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1965 DIGILAW 111 (ALL)

Madan Singh v. State of Uttar Pradesh

1965-03-10

SATISH CHANDRA

body1965
ORDER Satish Chandra, J. - This is a petition under Article 226 of the Constitution. It prays that the order dated 10-2-1960 passed by the District Magistrate, Dehra Dun, be quashed and such other writ, order or direction be issued as the circumstances may require. 2. The Petitioner came to Dehra Dun in 1947 after the partition of the country, as a refugee. Against his claims for compensation permissible to displaced persons he purchased in June 1966, the house in dispute No. 1, Raja Road, Dehra Dun, consisting of a main bungalow and an annexe ior Rs. 75,000/. The building had been requisitioned by the District Magistrate, Dehradun under the U.P. (Temporary) Accommodation Requisition Act, 1947. The main bungalow was then being used as the residence of the Munsif and the annexe as his court room. 3. The Petitioner needed the house for his personal use. He made representations to the District. Magistrate as also to the District judge, Dehra Dun. He also represented to the High Court. By a letter dated 15-5-1958 the Deputy Registrar of the High Court informed the Petitioner that the building cannot be released at present as no other suitable building was available and that as soon as an accommodation is available the building would be released. 4. Soon after the Petitioner came to know that the then Munsif, Sri. J.P. Agarwala was under orders of transfer and would soon vacate the accommodation, that a new building was being constructed in the Collecto-rate for the purpose of the Munsif's court room and that the Munsif's court room is likely to shift to the new building, he made an application on 2.7.1959 to the District Magistrate, Dehra Dun, praying that under the circumstances the building be requisitioned and possession be delivered to him. Sri. J.P. Agarwala did vacate the premises on being transferred and he was succeeded by Sri. Rajendra Narain Sinha. On 11.7.1959 the Petitioner received an order of allotment dated 1.7.59 purported to have been passed u/s 7(2) U.P. Control of Rent and Eviction Act allotting 1, Raja Road, Dehra Dun, in favour of Sri. Rajendra Narain Sinha. This order directed the Petitioner to let out the building to Sri. Rajendra Narain Sinha on rent. Rajendra Narain Sinha. On 11.7.1959 the Petitioner received an order of allotment dated 1.7.59 purported to have been passed u/s 7(2) U.P. Control of Rent and Eviction Act allotting 1, Raja Road, Dehra Dun, in favour of Sri. Rajendra Narain Sinha. This order directed the Petitioner to let out the building to Sri. Rajendra Narain Sinha on rent. The Petitioner on 8.9.1959 made a representation to the Rent Control and Eviction Officer, Dehra Dun, praying that he may be pleased to cancel the allotment order and the building in dispute be released for the personal use of the Petitioner. The Rent Control and Eviction Officer replied that there was no suitable building at his disposal which could be allotted to Sri. Rajendra Narain Sinha, and that a suitable building will be allotted to him as soon as one is available. The Petitioner received this letter on 10-10-1959. It is noticeable that the allotment order passed in July 1959 related to the portion which was in occupation of the erstwhile Munsif i.e. the main bungalow. On the same day i.e. 10th Oct., 1959 the Petitioner received another letter from the Rent Control and Eviction Officer, Dehra Dun. This enclosed a copy of the allotment order dated 20th September, 1959 directing the Petitioner to let out to:'Sri Probation Officer, Dehra Dun'' building No. 1, Raja Road which has been vacated "by Sri. Munsif court." 5. The position thus was that the main bungalow was allotted to the successor Munsif, Sri. Rajendra Narain Sinha, by the Rent Control and Eviction Officer u/s 7(2) of the Rent Control and Eviction Act; and in exercise of the same power the annexe was allotted to the Probation Officer, Dehra Dun. Though the allotment order dated 20-9-1959 passed in favour of the Probation Officer showed that the annexe had fallen vacant, but it appears that it was really vacated on or about 10th of Dec. 1959, when the munsif's court room shifted to the new building that had been constructed for it; and it also appears that the Probation Officer took possession of the annexe on this date. 6. In the meantime in July 1959 the Petitioner again approached the High Court. 