LawDistill
Supreme Court of India

HARISH CHANDRA NIGAM vs STATE OF U.F on 21 January, 1980

Cites 1 provisionsCites 0 judgmentsCited by 0
Official PDFBench Nand Lall Untwalia, Ontethupalli Chinnappa Reddy
PETITIONER:
HARISH CHANDRA NIGAM
Vs.
RESPONDENT:
STATE OF U.F.
DATE OF JUDGMENT21/01/1980
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 647 1980 SCR (2) 809
1980 SCC (1) 662
ACT:
Defence of India Act, 1962, sections 29 and 35(1) scope
of-Requisition orders issued to the person actually in
possession, but while issuing requisition orders, possession
ordered to be given to the State and not to the individuals
from whom taken-Propriety of the order.
HEADNOTE:
The appellants in both the appeals were allotted a plot
each "provisionally subject to the final approval of
Government" and possession thereof was also given in 1956.
Six years later by letter dated 31-10-62 they were informed
that "the State Government has not approved the allotment in
your favour and the provisional allotment made in your
favour stands cancelled". Steps were to be taken for the
eviction as per the said letter of cancellation, but before
any action was taken, the District Magistrate requisitioned
the said plots for defence purposes under section 29 of the
Defence of India Act, 1922. The letters of requisition were
addressed to the appellants and possession taken. No steps

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 559-560 of 1970.

Appeals by Special Leave from the Judgment and order dated 24-1-1969 of the Allahabad High Court in Special Appeal No. 511 of 1968 connected with Special Appeal No. 512 of 1968.

R. K. Garg and V. J. Francis for the Appellant.

Madan Bhatia for the Respondent.

The Judgment of the Court was delivered by

These two appeals by special leave have been heard together as common questions of law and fact are involved in them. We shall state the facts of Civil Appeal No. 559 of 1970 in which the appellant is Shri Harish Chandra Nigam. The facts of the other appeal viz. Civil Appeal No. 560 of 1970 in which the appellant is Shri Amar Singh are almost identical except one which shall be stated hereinafter. The plot concerned in Nigam’s appeal is plot no. 60 and in the other appeal it is plot no. 6. Nigam made an application to the Director of Industries, Uttar Pradesh for allotment of the plot to him for industrial purposes. By an order dated November 22, 1956 the application was "provisionally accepted subject to the final approval of Government." Finally he was informed by the Manager of Industrial Estate, Kalpi Road, Kanpur in his letter dated 31-10-1962 "that the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled." But it appears after the provisional allotment Nigam was put in possession of the land. Steps were to be taken for his eviction after giving information as to the cancellation of the allotment in the letter aforesaid dated 31-10-1962. But before these steps were taken and possession was recovered from him the District Magistrate, Kanpur requisitioned the plot under section 29 of the Defence of India Act, 1962; hereinafter called the Act. This order is dated 7-12-1963. The order reads as follows:-

"Whereas in my opinion it is necessary and

expedient to requisition unit no. 60 in the Govt.

Industrial Estate, Kanpur specified below, of which you

are the person in possession for efficient conduct of

Military operations.

And whereas the powers of requisitioning under

Section 29 of the Defence of India Act, 1962 (Central

Act. No. 51 of 1962) have been conferred on me by the

Government of Uttar Pradesh under Notification No.

5589/18-I-LA/63, dated January 14, 1963 issued by

Revenue (B) Department-/18 Bhardwaj, District

Magistrate, Kanpur hereby requisition the aforesaid

Unit and order that possession thereof be delivered by

11-12-63 to the General Manager, ordnance Factory,

Kalpi Road, Kanpur, after removing therefrom any

furniture or other articles.

I further order that the Tahsildar, Kanpur shall

arrange for the delivery of possession of the aforesaid

unit to the General Manager, ordnance Factory, Kalpi

Road, Kanpur at the expiry of the period indicated

above, if the possession is not delivered in compliance

of the above order."

Pursuant to the above order possession was taken from appellant Nigam on January 2, 1964 and was handed over to the General Manager, Ordnance Factory, Kanpur. No steps were taken by the Industries department for taking formal or symbolical possession of the plot in question after it was requisitioned by the District Magistrate. Then came the derequisitioned order passed by the District Magistrate under s. 35 of the Act on 20-1-1967. In passing it may be mentioned here that the appellant had kept his stores in two of the rooms standing in the land. But this fact is not very material for the purpose of deciding the matter in issue before us.

The de-requisition order reads as follows:-

"Regarding requisition of Unit No. 6 and 60

Industrial Estate for starting Astisan Training School

by the Ordnance Factory, Kalpi Road, Kanpur.

ORDER

Whereas the property specified in the schedule

hereto appended was requisitioned by the order of the

District Magistrate, Kanpur dated 7-12-1963 until

further order.

And whereas it has now been decided that the said

property shall be released from requisition with

immediate effect.

Now, therefore, in exercise of the powers conferred by

sub-section (1) of Section 35 of the Defence of India

Act, 1962 (Act No. 51 of 1962), I, S. S. Sidhu,

District Magistrate, Kanpur being the competent

authority do here by declare that the said property is

released from requisition, and hereby specify the

Director of Industries, Kanpur as the person to whom

the possession of the said property shall be given.

