D. N. Shastri v. Distt. Magistrate — 1970 DIGILAW 477 (ALL)

JUDGMENT Dwivedi, J. - The appellant is the owner of the bungalow No. 301, Urmila Shastri Road, Meerut Cantonment. On December 12, 1950 the District Magistrate, Meerut requisitioned a portion of the accommodation under Section 3, U.P. (Temporary) Accommodation Requisition Act, 147 (hereinafter called the Act). The accommodation was professedly wanted for a public purpose, namely, "for the residence of the Munsif". At the timed of requestion the appellant was, it appears, residing out of Meerut. He is now in Meerut. He has occupied the rest of the bungalow. He says that now he needs the requisitioned part of the bungalow. On July 5, 1966 he applied to the Administrative Commandant of the cantonment for release of the requestioned portion. The Commandant made an order releasing the portion. Thereafter he filed the present potion. It was dismissed by a learned Single in limine. He took the view that as the appellant had not approached the District Magistrate under Section 8 of the Act for release of the requisitioned portion he would not exercise discretion for interference. 2. As counsel for the appellant has raised before us two constitutional point it is not possible for us to relegate the appellant to his remedy under Section 8. It is necessary to decide those points in this potion. They cannot be determined by the District Magistrate. 3. Section 1(3) of the Act provides that it shall apply to such areas as the State Government may notify in the Gazette from time to time. By a notification dated December 16, 1947 the State Government has applied the Act to the Distt. of Meerut. So the entire city of Meerut including the cantonment part of it is governed by the Act. 4. The first argument of counsel for the appellant is that the Act could not be extended to the cantonment portion of the city of Meerut as the U.P. Legislative Assembly has no power to make a law with respect to the requestioning of buildings. 5. By the notification dated October 21, 1946 issued under Section 104, Government of India Act, 1935, the Governor General of India vested in the Provincial Legislature the power to make a law with respect to the requestioning of land. 5. By the notification dated October 21, 1946 issued under Section 104, Government of India Act, 1935, the Governor General of India vested in the Provincial Legislature the power to make a law with respect to the requestioning of land. By relying on items 2 and 10 of List l and Items 8, 9 and 42 of List II of the Seventh Schedule to the Government of India Act, 1935, counsel makes the submission that "land" in the aforesaid notification of the Governor General does not include houses. Item 2 of List I provides, inter alia, for "the regulation of house accommodation" in cantonment areas. Item 10 of List I deals with "works, land and buildings vested in, or in the possession of, His Majesty for the purposes of the Dominion". Item 8 of list II deals with "works, lands and buildings vested in, or in the possession of, His Majesty for the purposes of the Province. Item 9 of List II deals with 'Compulsory acquisition of Land'. Item 42 of List II deals with 'taxes on lands and buildings, hearths and windows.' 6. The argument is not tenable. Section 299(1) of the Government of India Act provides that no person shall be deprived of his property save by authority of law. Sub-section (2) thereof provides that the Legislature shall have not power to make any law authorising the compulsory acquisition for public purposes of any 'land' unless the law provides for the payment of compensation for the property acquired. Sec-section (5) thereof provides that in Section 299 land' includes immovable property of every kind and any rights in or over such property. Sub-section (5) of Section 299 shows that the word 'Land' in Item 9 of List II will include buildings as well. The Government of India Act is a law made by the British Parliament. Accordingly the Interpretation Act, 1889 made by the British Parliament should be taken as an aid in the Interpretation of the Government of India Act. Section 3 of the Interpretation Act provides that in every Act passed after 1850 the expression 'land' shall be construed to include 'tenement and houses, and buildings of any tenure'. The word 'land' in the notification issued under Section 104 of Government of India Act by the Governor General should therefore be construed as including houses and buildings. 7. Section 3 of the Interpretation Act provides that in every Act passed after 1850 the expression 'land' shall be construed to include 'tenement and houses, and buildings of any tenure'. The word 'land' in the notification issued under Section 104 of Government of India Act by the Governor General should therefore be construed as including houses and buildings. 7. The word 'Land' is not mentioned in Item 2 of List I because the British Parliament parliament perhaps though that the power to legislate with respect to land in cantonment areas should not be given to the Central Legislature. Land is pre-eminently a matter of provincial interest. Item 10 of List I is co-related with Item 8 of List II. The Central Legislature is empowered by Item 8 of List to make a law with respect to lands and buildings vested in, or the possession of His Majesty for the purposes of the Dominion; similarly the Provincial Legislature is empowered to make a law with respect to lands and buildings vested in or in the possession of, His Majesty for the purposes of the province. There appears to be a good explanation for separately mentioning the word 'buildings'. In Item 10 of List I and Item 8 of List II. It was possible that in one case land might have been vested in or in the possession of, His Majesty for the purpose of a Province while a buildings standing on the said land might have been vested in, or in the possession of His Majesty for the purposes of the Dominion : in another case land might have been vested in, or in the Possession of, His Majesty for the purposes of the Dominion and the buildings standing thereon might have been vested in, or, in the possession of his Majesty for the purposes of the Province. If 'land' alone had been included in items 10 and 8, there might have been difficulty in the aforesaid two cases for the respective Legislature to legislate with respect to buildings standing on a piece of land. So the British Parliament included the word 'buildings' in Items 10 and 8, 'Building' is separately mentioned in item 42 of List II for a tax on buildings is an independent impost distinct and discrete from a tax on land. 8. So the British Parliament included the word 'buildings' in Items 10 and 8, 'Building' is separately mentioned in item 42 of List II for a tax on buildings is an independent impost distinct and discrete from a tax on land. 8. The next argument is that as the Central Legislature can alone make a law with respect to 'the regulation of house accommodation' in cantonment areas, the State Government could not extend the Act to the cantonment portion of the City of Meerut. The argument assumes that the subject-matter of the Act is 'the regulation of house accommodation' in cantonment areas. 