Dismissed

The Union of India v. Ram Kanwar and Others

Supreme Court29 Aug 19611961 INSC 250 · [1962] 3 S.C.R. 3131961 INSC 250

Case brief

AI extract

What is this about?

Appeal by special leave against dismissal of Letters Patent appeal concerning de-requisition of a flat requisitioned under Defence of India Rules but later given to a private music school. The Court held the 30-day rule was a valid special law, so the appeal was within time, and that as the original requisition purpose had ceased, the Government had to release the flat.

What the court decided

AI extract

The Union of India versus Ram Kanwar and Others — Property and Title | Supreme Court (1962)

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313

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3 S.C.R. SUPREME COURT REPORTS

THE UNION OF INDIA

1961

Augu•t 29.

RAM KANWAR AND OTHERS

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(P. B. GA.TENDRAGADKAR, K. SuBBA RAO and

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M. HrnAYATULLAH, JJ.)

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Letters Patent Appeal-Limitation for filing-Requi"ition and de-Requi,,;tion of building-Indian Limitation Act, 1908 (.9 of 1908), s.2.9 (2) Art. 157-Punjab High Court Rules, r. Dfence of India Rules, r. 75A-Requisitioning and Acquisitwning qf Jmmorable Property Act, 1952 (30 of 19.52), u, 3, 24 (2)Tlequisitioned Land (Continuance ef Powers) Act, 1947 (XVII of 1947).

¶11

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 occu- pation by a certain officer of the Indian National Air.vays and afterwards by the officers of the Central Government. After the building was vacated by the said officers it was put in the po'5ession 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 he 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 a s barred by time and also on the merits. On appeal by special leave.

¶12

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. •

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Punjab Co-operativt Bank Ltd. v. Official Liquidator., A.LR. 1941 Lah. 57, approved.

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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 .. ii'-- 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 under s.3 of the 1952 Act, that is, the

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:ll4 SUPRE:\fE COURT REPORTS (1062)

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1161 purpose mentioned in r. 7j-A shall be deemed to be a publi~ • fht Union of l1rli l purpose of the Union ,,·ithin the n1eaning of s.3 of the ,\c~ v. In the present ca:;c as the building i11 qucstipn \'ac; being use(l T:ain Kanwar for a purpose other than that for ,,·hich it \vas originallv requisitioned u11drr r. 75-A it \·as liable to he de-requisitioned'. CrnL APPELLATE .JnusJ>J('TIOX: ri\·il Appeal X o. 3::::? of I !JGO. Appeal by 8]>C('ial lean' from tlw jwlgmcnt 11.ml order dater! Ko\·cmbcr :!I, ]);)i, of the Punjab-.t High Court (Cin.'uit He11d1) at ll<'lhi in L.P.A. o. J of 1955. JI. C. Sr:/1tlnvl, Atloo,r<y·I•'< nu11l of Inrlin, R. SP.n, H. II. /)fte/mr and '/' . .ll. Sr-u, for the appellant. A. r. J'is1rmu1tlw S"slr·i a111l S1ml<1r TJril1ri1!1tr, for the responrlents Xos. l to (i. ~ S. X. Andley, Rt1nw.,lwr1r Xath an<! T'.L !'ohm, for the respondm1t Xo. 7. l!JGI. August :!!l. The Juclgment of the Court was clelh'<'rcd 1.Jy StAbba Rao J. SuBBA H..1.0, J.-This appeal by spceial leave is preferred against the judgment of a division lwnch of tho Circuit Benrh oft.he Punjab High Court at 4t Delhi confirming that of a single ,Judge of that High Court i.isuing a writ of mnnrlam·us against the Union of India dii:ecting it to rc$tore possession of the flat requisitionrd by the s11icl Government to the respondents. Ono Ba.bu ltam was the owner of Flat No. 5, Aggarwal Building, Connaught Circus, New Delhi;• respondents l to u are hiA sons and widow. By ari""' order dated April 14, HJ43, the Government of India requisitioned the said flat under r.iii-A(I) of tho Def en co of India Rules for a period of one year from April 15, 193 to April l·I, 19-14. The saicl flat was put in tho occupation of one Hardie of the Indian National Airways. The period of requisition was extended from time to time, ancl fmally 1.Jy an order dated April 2, 1946, the flat was requi~ • sitioncd from April 15, 1!!46, until further orders

•

3S.C.R.

