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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 were taken by the Department for taking formal or symbolical possession  of   the  plots  in  question  after  they  were requisitioned   by   the   Magistrate.   Later   on,   while derequisitioning the  said plots  under section 35(1) of the Defence of  India Act  1962, the  Magistrate "specified  the Director of  Industries, Kanpur  as the  person to  whom the possession of the said plots shall be given". Possession was given accordingly  and the  Director  of  Industries  in  CA 560/70 in  turn allotted  the plot covered in it to one Mrs. B. K. Anand respondent 5 therein.      The writ  Petitions filed by the appellants in the High Court challenging  the said  orders  failed  and  hence  the appeal by special leave.      Allowing CA 559/70 and dismissing CA 560/70, the Court, ^      HELD: The  inquiry envisaged  under sub  section (1) of section  35   of  the   Defence  of   India  Act,  1962,  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

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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). [814 C-E]      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 810 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. [814 E-F]      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. 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. [814 C-D, F-G]      [The Court, however, passed a qualified and conditional order in terms].

JUDGMENT:      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      UNTWALIA, J.-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

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811 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. 812           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

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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 813 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-

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    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 814      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 815 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.

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              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. 816