9. We shall now examine the provisions of the Act to discover what is its true subject-matter. According to the preamble of the Act as there was acute shortage of accommodation in the province due to the large influx of refugees, it was expedient to provide during a limited period for powers to requisition accommodation. Section 1 deals with territorial and temporal extent of the Act. Section 2 is definition causes. Clause (a) of Section 2 defines 'accommodation' as meaning any building or part of a building. Section 3 provides for powers for requisitioning. If the District Magistrate is of opinion that it is necessary to requestion any accommodation for any public purpose he may by a written order, requestion such accommodation and may direct that possession thereof shall be delivered by him. Section 4 provides for service of the order under Section 3 Section 5 provides for payment of compensation of the owner of the requestioned accommodation on the basis of the agreement between the District Magistrate and the owner. Section 6 provides for payment compensation to the owner when there is no such agreement. The matter is then referred to the Court. Section 7 provides for an appeal from the decision of the Court to the District Judge. Section 8 deals with release of the requestioned accommodation. Section 9 provides for a penalty for contravention of the provisions of the Act or any order made thereunder : Section 10 Provides for powers to order repairs of the requisitioned accommodation. Section 11 provides for the execution of the order under Sections 3 and 10 as if it were a decree passed by a civil Court Section 12 provides for power of entry and inspection. Section 11 provides for the execution of the order under Sections 3 and 10 as if it were a decree passed by a civil Court Section 12 provides for power of entry and inspection. Section 13 provides that the provisions of the Act shall have effect notwithstanding anything to the contrary in any law for the time being in force. Section 14 grants protection to any action taken in good faith under the Act, Section 15 provides for cognizance of offences under the Act. Section 16 provides that no order made under the Act shall be called in question in any court. Section 17 provides for the rule making power of the 'State Government Section 18 provides for the continuance of the orders made under U.P. Accommodation Requisitioning Ordinance, 1947. These are all the provisions of the Act. The Act had received assent of the Governor General. 10. It will appear from this resume of the provisions of the Act that Section 3 is the Central provision. The other provisions of the Act are ancillary or subordinate to Section 3. The Act in pith and substance, is a law with respect to the requisitioning of land. The Act requisitions possession from the owner and pays compensation therefor to him. The subject-matter of the Act is squarely covered by the notification of the Governor General issued under Section 104 of the Government of India Act. 11. Section 100(1) of the Government of India Act provides that notwithstanding anything contained in sub-sections (2) and (3) thereof the Central Legislature has and the Provincial Legislature has not, power to make laws with respect to any of the matters enumerate in List I of the Seventh schedule to the Act. sub-section (3) of Section 100 provides that subject to sub-section (1) and (2) thereof the Provincial Legislature has and the Dominion Legislature has not power to make laws for a province or any part thereof with respect to any matter enumerated in List II of the Seventh Schedule to the Act. So far as the matter enumerated in List III of the said Schedule are concerned, the Central Legislature as well as the Provincial Legislature have concurrent powers of law making. So far as the matter enumerated in List III of the said Schedule are concerned, the Central Legislature as well as the Provincial Legislature have concurrent powers of law making. Section 104 as adapted 1947, provides that the Governor General may by public notification empower either the Dominion Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists of the Seventh Schedule to the Act. As already stated, the Governor General issued a notification in 1947 under Section 104 empowering the Provincial Legislature to make a law with respect to the requisitioning of land. It necessarily follows from the language of Section 104 that the power of making of law with respect to the requisitioning of land is not included in the aid of its power under Item 2 of List I to make a law with respect to 'the regulation of house accommodation areas. 12. Item 2 of List I corresponds to Item 3 of List I of the Seventh Schedule to the Constitution. The State Legislature of West Bengal had enacted West Bengal Premises Tenancy Act. It applied to the cantonment areas and controlled the rent and letting of house accommodation in cantonment area. In Indu Bhushan Bose v. Rama Sundari Debi, 1969 Rent Control Reporter 889 : AIR 1970 SC228 the Supreme Court has held that the Act, in so far as it regulated the relationship of landlord and tenant in respect of house accommodation in cantonment areas, was ultra vires. The West Bengal Legislature because this power was expressly conferred by Item 3 of List I on the parliament. The Supreme Court held that the law could not be saved by resort to Item 18 of List II or Items 6, 7 and 13 of List III for the Parliament possessed exclusive power to Legislate with respect to 'the regulation of house accommodation' in cantonment areas. 