SUPREME COURT REPORTS 315

¶21

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 s11ffering 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 rejeoted 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 de-requisition the flat mainly on the ground that the said flat was not in use of the officers of the Central Government but wa~ put in possession of Triveni Kala Sangam, which was a private dance and music school. As no reply . was given to that request, the saill 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, l 95:l, the 'Government informed the first respondent that he could execute a lease deed in favour of t,he 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 manrlanws in the High Court of P11njab. 'rhe petition was heard by Falshaw, J., and the learned Judge issued a writ of mandcim1ts 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

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1961

¶23

The Union of India v. Ram Kanwar

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Subba Ra• J.

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3Hi SUPRE:.\lE COl:RT REPORTS [HHi~J

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1961

¶27

Tht UriCtll of ln·fi, v. llani Kanu:ar Subba Rao J.

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Rench of the Punjab High Court at Delhi. The appeal was filed within :lO clays frvm the date of the said order after cxclnrling th" time taken for obtaining certified copies of the ncc·c•ssary docnment.s hut more than :!O rla~·s thereafter. The appeal \l":lS heard by a di\·ision LcnC"h of the saicl High Court consistiug of the Chief .Justice ancl :!char Singh, .T. ~ The learned .Tudgcs held that tho appeal was filed out of time and that there was not sufficient rc·:ison for excusing the delay. They also \'t'lll into the merits of the case and agn•ccl with Fabh:nv, J., that a case had Leen nm.de nut for is.,uing :i writ. \Vith the result that the app~al mts dismissed. Hence the prnsPnt appeal.·

¶29

Learned At.torncy-Gcncrnl, allJH::iring for A. the appellants, C'ontrnds, that th" Ll'ltcrn Patc·ntappeal, it ha Ying Lcl'n filed within :10 rl:iys from the date of tho judgment of Fa"11aw, .L. was within time, and that, in an~· vie\', lun·ing rPgard to the fluid stat-0 of the law on the quPstion whether tho period prescribed hy the Limitation Act or the rule made by the High Court woulcl go\·cm that appeal, 4' there was sufficient cause for Pxcusi11g tho delay. On the merits hr' argues that. the requisition ma(]c, under r.ii).A of the Defew·c of fndia Ru!Ps (lwreinafter C"alled the Ru lei') was ('Ontimwd 11mlcr s.:~ of the Requisitioned Land (Continnanr·c of Pm\C,rs) Ad, J!J47 (Act No. li of l!14i) (hereinafter callc·cl the l!l4'i Act), wherPunclPr tlw appropriMe Gm·cm- .. ment was given the powt•r to use or dc·al with a requisit ionecl lancl in suC'h nmnner as may appear to it to be expedient, thiit in exercise of the saicl pmrcr the said Government put Trirn11i Kala Sangam in possession of the same, and that unckr s.~4(:.!) of the lfoquisitioning and Acqubitin11ing of ImmornblP Property Act, 11Jii2 (hereiuafu-r callecl the ]().);! Act). the said requisition shall be clccm(•cl to he pror.erty ~ requisit ionccl under s.:l of th" saicl ,('t and that nndcr;,; the said section the s<tid purpose must be dc('mcd to be a public purpose, Lcing the purpose· of the Union and, as that purpose did not l'Caso to exist,

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:l S.C.R. SUPREME COURT REPORTS 317

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the respondents are not entitled to ask for de-requi· ·.Alli. sition of the said flat.

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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.

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Three questions fall to be considered in this appeal, 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 neces-first contention it is neces-it is neces-is neces-

¶34

To appreciate the first contention it is neces-first contention it is neces-it is neces-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.

¶35

1961

¶36

Thf: Union OJ India v. Rarn Kanwar

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Subba Rgo J,

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:L'he Indian Limitation Act, 1908.

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"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, ........................ "

¶41

The First Schedule

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Description of appeal Period Time from of which limitation period begins to run.

