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1954 DIGILAW 11 (PAT)

Awadh Bihari Thakur v. State Of Bihar

1954-01-21

CHOUDHARY, V.RAMASWAMI

body1954
Judgment 1. In this case the petitioner Awadh Bihari Thakur has obtained a rule calling upon the opposite parties to show cause why a writ under Article 226 of the Constitution of India should not be issued to quash a notice served upon the petitioner under Sec. 4, Bihar Premises Requisitioning (Temporary Provisions) Act, 1949. 2. The notice which is challenged is annexure A to the application. The notice is in the following terms : "Whereas the premises described in Schedule I below have been requisitioned under the provision of Sec.3 of the Bihar Premises Requisitioning (Temporary Provisions) Act, 1949 (Bihar Act XV of 1950); Now therefore in exercise of the powers conferred by sec. 4 of the aforesaid Act, I hereby direct Shri Awadh Bihari Thakur, Typist of the High Court, tenant/occupier of the premises to vacate the said premises on or before 1-8-53 when possession thereof will be taken on behalf of the State Government. SCHEDULE I (Particulars of the Premises) House opposite Kotwali P.S. bearing holding No. 89, Circle No. 6 belonging to Shree Akleshwari Sahay of Bhagalpur. 342M 27. Sd/-Illegible, Collector of Patna." 3. The case of petitioner is that he is a tenant of Mr. Akleshwari Sahay in a portion of holding No. 89, Circle No. 6 of the Patna Municipal Corporation. The argument put forward on behalf of the petitioner is that under Sec.3 of the statute, requisition of premises cannot be lawfully made unless there was a notice given to the landlord and where the premises are in occupation of a tenant, also to such tenant, to show cause against the proposed order. The argument put forward on behalf of the petitioner is that under Sec.3 of the statute, requisition of premises cannot be lawfully made unless there was a notice given to the landlord and where the premises are in occupation of a tenant, also to such tenant, to show cause against the proposed order. The argument is based upon Sec.3(1), Bihar Premises Requisitioning (Temporary Provisions) Act, 1949, which is to the following effect : "Whenever it appears to the Provincial Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may, by order in writing, requisition such premises: Provided that no order requisitioning such premises shall be passed unless a reasonable opportunity has been given to the landlord and, where it relates to premises in occupation of a tenant, also to such tenant to show cause against the proposed order within such time, to such authority and in such manner as may be prescribed: Provided further that no premises exclusively used for religious, charitable or educational purposes shall be requisitioned under this section." Sec.3(2) is also important. Sec.3(2) states: "An order under Sub-section (1) shall be served on the landlord and where it relates to premises in occupation of a tenant, also on such tenant in such manner as may be prescribed," Section 4 deals with the power of the Collector to order vacation of premises after an order of requisition is validly made under Sec.3. Sec. 4 states : "(1) Where any premises are requisitioned under this Act, the Collector may by notice in writing (a) order the existing tenant or occupier, if any, to vacate the premises within twenty-five days of the receipt of the notice....." 4. There is no counter-affidavit in the present case on behalf of the respondents controverting the allegation made in the petition that he is a tenant of Holding No. 89 and that he has not received notice under Sec.3(1) asking to show cause why the premises should not be requisitioned. In our opinion the provision of Sec.3(1) is a mandatory provision and the Provincial Government has no jurisdiction to make an order of requisition unless the preliminary condition embodied in the provision is satisfied. In our opinion the provision of Sec.3(1) is a mandatory provision and the Provincial Government has no jurisdiction to make an order of requisition unless the preliminary condition embodied in the provision is satisfied. The preliminary condition which is essential for the jurisdiction of the Government to requisition is that reasonable opportunity should be given to the landlord and also to the tenant, if the premises is in occupation of the tenant, to show cause against the proposed order within such time as the authority may think fit. It is admitted by Mr. Rai Parasnath who appears for the opposite parties in the present case, that no notice of the intended requisition was given to the petitioner who was a tenant in occupation of the premises. In the absence of a notice to the petitioner it must be held that Provincial Government has no jurisdiction to make an order of requisition under Sec.3 of the Act. 5. It was stated by Mr. Rai Parasnath that there was an order of requisition in this case; but even so, it cannot be a lawful order ox requisition under Section 3 so far as the petitioner is concerned and unless there is such a lawful order there is no jurisdiction on the part of the Collector to order the petitioner to vacate the premises under Sec. 4 of the Act. Taking this view of the matter, we hold that the notice issued to the petitioner to vacate under Sec. 4 was not a legally valid notice and the Collector had no jurisdiction to issue this notice. For these reasons, we think that a writ in the nature of certiorari should be issued quashing the notice of the Collector of Patna dated 2-7-1953 under Sec. 4 of the Bihar Premises Requisitioning (Temporary Provisions) Act, 1949, directing the petitioner to vacate the premises. 6. This application is accordingly allowed with costs; hearing fee Rs. 50.