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PETITIONER: MADAN GOPAL AGARWAL

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, ALLAHABAD AND OTHERS

DATE OF JUDGMENT10/10/1972

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. RAY, A.N. PALEKAR, D.G. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 2656            1973 SCR  (2) 610  CITATOR INFO :  R          1974 SC  87  (11)

ACT: U.P.  (Temporary) Accommodation Requisition Act, 1947,  S.3- Order of requisition made without hearing to owner  occupant whether valid.

HEADNOTE: The appellant’s house in Allahabad was let out to the  State Government  for  a  period of five years.   Soon  after  the expiry of the period of lease in September 1969 the District Magistrate passed an order under s.3 of the U.P. (Temporary) Accommodation Requisition Act 1947 requisitioning the  house to provide accommodation to a public servant.  The appellant was  asked to hand over possession of the house  ’Within  24 hours  after  the  expiry of 15 days from the  date  of  the service  of the order on him.  He challenged the order in  a petition  under Art. 226 of the Constitution on  the  ground that the order was issued without issuing any notice to  him and without giving him a hearing.  The High Court  dismissed the petition taking the view that since the house was  taken away from the appellant’s use for a temporary period only he did  not  stand deprived of his property, and,  therefore  a detailed  procedure was not necessary.  The appellant  filed an appeal in this Court by special leave. Allowing the appeal, HELD  : Although s.3.of the Act does not contain an  express provision  for notice and hearing before the making  of  the requisitioning  order. such a provision is to be read  there by necessary implication.  The object of the provision is to requisition  an immovable property.  Requisitioning  of  the property deprives the owner of the property of the right  to hold and enjoy the property as lie likes.  The right to hold and  enjoy  the  property  is  a  cherished  right.   It  is difficult to assume that the legislature would have intended to  deprive  him of his cherished right without  notice  and hearing. [613C] Under  the main part of s.3, the District Magistrate,  after making  up his mind as to the existence of a public  purpose to  warrant the making of an order of requisition,,  has  to decide  whether, in view of that public purpose, he  has  to

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requisition a particular accommodation.  He has to  consider the  suitability  of the accommodation in the light  of  its location,   size  and  compensation  payable.    These   are objective factors, and, there is no reason why the  District Magistrate  should not hear the owner of  the  accommodation proposed  to be requisitioned on these matters.   Under  the first proviso to the section, the District Magistrate has to consider whether the building or part of a building is  used for  religious  worship.   Under  the  second  proviso   the District  Magistrate is to see whether suitable  alternative accommodation   is  available  for  the  person  in   actual possession of the property.  These matters cannot be  fairly and  satisfactorily determined without giving a  hearing  to the owner or the person in occupation of the property.  [613 H-614 G]  It  is  necessary  to bear in mind that the  Act  does  not provide  for  any appeal or revision from the order  of  the District  Magistrate under s.3. The District  Magistrate  is constituted the plenary authority.  It seems reason- 611 able  to think that the legislature intended that  an  order under  s-3 should be made after notice and hearing, so  that no unfairness is done to anyone. An  elaborate  procedure  is  not  necessary.   The   barest minimum, however is a fair hearing.  Notice should be  given to  the  person  who  will  be  affected  by  the  order  of requisition  asking him to show cause why his  accommodation should not be requisitioned.  He should be given  reasonable time to file his reply to the notice.  In some cases it  may be  necessary  to give him an opportunity of  producing  his oral and documentary evidence. [615B] The   contention   that  since  an  order   under   s.3   is administrative  it  is not necessary to  hear  the  affected party  could not be accepted.  This Court, in  Kraipak  held that rules of ,natural justice will apply to  administrative enquiries.  The decisions in Daud Ahmad and K. R. Err v hold that  in  an  enactment  which  deprives  a  person  of  his property, there ’is necessarily implied the pre-requisite of a hearing. [617F] The  order  of requisition in the present case  having  been made without a heating must be held to be illegal. A. K. Kraipak and others v. Union of India, [1970] 1  S.C.R. 457, Daud Ahmad v. The District Magistrate, Allahabad and others, A.I.R.  1972  S.C.  896 State of Punjab v. K.  R.  Erry  and Sobhag Rai Mehta, [1973] 2S.C.R. 405, applied. Province of Bombay v. Kusaldas S. Advani and others,  [1950] S.C.R.  621,  Ram  Chandra v.  The  District  Magistrate  of Aligarh and Others, A.I.R. 1953 Allahabad 520, The State  of Bombay v. Bhanji Munji and another,   [1955]) 1 S.C.R.,  777 and Collector of Akola and others v. Ramchandra and  others, [1968] 1 S.C.R. 401 distinguished.