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From a decree or order of any of the High Courts of Judicature at Fort William,

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1111

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SUPHE!IIE COUlt'l' REPOHTS [ HHl~J

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n. llnivn. ef lmliu v. J.',,m J,.f11oru.r

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:lfa<lras and llomlmy, 'l\n·nt\· The cliitc of or of the High Court days. the <lccrce uf Punjab in the or order. exercise of its ori«inal " juris<licl ion.

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LlT'l'HllS l'ATAS'l' FOJI Till JI JUI! l'Ol.JIT OF Lll/OJt/':.

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('fo11sc :!7. And WE <ln further ordain Lhat it shall be lawful for the High Court of Judicature at Lahurc from time (() tinw to make' rules and onkrs for regulating the practice of the Court and for tlw purpose of :1dopli11g a:< far as pussihl<' the pruYisions of the Code of Ci,·il Prucedm·<', bcin.'1 an Al"t, .No. V of ID08, passed by the Govcruor .. Gc11eral in Council and tho proYiHions of any law whic:h has been or may lie m:tde, amcn<ling or altering the same, by competent lcgislatirn authority for In<lia, to all pru<'ce<lings in its testamentary, intcsUi.tc and ma trimouial jurisdiction res pee· tively.

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(.'fo11sc JI'. An<l \Ve clo futhcr onb.in a.Ill! cleclarc that all th<' lll'oyi;;ions of thc,;e Our Ldtcrs l'atent am suhjcd· tu the lcgislatin: po\n:rs of the Gon·rnor-(;eucrnl in Legislative Council, aml also of the Co\·eruor-Genernl in Council uncle1· scc:tifJll sev"11t.y-une of the Uovcrnmcut of India Ad, l!Jl5; aml abo of the UO\·ernor-Gc1wral in eases of emcrge11cy under section seyc11ty-two of that Ad, a11c.l may uo in all rc,;pectK arucndecl aml altBrecl thercl,y. H1de6 cind Urda.; of the Iriyh Cuurt of l'll11jctb.

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Huie 4: ~o nwn1ornnclum ofnppcal prcf«rred uu<lcr <'lansc IO of the Letters Patent shall Lo enkrtaincd if presented after th" cxpirntion of 30 days from the date of the judg!llent appealed from, unless the a<lrnitting Bewh in its cliscrctio11, for good cause shown, gra11ts further time for the presentation.

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3 S.C.R SUPREME COURT REPO!tTS

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319

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1901

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~!t is clear from the aforesaid provisions that while 1901 under Art. 151 of the Limitation Act a period of 20 The Union of Indio davs is prescribed for preferring J '-' an ap1JCal from an Ram Jtanwar v. order of the High Court of Punjab in the exercise of its Original Jurisdiction, under r. 4 of High Court Subbd Ra• J. 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

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'7 persen t case was cfoar!y 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

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• in exercise of its Original Jurisdiction to a division bench of that High Court. Under cl. 37 thereof, the provisions of the Letters Patent arc 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

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1'.Logislative 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,

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- and if there is no other limitation on that section, r. 4 of t,he High Court Rules must give way to

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,..,. 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

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... -Limitation Act in respect of an appeal covered by that rule. To stfLte it differently, if r. 4 is a special law, the Limitation Act itself must be deemed to

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3:!0 SUPREME COURT HEl'OltTS [Hl62]

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19GJ preseriLc the period of limitation mentioned umler that rule for the cla.as of cases covered bv the sai<l

