despotism, courts are gradually
evolving the principles to be observed while exercising such powers. In matters
like these, public good is not advanced by a rigid adherence to precedents. New
problems call for new solutions." Assuming that the committee making
selection of officers for appointment to the Indian Forest Service was
exercising administrative power, the learned Judge said : "The aim of the
rules of natural justice is to secure justice or to put it negatively to
prevent miscarriage of justice. These rules can operate only in areas not covered
by any law validly made. In other words, they do not supplant the law of the
land but supplement it. If the purpose of the rules of natural justice is to
prevent miscarriage one fails to see why those rules should be made
inapplicable to administrative enquiries. Often times it is not easy to draw
the line that demarcates administrative enquiries from judicial enquiries.
Enquiries which were considered
administrative at one time are now being considered as quasi-judicial in
(1) (1970) 1 S. C. R. 457.
(3)  2 S.C.R. 405.
(2) A. I. R. 1972 S. C. 896 617 Arriving at a
just decision is the aim of both quasijudicial enquiries as well as
administrative enquiries. An unjust decision in an administrative enquiry may
have more far reaching effect. than a decision in a quasi-judicial
enquiry." In K. R. Erry, this Court held that the pensionary right of a
superannuated Government Servant is 'property' and that his pension cannot be
reduced without giving him a hearing even though the relevant service rules do
not expressly provide for a hearing. Daud Ahmad is a direct authority for the
point before us. There the Court was concerned with an order under S. 3 of the
Act. Daud Ahmad was occupying a certain accommodation of which he was the
owner. The accommodation was requisitioned by the District Magistrate without
notice and hearing. This Court quashed the order of requisition for want of
notice and hearing. One of us (A. N. Ray J.) said : "The principle of
natural justice has been applicable to administrative enquiries or
quasi-judicial enquiries. It is the nature of the power and circumstances and
conditions under which it is exercised that will occasion the invocation of the
principle of natural justice.
Deprivation of property affects rights of a person.
If under the Requisition Act the petitioner was to be deprived of the
occupation of the premises the District Magistrate had to hold an enquiry in
order to arrive at an opinion that there existed alternative accommodation for
the petitioner or the District Magistrate was to provide alternative
accommodation." Counsel for the District Magistrate has submitted that
Daud, Ahmad is distinguishable from the present case, for there the Court was
concerned with interpreting the second proviso to s. 3. Daud Ahmad and K. R.
Erry hold that in an enactment which deprives a person of his property, there
is necessarily implied the prerequisite of hearing. These cases support our
construction that notice and hearing to the affected party is necessarily
implied in s. 3. It is not disputed on behalf of the District Magistrate that
the requisitioning order was made by him without giving notice and hearing to
the appellant. So we hold that his order is illegal.
The appeal is allowed with costs. The order
of the District Magistrate dated October 4, 1969 requisitioning the
accommodation is quashed.
G.C Appeal allowed.