1959, when the munsif's court room shifted to the new building that had been constructed for it; and it also appears that the Probation Officer took possession of the annexe on this date. 6. In the meantime in July 1959 the Petitioner again approached the High Court. By the letter dated 13th of October, 1959 the Deputy Registrar, High Court, informnd the Petitioner that the portion of the building being used as court of the Munsif, Dehra Dun, will be vacated soon after the completion of the new Court Block, and that the residential portion will be vacated as soon as any suitable accommodation is allotted to the Munsif for which the District Magistrate had already been requested. A copy of this letter was endorsed to the District Judge, Dehra Dun with a request that a reminder be sent to the District Magistrate for the allotment of an accommodation for the Munsif, Dehra Dun. 7. The Petitioner challenged the allotment orders and filed an objection to the Rent Control and Eviction Officer on the ground that they were without jurisdiction. The Petitioner appeared before the Rent Control and Eviction Officer and filed an affidavit stating his personal need and hardship, but to no effect. In January 1960 the Petitioner came to this Court under Article 226 of the Constitution praying that the allotment order dated 20th of September, 1959 allotting the annexe to the Probation Officer be quashed. 8. On 10-2-1960 the District Magistrate, Dehra Dun, passed the following order: Whereas a portion of the requisitioned building No. 1, Raja Road, Dehra Dun, has been vacated due to the shifting of the Munsif, Dehra Dun court room to the near Civil Court building, I hereby nominate the Probation Officer, Dehra Dun, to occupy the aforesaid building for Probation Office, Dehradun. The norninee shall pay compensation to the owner direct from the date the building has been vacated by the previous nominee. The Petitioner thereafter applied for the amendments of the original petition so as to enable this Court to deal with this order as well. The amendments were, in due course, allowed. 9. The position, therefore, is that the main bungalow was in possession of Sri. Rajendra Narain Sinha, under an allotment order passed under the Rent Control and Eviction Act whereas the annexe has been in occupation of the Probation Officer as a nominee of the District Magistrate. The amendments were, in due course, allowed. 9. The position, therefore, is that the main bungalow was in possession of Sri. Rajendra Narain Sinha, under an allotment order passed under the Rent Control and Eviction Act whereas the annexe has been in occupation of the Probation Officer as a nominee of the District Magistrate. The counter-affidavits state that the allotment order dated 20th of September, 1959 has been withdrawn. The building had originally been requisitioned under the U.P. (Temporary) Accommodation Requisition Act, 1947. The order of requisition dated 31.3.1948 runs as follows: In the exercise of the powers conferred upon me by Clause 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947, I.B.D. Sanwal, I.C.S., District Magistrate, Dehra Dun, hereby requisition house No. 1, Raja Road, Dehradun, and direct that the possession thereof shall be delivered to the Sessions Judge, Dehradun, for the use of the Munsif's court-room and residence within 15 days of the receipt of this notice. 10. The allotment order dated 1-7-1959 which was served upon the Petitioner on 11-7-1959 (a copy whereof is annexure B to the petition) is in respect of the main bungalow which had been requisitioned by the State Government. It purports to have been passed u/s 7(2) of the U.P. Control of Rent and Eviction Act, 1947. In view of the third proviso to Section 1 (2A) of this Act, nothing in this Act applies to premises requisitioned by the State Government. The Rent Control and Eviction Officer had hence no jurisdiction whatsoever to make an allotment order in respect of this building. The allotment order dated 1-7-1959 would, therefore, be void, but in this petition there is no prayer with respect to the main bungalow. No further order need be passed with respect to it. 11. The validity of the order of nomination dated 10th February, 1960 in favour of the Probation Officer is challenged in this petition. During the course of the hearing the learned Counsel challenged the validity of the initial order of requisition as well. It was urged that the order dated 31.3.1948 was ultra vires the powers of the District Magistrate. Section 3, U.P. (Temp.) Accommodation Requisition Act, 19(7, does require that the District Magistrate passing the order has to form his opinion as to the necessity to requisition this building and as to the existence of any public