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v. rule, and to that extent the rnlc derogates from Art. 151 of the First f)chedule tn the Limitation Act. Subba Uao J. Article 151 must be read subject. to the special law. In this ,·icw, th" "rgument that d. :{i of the Lett l'l'8 l'at~mt nmkt.·s the rule m,;dc by the High Court 'uLj"d to the Limitatiun Act. 'lml, thl'rcfore, that. Art. J[,l shall prev<Lil ornr r.-! has no furce. Briofly 'tatc<l, the h-gal position is this: · Und"r d. :!i of the Letters 1\1 tent, the High Court-. has pownr to make a rule prcio:cr'hintr tlw 1wriod of limitation for a Letters Patent. app<'al again,;f. an ord"r of a singl<' Judge made in exen·isc of tll<' original jurisdir·t.ion of the High Court., and L:v 1·easun ;,f cl.:!7 then·of, the said rule ie subject to the pro,·i,;ionH of the Limitation A"t; but the Limitation ,.,t itself saves th'' opera· tion of the i;aid rule. With tlw r<'oult that r. 4. applies to such au appl'al, whcn·a,; Art. Iii! of the Limitation Act will goycrn appeal8 not covered Ly r. -1 or appeals, from unlero ma<le by other High Court8 in exercise ()f their original jurisdiction, if no rule similar tor. 4 is made by the said High Court or High Courts.

¶66

. 'f ..

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In the premises t-hc only quest ion tu be decided i:; whether r. -! is a i;peci•Li law within t.he meaning of i;, :!!()of the Limitation Act. Huie j,; nrnrle hy the High Court in exercis<' of the lcgi,;l<Lti'l• power eonfcne<l upon the said Hi!(h Comt umler el. 2i of the Letter:; Patent. As tlw said rnlc is ;~ ..,.. law made in respect of speci1d "ascs eo,·crcd hy it, it would certainly be a spedal law withi11 the• meaning of s. 29(2) oft.he Limitation Act.

¶68

This view was accepted hy the PunjaL High Court in Punjnb Co-opemtz:i·e Bmz/; LM. '" Offici<il Liguidators, l'unjcib Cotton Press Company, Ltd. (in lfrtciidation) ('). There, a full bench of that High ·_·ourt held that the statutory rnles framed Ly the~ •

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tl) A.l.R. l\tll Lahore 57 ,1-. II./.

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3 S.C.R. SUPREME COURT REPORTS 321

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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 powtlt's 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 Aet 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.

¶72

1961

¶73

The UniOn of Inilia v. Ram Kanwar

¶74

Svlia Rao J.

¶75

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

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

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The Defence of India Ru lea

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Rule 75-A. (1) If in tho 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 with the requisitioning.

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x x x x x

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(2} Where .the Central Governn:.e;1t or the Provincial Government has requisitioned any property under sub-rule ( 1) that Government

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3 -~^.,,, 8Ul'H.Eil!E COUHT HEl'OH'l'::l [1962]

¶82

)!Hi I

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The Un;u11 c~f [,,./,c; . Hatll kaN<C•1r Su&ba 1:~10 J.

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may u:;c or d('al \ ith t.ho property in 8t1Ch mau11er as may appear to it to Lie cx1ieuient, aml may • ac·11nir" it J,y • Ht·n-in« on b the "" n<:r thereof, l!l' where th<" owner is not rc;iuily tract>alik or tho ownership i:; in dispute, liy pul1liohi11g i11 the oJlicial Gazette, a not.ice stat.iug th,n the Ceut ral or l'rovi11cial (;,ivernu1eut. a' the u1e may L<', ha dt'ciued to acquire it i11 pur"uan"c of tl1is rule.

¶85

The Rtgui"ilio11inr1 mul Acqui.,itioniny of I n1111ornofr Proz1erly Act, l!J(j2 (-\XX uj l!Jii2).

¶86

81 ctiuJt 2·1. (I) The Hc<]ui~itioucd ] .and (Contiuuancc of l'mrern) Act, l!J4i (XVII of I !Hi), the Delhi l'n·mi,cs (Hequisition and E,·iction) Act, l!Hi (XLIX of l!J.!i) and the Hequisitio11ing and Aequisitioni11g of Jnuno,·aulo Prop<'rt.y Ordi1w11ec, l!J5:! (III of I !l;i:!) arc hereby repcakd.

¶87

(:!) For tlw n•mo\·al uf duulit:;, it. is h<'rtLy dcdared that any property 1r}1ich immediately Lefore sueh repeal was subject tu requisitiun uuckr the pro,·isiu11s of either of the said Ads or tlw said Ordinance Kha!!, 011 the commc·uccmcnt uf thi8 Act, be deemed to L1· property requisitioned u11der SPctio11 3 of thi8 Act, and all the provi;;ions of thiti Act Hhall apply accordingly.

