Full Judgment Text
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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