JUDGMENT: CIVIL, APPELLATE JURISDICTION : Civil Appeal No. 80 of 1972. Appeal  by  certificate from the judgment  and  order  dated January 23, 1970 of the Allahabad High Court in Civil  Misc. Writ No. 392 of 1970. V.   M. Tarkunde J. B. Goyal and R. A. Gupta, for the appel- lant. G.   N. Dikshit and M. V. Goswami, for the respondent.

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The Judgment of the Court was delivered by. DWIVEDI,  J.-The  appellant is the owner  of  32,  Balrampur House,  Mumfordganj, Allahabad.  After residing therein  for some  time,  he started living in 33 Pan  Dariba,  Allahabad with  his mother.  His own house he let out on September  9, 1964 to the State Government for a period of 5 years- on a I monthly  rent of Rs. 300/-.  The State  Government  obtained the  lease  for the purposes of residence or Office  of  the Directorate of Geology and Mining, U.P. The lease was signed by Shri P. N. Singh, Geologist, 612 on  behalf of the State Government.  In 1967  the  appellant had  shifted from the house No. 33, Pan Dariba to house  No. 39,8/5, Meerapur, Allahabad.  In Meerapur he was living as a tenant. The period of lease with respect to Ms own house expired  on September  9,  1969.   The  District  Magistrate,  Allahabad passed  an  order  under  S.  3  of  the  U.P.   (Temporary) Accommodation Requisition Act, 1947 (hereinafter referred to as the Act).  The order was made on October 4, 1969.  By the order  the  District Magistrate requisitioned the  house  to provide  accommodation  to  Shri  P.  N.  Singh,  Geologist, Directorate  of Geology and Mining, U.P. The  appellant  was directed  to  hand over possession of the  house  within  24 hours  after  the  expiry of 15 days from the  date  of  the service of the order on him. The  appellant filed a writ petition in the  Allahabad  High Court  challenging  the validity of the order.  One  of  the grounds  of  challenge was that the order was  made  without issuing any notice to him and without giving him a  hearing. The petition was dismissed summarily by a Division Bench  of the High Court.  The argument of want of notice and  hearing was not accepted by the High Court.  Feeling aggrieved  with the decision of the High Court, the appellant has filed this appeal by special leave. Counsel  for the appellant has submitted before us that  the requisitioning  order  is  invalid for want  of  notice  and hearing.   Counsel for the District Magistrate says that  we should  not  entertain  the argument as it  was  not  raised before the High Court.  But we are satisfied on a reading of the judgment of the High Court that the point was raised  by the   appellant  before  the  High  Court.   Rejecting   the argument,  the  High Court said : "Where a person  is  being deprived  of his property, it can be said that he should  be given  an  opportunity before the land is acquired;  but  by requisition  the property is taken away from his use  for  a temporary  period and for such requisition such  a  detailed procedure  is  not necessary.  We are of  opinion  that  the order of requisition is not invalid, nor can s. 3 of the Act be said to be ultra vires simply because it does not provide for a show cause notice to be served on the owner before the order of requisition can be passed."               Coming to the argument, s. 3 of the Act reads               "If in the opinion of the District  Magistrate               it    is   necessary   to   requisition    any               accommodation for any public purpose, he  may,               by   order   in  writing,   requisition   such               accommodation   and   may  direct   that   the               possession  thereof shall be delivered to  him               within such period as may be specified in  the               order, provided that the period               613               so  specified shall not be less than  15  days               from the date of the service of the order;               Provided  also that no building or part  of  a