¶88

Scctiou 3. (!)Where tL<' competent authority is of upil1ion tlwt auy prop<'rt.y is needed or likely to be needed for any puLlic pt1rposc, bci11g a. purpose of the L nion, a.11d that the property should bo requisitioned, the competent authority-

¶89

( a) shall call upon the owner or any other perso11 who may be in possession of tho property J,y notice in writing specifying therein the purpose of the re4uisition to show cause, withi11 fifteen days

¶90

3 S.C.R. SUPREME· ' COURT ,REPOR'rS , ' ~ 323

¶91

of the date of the service of s"uch IfOtice on him, why tho property shall i:iot be requisitioned;

¶92

x x x x

¶93

1~61

¶94

The U11iol} qf l:1:iic. v. Raml)anwar

¶95

~ubba Ro,o J,

¶96

Section 6. (1) The Central Government may at·a11y time nilease from requisition any property requisitioned under this Act an? shall, as far as possible, restore the property m as good a condition as jt was when possession thereof was·taken subject only to the change caused hy reasonable wear and tear and irresistible force :

¶97

Provided that where the purpose for which any requisitioned prpperty was being used ceased to exist, the Central G:JVernment shall, un: less 'tfie propert.y 'is acquireJ l\nder section 7, release that property, as soon as may be, from requisition.

¶98

The Defence of India Rules 'vere issued under theDefence of India Ordinance, 1939, which was repealed by the ·Defence of India Act, 1939, but the said:rules were kept a1ive by virtue of the provisions-of s. 21 of the said Act. 'Under r.75-A of the said Rules, the ,power to Fequisition a property was cond\tio4ed by the pu11p'oses fol: which it could be so · requisitioned; though it was left to the subjective satisfaction of .the Gove.rnment to decide whether it was necessary or .expedient to do so. After ri;iquisition, the . Central Government was authOl:'iZcd to deal with the property in such manner as might appear tp it to be exp\ldient. The expediency in the context can only mean expediency in relation to the purposes for which the property 'rns 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 Legislatvre an.intention to confer a power- on the Goverrtm!(nt toi:equisiticm 11 proJlerty on false pretences.,. Act- l 1 of 1.94 7 'as enacted to prov'fde for tlie qotinuapce oJ cei;tain. emergency

¶99

324 SUPHE~IE COGRT HEPORTS [l!J62]

¶100

.. ,

¶101

J9GJ

¶102

J9GJ JHlwcr~ in relation tu land which, when tho Defonce T!it (J11iori of ]1;r./ia pf India Act expired, was sulijc·ct to requisition v. cffcct.cd under the rules mado und1·r that Act. "Rc- R11111 1,·u11war <JUitiitioncd land" was chefined tu mean an immov- **_Su.l,lo Rao J._** able property which at the commcriecmcnt. of the said Act was sul.>ject. tu any rer1uisit ion effected under tht> said rule,, t:mler s. :~ thereof notwit.hstanding the expiration of tho said Act and the rules made thereunder, the requisitioned land was continued to be suhjoct to rec1uisit.io11 until the expiry of the saicl Act, am! it authoriwcl the ;1ppropriate (;o,·erm1wnt "to use or deal with any requi~itioncd land in such manner as may ap1x·ar to it to he expedient". The object of the Act was only tu 0011tinuo tho requisition after the expiry of the life of the Defence of India Act and not to eJllargo the powcrs of the GO\·ernment in respect of the r"quisitioned land. The land rcquisitionl'd under tho Ordinance continued to be subject to the• requisition. The expression "continue"" elcarly brings out tho iclea that the scope of the sect.ion was only to give a further lease of life to the order which otherwise would have expired. Tho words "may use or deal with any requisitioned laud in such manner as may appear to it to be expedient" were only a repetition of the words in r. i5-A (2) of the Rules conferring authority on the Government to do certnin things in respect of requisition ; and t.he scope of the authority under s.3 of the l!J4 7 Act must be similar to that under r.7ii-A(2) of the l{ules. Under s.24 (!) of the Hlii2 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 roquisition under the provisions of the earlier Act shall be deemed t-0 l.>e property requisitioned under s.3 of the Act and that all tho provisions of the Act shall apply accordingly.

