Jagdish Prasad v. District Magistrate — 1990 DIGILAW 508 (ALL)

JUDGMENT : A.N.Varma, J. 1. The petitioner has assailed the validity of the orders passed by the District Magistrate, Muzaffarnagar, in the purported exercise of powers under Section 3 (2) of the U. P. Accommodation Requisition Act, 1947 in respect of premises no. 196, Bagh Kesho Das, Muzaffarnagar. 2. The essential facts are that the petitioner Kunwar Jagdish Prasad (who died during the pendency of the petition and is now represented by his heirs and legal representatives) was the owner of the disputed premises. It is asserted in paragraph 5 of the petition that he suffered losses in various businesses he was carrying on at the relevant time. Consequently he was in the look out of a suitable tenant for the aforesaid premises obviously for augmenting his income. Just at that time he came across an advertisement in a local newspaper, dated April 1, 1977 issued by the Sales Tax Officer, Muzaffarnagar, inviting offers from landlords wilting to rent out accommodation consisting of 12 or more rooms for housing the Sales Tax Office. In the advertisement, it was stated that the Department was prepared to pay rent at 50 P. per sq. ft. In response to this advertisement the petitioner seat an application to the Sales Tax Officer expressing his willingness to let out the premises mentioned above. In his letter addressed to the Sales Tax Officer he set out his terms. The petitioner also met the Sales Tax Officer on April 2, 1977 and it is asserted that the latter was prepared to pay rent at the rate of 75 P. per sq. ft Of carpet area provided the petitioner bore ail the taxes. On the advice of the Sales Tax Officer the petitioner sent another application on April 5, 1977 stating that be would let out the premises on a rental of 75 P per sq ft. While the aforesaid negotiations were going on, the petitioner was served with a notice dated April 15, 1977 asking the petitioner to show cause why the disputed premises be not requisitioned under Section 3 (1) (a) of the aforesaid Act for the office of the Sales Tax Department. The petitioner filed his objection against this. Thereafter by his order dated May 26-1977, the District Magistrate passed a reasoned order rejecting the objections of the petitioner. The petitioner filed his objection against this. Thereafter by his order dated May 26-1977, the District Magistrate passed a reasoned order rejecting the objections of the petitioner. This order was followed by another order dated May 27, 1977 by the District Magistrate issued under Section 3 (2) stating that the disputed premises were requisitioned for accommodating the office of the Sales Tax Officer. The petitioner should, therefore, deliver possession of the house in question by May 29, 1977 to the District Magistrate through the Sales Tax Officer. The petition is directed against these two orders. 3. DR. Gyan Prakash, learned counsel for the petitioner, challenged the impunged orders on two grounds : (i) that the District Magistrate had no power to requisition the accommodation in view of the first proviso to sub-section (2) of Section 3 which states that no accommodation shall be requisitioned which is bonafide used by the owner thereof as the residence of himself or his family ; (ii) that recourse to sub-section (2) of Section 3 by the District Magistrate was wholly mala fide having been resorted to only to pressurize the petitioner to let out the building in question for the office of the Sales Tax Officer at the rate of rent dictated by the latter. 4. Having heard learned counsel for the parties and given the matter our careful consideration, we find no merit in either of these two contentions. We begin with the first contention. The submission was that the accommodation in question was being used by the petitioner as his residence at the time of the initiation of the requisition proceedings. The District Magistrate could not, therefore, requisition the same in view of the first proviso to sub-section (2) of Section 3. We begin with the first contention. The submission was that the accommodation in question was being used by the petitioner as his residence at the time of the initiation of the requisition proceedings. The District Magistrate could not, therefore, requisition the same in view of the first proviso to sub-section (2) of Section 3. Sub-section (2) of Section 3, in so far as relevant for our purpose, states : "(2) If, after considering the cause, if any, shown by the owner or occupier of the accommodation the District Magistrate is satisfied that it is necessary or expedient so to do, he may, by order in writing requisition the accommodation and may make such further orders as appear to him to be necessary or expedient in connection with the requisitioning : Provided that no accommodation or part there of- (a) which is bona fide used by the owner thereof as the residence of himself or his family, or (b) which is exclusively used, either for religious worship by the public or as a school, hospital, public library or an orphanage or for the purpose of accommodating persons connected with the management of such place or worship or such school, hospital, library or orphanage, shall be requisitioned". 5. This provision has no application to the present case. In order tri attract the first proviso to sub-section (2) of Section 3 it must be established that the accommodation was bonafide used by the owner thereof as the residence of himself or his family at the relevant time i. e. immediately preceding 'the service of notice under sub-section (1) of Section 3 of the Act. What we find in the present case is that not only did the petitioner furnish no material before the District Magistrate that the accommodation was being used by him for his residence or for the residence of his family, he did not even take this plea in his objections filed against the notice. We do not agree with the learned counsel for the petitioner that the plea that the accommodation was being used by the petitioner for the residence of himself or his family was raised in the objections filed by him against the notice. We do not agree with the learned counsel for the petitioner that the plea that the accommodation was being used by the petitioner for the residence of himself or his family was raised in the objections filed by him against the notice. Paragraph 2 of the objections on which reliance was placed by the learned counsel for the petitioner simply states "the kothi in question had never been let out before at any point of time and bad been under my own use and occupation all through". 