Thereupon the petitioner filed a writ petition in the Allahabad High Court to issue a writ in the nature of mandamus against the respondent directing to deliver possession of the property in dispute to the appellant and not to deliver possession to any other person. It appears, however, that possession of the property had been given to the Industries department. The petitioner unsuccessfully prosecuted his writ petition before the learned single Judge of the High Court. He failed in appeal also. Hence the present appeal.

One extra fact which need be mentioned in regard to the case of Amar Singh is that after de-requisition and after possession of the plot was taken by the Industries department of the Government of Uttar Pradesh the plot was allotted to Mrs. B. K. Anand, respondent no. 5 in Civil Appeal No. 560 of 1970. The other facts of his case are identical.

Learned Counsel for the appellants submitted before us that irrespective of the disputed question of fact whether there was final allotment in favour of the appellant or not, since requisition order had been served on him and possession had been taken from him, the property and its possession on de-requisition ought to have been released to him. It could not be made in favour of the Industries department. Learned counsel for the State, on the other hand, submitted that since the appellant had not semblance of right, title or interest left in the plot after cancellation of the provisional allotment in his favour he had no locus standi to ask for a writ of mandamus for delivery of possession of the plot to him. Direction was given for releasing the plot in favour of the Industries department and if the appellant is so advised he may recover possession of the plot on establishment of his right, title or interest in the plot in a competent court in accordance with sub-s.(2) of section 35 of the Act. It was further submitted in case of Amar Singh that the plot had been allotted to Mrs. B. K. Anand and she cannot be dispossessed now.

We shall read the two provisions first and enunciate the law engrafted in them and then proceed to pass the final orders in the two appeals as their respective facts and circumstances may warrant.

Sections 29 and 35 read as follows:-

"29. (1) Notwithstanding anything contained in any

other law for the time being in force, if in the

opinion of the Central Government or the State

Government it is necessary or expedient so to do for

securing the defence of India, civil defence, public

safety, maintenance of public order or efficient

conduct of military operations, or for maintaining

supplies and services essential to the life of the

community, that Government may by order in writing

requisition any immovable property and may make such

further orders as appear to that Government to be

necessary or expedient in connection with the

requisitioning:

Provided that no property or part thereof which is

exclusively used by the public for religious worship

shall be requisitioned.

(2) The requisition shall be effected by an order

in writing addressed to the person deemed by the

Central Government or the State Government, as the case

may be, to be the owner or person in possession of the

property, and such order shall be served in the

prescribed manner on the person to whom it is

addressed.

(3) Whenever any property is requisitioned under

sub-section (1), the period of such requisition shall

not extend beyond the period for which such property is

required for any of the purposes mentioned in that sub-

section.

35. (1) Where any property requisitioned under

section 29 is to be released from such requisition, the

Government by which or under whose authority the

property was requisitioned or any person generally or

specially authorised by it in this behalf may, after

such inquiry, if any, as it or he 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 who

appears to the Government or, as the case may be, the

person authorised as aforesaid, to be entitled to the

possession of the property at the time such order is

made.

(2) The delivery of possession of the property to

the person specified in the order under sub-section (1)

shall be a full discharge of the Government from all

liabilities in respect of the property, but shall not

prejudice by 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 delivered."

The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub-s. (2) of s. 29. He may not be the owner of the property. But on requisition possession was taken from him. The inquiry envisaged under sub-s. (1) of s. 35 is necessitated only if facts and events taking place after requisition necessitate it. Otherwise not. As for example, suppose, possession of a property is taken from X and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property. A summary and prima facie inquiry may be made under sub-s. (1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government. Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub-s. (2). Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken. If it were not so then it would be enlarging the scope of the inquiry envisaged under sub-s. (1) of s. 35 of the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property. This is not the scope of the inquiry. It is, therefore, clear to us that technically speaking on a correct interpretation of the law the property on de-requisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition. But on the special facts of these two appeals we do not feel persuaded to make our unqualified or unconditional order in these appeals filed on grant of special leave under Art. 136 of the Constitution as justice requires only a qualified and conditional order. It is plain on the facts placed before us that there was no final allotment of the plots in favour of the appellants. The allotment was only provisional subject to the approval of the Government. Possession had been given to them and before requisition the Industries department had not recovered back possession of either of the two plots. In such a situation we make the following orders in the two appeals separately.

Civil Appeal No. 559 of 1970.

The possession of plot no. 60 is directed to be delivered to appellant Nigam within a period of six months from today. If during the said period of six months the Government takes adequate and legal steps for taking back formal possession of the plot from him, then possession need not be delivered back to Nigam. But on their failure to do so our direction will hold good and possession of plot no. 60 will have to be given to Nigam subject to its recovery back by the Government even later. It will be open to the aggrieved party, if necessary, to initiate a proceeding in accordance with sub-s. (2) of s. 35. We allow this appeal in part to the extent and in the manner indicated above.

Civil Appeal No. 560 of 1970.

Since in this case allotment of the plot was made in favour of Mrs. B. K. Anand, we do not consider it just and expedient to direct the Government to take steps for completing the formality of taking possession and to dispossess Mrs. Anand. On the special facts of this case we dismiss this appeal in toto.

There will be no order as to costs in either of the appeals. V.D.K. C.A. 559/70 allowed.

C.A. 560/70 dismissed.