¶103

Relying upon the clooming clause, it is contended th11t 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

¶104

325

¶105

3 S.C.R. SUPREME COURT REPORTS

¶106

.,..,

¶107

19fiJ

¶108

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 imder s. 6 of the Act. But the fiction created by s. 24 (2) of the Act would operate only upon the requisition already mde. The fiction could not validate any illegal act of the Government. Therefore, the question is what was the effect of the earlier re•1uisition urnler the Rules as well as under the 1947 Act. If the requisition orginally made was for purposes mentioned in r.75 of the Rules and continued under s.3 of the 194 7 Act only for the said purposes, under s. 3 of the 1952 Act the requisition of the property m'lde for the said purposes would be deemed to be a requisition for a public purpose being a purpose of the Union. But the validitv of the requisition could be judged on the basis or' the pre-existing statutes and not on the basis of the provisions of the sections of the 19.52 Act. The result is that the rPquisition of a property made for public purposes under r. 75-A of the Rules would be deemed to l-e 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 flCgative this contention. Though no notice statinrr - n the" purpose is contemplated under r. 75-A of the Rules the requisition could have been made only for th four public purposes mentioned in r. 7/i-A of the Rulee. We have poip.ted out that the requisition for the said purposes only continued under the 1947 Act. The purposes for which it was requisitioned must, therefore, he 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 wae 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

¶109

The Union of [ndin v. Ram Kaiiwar

Subba Raa J.

...

326 SUPREME COURT REPORTS [1962]

¶114

1961 any requisitioned property was being used ceased Tht Union of l1"1ia to exist, the Central Governm<'nt shall release the **_!lam 1.·amFu_** v. property, as soon as may hP, from requisition. In the prcsrnt case, on thP facts it is manifest that tho **_Subf,(J Rao ,1._** flat was not 11"ecl for :my of thP puq>oses for which it was rcqnisitir,nccl for a numhPr of year;;; and indc<>d, wh<>n the A('t came into force, it "·as used only for loPating the Tri'cni Kain Sangam, which is clearly not one of the purposes for which the flat was requisitioned. If so, it mnst be hclu that the purpoHe for which the property was requisitioned ccasNl to rxi:;t ancl the r<>spondcnts luwo acquired a right to be put. in posst>s~ion thereof unclcr tho Raicl proviso.

¶115

·-

¶116

Evon so, the leamcd Att.omev·Gcncral contends that the pnrpos!' for which tJu(buildin~ is now utilised, namely, for the Tri1·cni Kal;L Sangam, is a piiblic purpose, being the purpose of the Union, within the meani11g of s. :l of the Act, and, therefore, the respondents arc not entitled for cle·rerp1isition unclcr the pro,·iso to s. tl of the Ad.

¶117

It is argued that every Union purpose is a public purrose. The argument prorecds that under the Constitution tho Parliament may make la\1·s with respect to any of the matter; enumerated in List I of the Seventh Scbcclulc to the Constitution, ancl also in rl'SJlCCt of any mattPrs c>numernted 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 mattcrn, whether in rPgard !'hereof laws were made or not woulcl boa requisition for a public purpose, being~ purpo"c of the l)nion, within the meaning of s. :l( 1) of the 1!)52 Act. In support of this contention rnliance is placed upon the decision of this Court in The Sfote of Rom/my v. Al·i Ui!lslum ('). There i8 a fallat;y underlying this argument. The (ll [1955] 2 S. C.R. 867.

¶118

·-

¶119

!: S.C.R. SUPREME COURT REPORTS · 327

¶120

1961

¶121

-'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 ~f 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 han 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 thi Court.

¶122

Tht Union of lnd·ia v. Ram Kanwar Subba Raf J.

¶123

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

¶124

Appeal d£.sniissed.

The Union of India v. Ram Kanwar and Others

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The Union of India v. Ram Kanwar and Others

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