6. We cannot read into this objection the plea that the accommodation was being used as the petitioner's residence. It must be remembered that it is not every kind of use of the accommodation which attracts the application of the first proviso to Section 3 (2). There is a variety of uses which an accommodation may be put to. For instance, the accommodation may be used for office purposes or as a guest house or for Tuning a business and so forth. In each case the accommodation could be deemed to be in use and occupation of the owner. Yet none of these circumstances would attract the application of Section 3 (2). It is hence not enough to say that the building is in the own use and occupation of the owner thereof. The owner must further be able to assert and prove that the accommodation is being used as his residence. Not only was no such plea raised in the objection but there was also a complete absence of any material adduced by the landlord which may have substantiated the allegation now being made in the petition that the accommodation was being used as his residence. On the contrary, there is a clear and categorical recital in the impugned order dated May 27, 1977 passed by the District Magistrate stating that the premises are "already vacant". In this state of the pleadings and proof, there is not the slightest doubt that the first proviso to Section 3 (2) was not attracted to the present case. 7. In this connection, learned counsel for the petitioner also submitted that the District Magistrate while deciding the objections of the petitioner and issuing the order under Section 3 (2) should have recorded a categorical finding that the accommodation was not used by the owner thereof as the residence of himself or his family. 7. In this connection, learned counsel for the petitioner also submitted that the District Magistrate while deciding the objections of the petitioner and issuing the order under Section 3 (2) should have recorded a categorical finding that the accommodation was not used by the owner thereof as the residence of himself or his family. Such a finding, it was urged, was mandatory in every case where the District Magistrate decides to requisition an accommodation. 8. We are unable to agree. Section 3 specifically vests in the District Magistrate the power to requisition any accommodation if the same is needed or likely to be needed for any public purpose. The first proviso to sub-section (2) of Section 3 carves out an exception in respect of the accommodation! which is bona fide used by the owner thereof for his residence. The burden is, therefore, on the person who takes the stand that the accommodation could not be requisitioned by the District Magistrate because it was used as the residence of the owner or his family. It is only where the owner specifically pleads that the accommodation is covered by the first proviso that the District Magistrate becomes obliged to record a finding on the issue. Not otherwise. That takes us to the second contention. It is true that the order of requisition was passed by the District Magistrate while negotiations were going on for leasing the accommodation with the Sales Tax Department. But from this fact alone we cannot jump to the conclusion that the entire exercise resulting in the requisition was an instance of colourable exercise of power. That the accommodation was needed for the office of the Sales Tax Officer is amply established on the record. If any proof were needed the same is furnished by the advertisement issued by the Sales Tax Officer inviting offers from the landlords for a suitable accommodation. It cannot be seriously disputed that housing the Sales Tax Department would constitute a public purpose. These facts affirmatively demonstrate beyond doubt that the conclusion of the District Magistrate that the disputed accommodation was needed for a public purpose was not a mere pretence. It cannot be seriously disputed that housing the Sales Tax Department would constitute a public purpose. These facts affirmatively demonstrate beyond doubt that the conclusion of the District Magistrate that the disputed accommodation was needed for a public purpose was not a mere pretence. That the exercise of power by the District Magistrate under Section 3 was not mala fide or actuated by any collateral motives is further corroborated by the fact that the landlord himself was at the relevant time ever too willing to let out the accommodation for a handsome rent. In this state of things, it is impossible to hold that the impugned action was a colourable exercise of power. 9. This brings us to the last point canvassed by the learned counsel in support of the petition. It was urged that the order of requisition was passed nearly 13 years ago and there is no indication that the respondents will release the accommodation from requisition in any foreseeable future. It is thus apparent, it was argued, that the requisition is for a purpose which is of permanent nature. Consequently, it must be held that the impugned action is, in truth and substance, one amounting to acquisition of the property in the garb of requisition. In support learned counsel placed strong reliance on a decision of the Supreme Court in the case of Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta, reported in AIR 1984 SC 1707 . We have carefully examined this contention. In the decision cited by the learned counsel itself it has been observed in paragraph 24 of the judgment that the mere fact that the property has remained under requisition over a number of years does not by itself and without more justify the conclusion that the exercise of power of requisition was bad in its inception or that its continuance is rendered malafide. It was further ruled that in order to draw such an inference some more material ought to be placed before the Court than the mere circumstance of lapse of time. 10. We would not, therefore, be justified in quashing the impugned action or the continuance of the order of requisition merely on the ground that nearly 13 years have elapsed since the action was initiated. At the same time, the present state of things ought not to continue indefinitely. 10. We would not, therefore, be justified in quashing the impugned action or the continuance of the order of requisition merely on the ground that nearly 13 years have elapsed since the action was initiated. At the same time, the present state of things ought not to continue indefinitely. WE think that if it is decided to retain the accommodation as the permanent office of the Sales Tax Officer, the State Government should take the steps which have been laid down in the decision of the Supreme Court in the case of Jiwani Kumar Paraki (Supra). It is on these lines that the Supreme Court had disposed of the matter before it. In the result, we uphold the order of requisition and dismiss the petition but subject to the direction that the District Magistrate may take the decision within six months whether it would retain the accommodation as the permanent office of the Sales Tax Officer. If the District Magistrate does take such a decision, the State Government shall follow the same procedure towards the acquisition of the accommodation as has been laid down in the operative part of the judgment in the case of Jiwani Kumar Paraki (supra). The District Magistrate shall communicate his decision to the petitioner within one month thereof. No order as to costs. Petition dismissed.