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             building   exclusively  used   for   religious               worship  shall  be  requisitioned  under  this               section.               Provided   further that no accommodation which               is in the actual     occupation of any  person               shall be requisitioned unless  the    District               Magistrate   is   further   of   the   opinion               that  suitable    alternative    accommodation               exists  for his needs or has been provided  to               him." The section consists, of three parts : the main part and the Iwo  provisos  Evidently  it does  not  contain  an  express provision  for notice and hearing before the making  of  the requisitioning  order.   But it appears to us  that  such  a provision is to be read thereby necessary implication.   The object  of  the  provision is to  requisition  an  immovable property.  Requisitioning of the property deprives the owner of the property of the right to hold and enjoy the  property as he likes.  The right to hold and enjoy the property is  a cherish  right.   It  is true that the Act  is  a  temporary measure,  but  it has remained on the statute  book  for  25 years.   There  is acute scarcity of  accommodation  in  the State, and an accommodation once requisitioned is ordinarily not expected to be restored early to the owner.  We find  it difficult to assume that the legislature would have intended to  deprive  him of his cherished right without  notice  and hearing. The District Magistrate may requisition an accommodation  if he is of opinion that it is necessary to requisition it  for any  public purpose.  He is accordingly to make up his  mind on  two  matters  : (1) there exists  a  public  purpose  to warrant  the making of an order of requisition; and  (2)  in view of that public purpose it is necessary to requisition a particular  accommodation.   On the second aspect  he  shall have  to  consider whether the particular  accommodation  is adequate for the public purpose for which the requisitioning order  is sought to be made.  For instance, if a  particular accommodation  is sought to be requisitioned for any  public office,  the  District  Magistrate has  to  satisfy  himself whether it is sufficient for the needs of that public office and whether its location and structure are suitable for that office.   He should also consider whether any other  equally good  or better accommodation may be requisitioned for  that public office on payment of a lesser amount of  compensation than  the  one  which will be  payable  for  the  particular accommodation  proposed  to  be  requisitioned.   These  are objective  factors, and there is no reason why the  District Magistrate  should not hear the owner of  the  accommodation proposed  to be requisitioned on these matters.   The  owner may 614 suggest  to  him equally good accommodation for  the  public office  for which the Government will be required to  pay  a lesser  amount  of compensation than the one  which-will  be payable for his accommodation. The first proviso to s. 3 provides that no building or  part of  a building "specially used for religious worship"  shall be  requisitioned  by the District  Magistrate.   Whether  a building or part of a building is being exclusively used for religious worship, is a question of fact.  In some cases  it may   become  a  hotly  disputed  question.   The   District Magistrate  may  be informed by his  subordinates  that  the building is not being used at all or is being used partially for  religious  worship; the owner, on the other  hand,  may assert  that  the building is being-  used  exclusively  for