purpose. It was urged that the order dated 31.3.1948 was ultra vires the powers of the District Magistrate. Section 3, U.P. (Temp.) Accommodation Requisition Act, 19(7, does require that the District Magistrate passing the order has to form his opinion as to the necessity to requisition this building and as to the existence of any public purpose. These are conditions precedent to the valid ex-ercise of the power. As the order does not contain a recital as to these matters, I adjourned the hearing to enable the learned Standing Counsel to file a supplementary affidavit to show that the officer passing the requisition order was satisfied on these matters. No affidavit or other material has been filed. Sri H.P. Gupta, the learned Junior Standing Counsel stated that the relevant file has been weeded out and it is, therefore, not possible to make any statement on these matters. In Jagdish Narain Bhargava v. State of U.P. (1) 1959 AWR 77 , a learned Single Judge of this Court held that where the requisition order did not show that the District Magistrate was of the opinion that it was necessary to requisition the house for public purpose the order was illegal. 12. This aspect has been considered by the Supreme Court in The Swadeshi Cotton Mills Co. Limited Vs. The State of U.P. and Others, AIR 1961 SC 1381 . In that case it was held that: Where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation) it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. In that case the authorities filed an affidavit before the Supreme Court and their Lordships held that the defect has been cured. 13. In the instant case there is no recital that the District Magistrate was satisfied as to the necessity for requisitioning this house. There is no recital either that he was satisfied that the house was needed for a public pur-pose. Hence no presumption that the conditions precedent were satisfied arises. No affidavit has been filed nor any material placed before me to show that the officer did apply his mind and formed the opinion that it was necessary to requisition this house for a public purpose. The power to pass an order u/s 3 of the Act arises only after the necessary opinion required thereunder have been formed. The order being defective on its face and there being no material to show that the conditions precedent were complied with, the requisition has to be held to be without jurisdiction, and in the eye of law, void. 14. It is urged that the requisition order was passed in 1948 prior to the commencement of the Constitution and as such it cannot be set aside under Article 226 of the Constitution. The validity of the nomination order dated 10th February, 1960 in favour of the Probation Officer is sought to be sustained on the basis of this requistion order of 1948. The requisition order is still being enforced. If an invalid order is being enforced even after the coming into force of the Constitution and by such enforcement, a citizen is deprived of his property, such an order can be looked into and adjudicated upon under Article 226. 15. It was also urged by the learned Counsel for the Petitioner that the order of nomination in favour of the Probation Officer is invalid because it involves a diversion of power. He urged that if at all the public purpose for which the building was requisitioned in 1948 was the need of the Munsif and his Court. 15. It was also urged by the learned Counsel for the Petitioner that the order of nomination in favour of the Probation Officer is invalid because it involves a diversion of power. He urged that if at all the public purpose for which the building was requisitioned in 1948 was the need of the Munsif and his Court. The need for the Munsif's court room has admittedly come to an end The public purpose for which the house was requisitioned has therefore, ceased to exist. The use of the annexe by the Probation Officer is a purpose entirely distinct from the purpose for which the building was requisitioned. A building requisitioned lor a specific public purpose cannot validly be diverted to the use of some other purpose when the public purpose for which it was requisitioned originally had admittedly ceased to exist. On this ground also the order dated 10th of February, 1960 is invalid. 16. The petition is allowed with costs. The original order dated 31-3-1948 being without jurisdiction and void cannot affect the Petitioner's rights. The order dated 10th February 1960 in favour of the Probation Officer, Dehra Dun is quashed. The Respondents 2, 3 and 4 are directed to restore the possession of the annexe to the Petitioner forthwith.