13. This case will not help the appellant as Section 104 of the Government of India Act is independent of, and not controlled by, Section 100 (1) of the said Act. 14. 13. This case will not help the appellant as Section 104 of the Government of India Act is independent of, and not controlled by, Section 100 (1) of the said Act. 14. Dealing with the argument of counsel for the West Bengal Government that Item 2 of List I will empower the Parliament to make a law for the purpose of obtaining house accommodation in cantonment areas for military purposes, the Supreme Court said : "Another aspect that strengthens our view is that if we were to accept the interpretation sought to be put on behalf the appellant that the power of Parliament is confined to legislation for the purpose of obtaining house accommodation in cantonment areas for military purposes and excludes legislation in respect of house accommodation not immediately required for military purposes, all that parliament will be able to do will be to make; provision for acquisition or requestion of house accommodation. On the house accommodation being acquired or requisitioned, it will be available for use by military authorities. Such power, obviously could not be intended to be conferred by entry 3 in List I when the same power is specifically granted concurrently to both Parliament and the State Legislature under entry 42 of the List III of the Seventh Schedule to the Constitution." These observation are destructive of the appellant's argument. 15. It is then said that as there is no provision for release of the requisitioned accommodation in favour of the owner for his own needs the Act is arbitrary and violates Article 14 of he Constitution. This argument is misconceived. Section 8(10) of the Act provides that where any requisitioned accommodation is to be released from requestion, the District Magistrate shall release it in favour of the person from whom it was requisitioned. It is true that Section 8 does not expressly empower the District Magistrate to release the accommodation on the request of the owner. But seems to us that such power is necessarily implied. It may become necessary to release the accommodation where the District Magistrate is of opinion that it is no longer expedient to continue requisition either because in Government does not require the accommodation or because the District Magistrate wants to release the accommodation for the benefit of the owner. 16. But seems to us that such power is necessarily implied. It may become necessary to release the accommodation where the District Magistrate is of opinion that it is no longer expedient to continue requisition either because in Government does not require the accommodation or because the District Magistrate wants to release the accommodation for the benefit of the owner. 16. The Learned single Judge was right in dismissing the writ petition on the ground that the appellant has to make a request to the District Magistrate for release of the accommodation before applying under Article 226 of the Constitution. 17. It is then said that the District Magistrate may requisition the accommodation under Section 3 only for accommodating refugees or purposes connected therewith. For this purpose reliance is placed on the preamble. But the language of Section 3 is clear and unambiguous. Accordingly the preamble cannot be used to limit its meaning. See H.A. Sarkies v. District Magistrate Meerut, AIR 1966 Allahabad 458. 18. It is submitted that the requisition is continuing ever 1950. Long requisition of accommodation for about twenty years is arouse of power. We cannot accept this argument as well. There is no allegation in the writ petition or rejoinder affidavit of the appellant that ant suitable alternative accommodation is available for the residence of the Munsiff. We can take judicial notice of the fact that there is still great scarcity of accommodation in this State. Again it may be observed that the appellant has so far not applied to the District Magistrate under Section 8 for the release of the requisitioned accommodation. It is, therefore, scarcely open to him to impute mala fides or abuse of power to the District Magistrate. 19. The last argument is that of Section 3 is read in the light of the preamble, it will appear that the District Magistrate can make only a short-timed requisition. This argument appealed to the learned single Judge. In Sarkies case, Learned Judge took the view that the expression "during a limited period" in the preamble restricts the power of the District Magistrate under Section 3 to the requisitioning of an accommodation for a limited period only. On this view he held that the requestioning of an accommodation for a period of 15 years was unwarranted. With respect, we are unable to share this view. On this view he held that the requestioning of an accommodation for a period of 15 years was unwarranted. With respect, we are unable to share this view. It may at once be noticed that the learned single Judge was not referred to the Exception to sub-section (5) of Section 1 of the Act. Sub-section (5) of Section 1 presently provides that the Act shall cease to have effect after September 30, 1969. The Act was initially to expire on September 30, 1949. But it was extended from time to time until September 30, 1969. The exception reads : "Except as respects things done or omitted to be done before the expiration thereof, and Section 6 of the United Provinces General Clauses Act, 1904, shall apply upon the expiration thereof as fit it had been repealed by a United Provinces Act." On account of exception to sub-section (5) of Section 1, the requisitioning of an accommodation will have effect even after the expiry of the Act at any moment of time. The requisitioning is an act done before the expiration of the Act in the present case. It will continue to have effect even after the act has expired. So far as this particular requisitioning is concerned, it shall be deemed that the Act has been repealed and Section 6 of the General Clauses Act will apply to keep alive the requisitioning. It is thus clear that the Legislature intended that the requisitioning may continue even after the expiry of the Act. We cannot, therefore, limit the power of the District Magistrate under Section 3 by the aid of the preamble. 20. No other argument has been advanced before us. There is no force in this appeal, and accordingly it is dismissed.