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religious  worship.   Fairness, demands  that  the  District Magistrate should hear the owner of the accommodation sought to be requisitioned by him, so that the owner may be able to satisfy  him  in any particular, case that the  building  is being  exclusively used for religious worship.  It seems  to us that the first proviso strongly suggests the  implication of notice and hearing in the main part of s. 3. The second proviso also seems to support that inference.  It provides  that  no  accommodation "which is  in  the  actual posses,,,ion  of any person" shall be  requisitioned  unless the   District  Magistrate  is  of  opinion  that   suitable alternative  accommodation exists for his needs or has  been provided  to  him.   Here the  District  Magistrate  has  to consider  two  things : (1) the accommodation sought  to  be requisitioned is in the actual possession of any person; and (2)  a  suitable alternative accommodation  exists  for  his needs  and has been provided to him.  If  the  accommodation sought  to be requisitioned is actually not occupied by  any person,  it is not necessary to consider the second  matter. But  whether the accommodation proposed to be  requisitioned is  in  the  actual’ occupation of any person or  not  is  a question  of fact and can-not satisfactorily  be  determined unless  the person claiming to be ,occupying it is  given  a hearing by the District Magistrate.  So in every case  where the   District  Magistrate  proposes  to   requisition   any accommodation, it will be just and fair to hear at least the owner of the accommodation for he may set up a claim that he is actually occupying it. It  is  necessary  to bear in mind that  the  Act  does  not provide  for  any appeal or revision from the order  of  the District  Magistrate under s. 3. The District Magistrate  is constituted the plenary authority’ It  seems  reasonable  to think that the legislature intended  that    an order  under s. 3 should be made after notice and hearing, so  that    no unfairness is done to anyone. The High Court rejected the argument of the appellant simply on  the  ground that the order of requisition  deprives  the owner of 615 the property of the use thereof for a temporary period.   It is not easy to follow what the High Court meant when it said that it was not necessary to follow "a detailed  procedure." An elaborate procedure like the one provided for in the Code of  Civil Procedure could undoubtedly be not followed.   The dimension   of   hearing   will  vary   according   to   the circumstances of each case.  The barest minimum, however, is a  fair hearing.  Notice should be given to the, person  who will  be affected by the order of requisitioning asking  him to  show why his accommodation should not be  requisitioned. He should be given reasonable time to file his reply to  the notice.   In some cases it may be necessary to give  him  an opportunity of producing his oral and documentary  evidence. As  for  instance,  where  he  pleads  that  he  needs   the accommodation  for  his  own  residence.   The  High   Court disposed  of  the  point without examining  the  scheme  and setting of s. 3. In our view the scheme and setting of s.  3 imply  a  notice  and  hearing to the  person  who  will  be affected by the proposed requisitioning order. Counsel  for the District Magistrate has submitted that  the District Magistrate acts in an administrative capacity under s.  3.  According to him, it is not necessary  to  hear  the affected  party  in an administrative  proceeding.   He  has relied on Province of Bombay v. Bhanji Munji and  another(3) and  Collector of Akola The District Magistrate  of  Aligarh and  others (2 ) , The State of Bombay v. Bhanji  Munji  and

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another(3)  and Collector-of Akola and others v.  Ramchandra and others (4 ). In none of these cases the issue of  notice ind hearing directly arose for consideration. In the first case, certain property was requisitioned  under s.  3 of the Bombay Land Requisition Ordinance, 1947, by  an order of the Government, dated February 6, 1948.  The  order was  made before the commencement of the  Constitution.   It was  challenged by a petition in the High Court  of  Bombay. The petitioner prayed for the issue of a writ of  certiorari to  quash the order.  The Bombay High Court issued the  writ of certiorari.  The argument on behalf of the Government  in this  Court  was  that as the Government was  acting  in  an administrative  capacity  and not in a  judicial  or  quasi- judicial  capacity,  the  writ of certiorari  could  not  be issued.  This Court held that the act of requisitioning was administrative  in  nature  and  not  quasi-judicial.    The argument  that  the existence of a public  purpose  required judicial  consideration was negatived.  In the second  case, the  High  Court  held that the  decision  of  the  District Magistrate  that  there  existed  a  public  purpose  and  a particular  accommodation  was needed for that  purpose  was final and could not be questioned in a court of law.  In the third case, an accommodation was requisitioned under the (1)  [1950] S. C. R. 621. (3)  [1955] 1 S. C. R. 777. (2)  A. 1. R. 1952 Allahabad 520. (4)  [1968] 1 S. C. R. 401. 616 Bombay Land Requisition Act, 1948.  It was held that it  was for the Government to decide whether there existed a  public purpose to justify the requisitioning of accommodation.   In the  last case, this Court held that the expression  "public purpose" was wide enough to include a temporary as well,, as a durable purpose.  Section 5 of the Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power. Counsel  for the appellant has relied on A, K.  Kraipak  and others  v.  Union of India(1), Daud Ahmad  v.  The  District Magistrate,  Allahabad and others(2) and State of Punjab  v. K.  R.  Erry  and Sobhag Rai Mehta(3).  In  A.  K.  Kraipak, certain  Government  employees  of the State  of  Jammu  and Kashmir  felt  aggrieved with the selection of  persons  for appointment  to the Indian Forest Service.   The  selections were  made  solely on the basis of the record  of  officers. Their  suitability  was  not  decided  by  oral  or  written examination,  nor  were  they interviewed.   A.  K.  Kraipak contended before this Court that the selections were bad  as they  were made without following the principles of  natural justice.   The contrary argument was that-the principles  of natural justice would not apply to the administrative act of selection  of officers for appointment to the Indian  Forest Service.  Hegde, J. said that "the dividing line between  an administrative  power  and a quasi-judicial power  is  quite thin  and is being gradually obliterated." At pages 465  and 466  of  the  report, the learned Judge added  :  "With  the increase  of the power of the administrative bodies  it  has become necessary to provide guidelines for the just exercise of  their power.  To prevent the abuse of that power and  to see that it does not become a new despotism, courts are gra- dually   evolving  the  principles  to  be  observed   while exercising such powers.  In matters like these, public  good is  not  advanced by a rigid adherence to  precedents.   New problems   call  for  new  solutions."  Assuming  that   the committee  making selection of officers for  appointment  to the  Indian  Forest Service  was  exercising  administrative

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power,  the  learned Judge said : "The aim of the  rules  of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.  These rules can  operate only in areas not covered by any law validly made.  In other words,  they  do  not  supplant the  law  of  the  land  but supplement  it.  If  the purpose of  the  rules  of  natural justice is to prevent miscarriage one fails to see why those rules   should  be  made  inapplicable   to   administrative enquiries.  Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries  which were considered administrative at one  time are now being considered as quasi-judicial in character. (1) (1970) 1 S. C. R. 457. (3) [1973] 2 S.C.R. 405. (2) A. I. R. 1972 S. C. 896 617 Arriving  at  a  just decision is the  aim  of  both  quasi- judicial enquiries as well as administrative enquiries.   An unjust  decision in an administrative enquiry may have  more far  reaching  effect. than a decision in  a  quasi-judicial enquiry." In K. R. Erry, this Court held that the pensionary right  of a  superannuated Government Servant is ’property’  and  that his  pension cannot be reduced without giving him a  hearing even  though  the relevant service rules  do  not  expressly provide for a hearing.  Daud Ahmad is a direct authority for the  point before us. There the Court was concerned with  an order  under  S. 3 of the Act.  Daud Ahmad was  occupying  a certain  accommodation  of  which he  was  the  owner.   The accommodation  was requisitioned by the District  Magistrate without notice and hearing.  This Court quashed the order of requisition  for want of notice and hearing.  One of us  (A. N. Ray J.) said : "The principle of natural justice has been applicable  to  administrative enquiries  or  quasi-judicial enquiries.  It is the nature of the power and  circumstances and  conditions under which it is exercised that will  occa- sion  the  invocation of the principle of  natural  justice. Deprivation  of  property affects rights of  a  person.   If under the Requisition Act the petitioner was to be  deprived of  the occupation of the premises the  District  Magistrate had to hold an enquiry in order to arrive at an opinion that there  existed alternative accommodation for the  petitioner or  the  District  Magistrate  was  to  provide  alternative accommodation." Counsel for the District Magistrate has submitted that Daud, Ahmad  is distinguishable from the present case,  for  there the Court was concerned with interpreting the second proviso to s. 3. Daud Ahmad and K. R. Erry hold that in an enactment which   deprives  a  person  of  his  property,   there   is necessarily  implied  the prerequisite  of  hearing.   These cases  support our construction that notice and  hearing  to the affected party is necessarily implied in s. 3. It is not disputed  on  behalf  of the District  Magistrate  that  the requisitioning  order was made by him without giving  notice and hearing to the appellant.  So we hold that his order  is illegal. The appeal is allowed with costs.  The order of the District Magistrate   dated  October  4,  1969   requisitioning   the accommodation is quashed. G.C                               Appeal allowed. 618