Union of India (Uoi) vs Ram Kanwar And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 29 August, 1961

Coram: K. Subba Rao, M. Hidayatullah, P.B. Gajendragadkar

The case titled Union of India versus Ram Kanwar and others, decided on 29 August 1961, was heard by a bench of three judges: K. Subba Rao, M. Hidayatullah and P. B. Gajendragadkar. Justice Subba Rao authored the judgment. The matter before the Supreme Court arose from a special‑leave appeal against a decision of a division bench of the Circuit Bench of the Punjab High Court at Delhi, which in turn had upheld a decree of a single judge of that High Court. The lower court had issued a writ of mandamus directing the Union of India to restore possession of a flat that the Government had requisitioned to the respondents.

The flat in question was Flat No. 5 in the Aggarwal Building located on Connaught Circus in New Delhi. It was owned by one Babu Ram, whose sons and widow were listed as respondents 1 to 6. By an order dated 14 April 1943, the Government of India requisitioned the flat under rule 75‑A(1) of the Defence of India Rules for an initial period of one year, commencing on 15 April 1943 and ending on 14 April 1944. During that period the flat was occupied by a Mr Hardie of the Indian National Airways. The requisition was subsequently extended repeatedly, and a further order dated 2 April 1946 stipulated that the flat would be requisitioned from 15 April 1946 until further orders of the Central Government. After Mr Hardie vacated, the flat was allotted to other officers.

Babu Ram repeatedly appealed to the Government for de‑requisition of the flat so that he could use it personally. He explained that he suffered from heart trouble, that his health was poor, that two of his sons had been married, and that under those circumstances it had become impossible for him to continue living in his small house situated in a narrow lane. Despite these representations, the Government of India rejected his request, reasoning that once the officers of Indian National Airways surrendered the premises, the flat would be needed for allocation to Central Government officers. Babu Ram died on 24 October 1951.

It appears that for a period of four or five months in 1947 the flat remained vacant and thereafter it was occupied by refugees from West Pakistan. Later the premises were given to the present respondent 7, Triveni Kala Sangam, a private dance and music school. On 4 November 1952, respondent 1 again petitioned the Government to de‑requisition the flat, primarily on the ground that the flat was no longer being used by Central Government officers but was instead in the possession of Triveni Kala Sangam. No reply was forthcoming, prompting a reminder on 26 June 1953. The Government responded that the matter was receiving attention and that further communication would follow in due course. Subsequently, on 16 September 1953, the Government informed the first respondent that he could execute a lease deed in favour of the Government concerning the flat. As the appellants did

In this case the petitioners were unable to obtain possession of the disputed flat, and consequently they filed a petition for a writ of mandamus in the Punjab High Court. The petition was heard by Justice Falshaw, who on 19 October 1954 issued a writ directing the respondents, who were the appellants, to place the flat in the petitioners’ possession. The respondents challenged that order by filing a Letters Patent appeal on 26 November 1954 in the Circuit Bench of the Punjab High Court at Delhi. The appeal was submitted within thirty days of the judgment, after allowing for the time required to obtain certified copies of the necessary documents, but it was filed more than twenty days after the judgment had been pronounced. That appeal was heard by a division bench consisting of the Chief Justice and Justice Mehar Singh. The bench held that the appeal was out of time and that no sufficient reason was shown to excuse the delay. The judges also examined the merits of the dispute and agreed with Justice Falshaw that the facts supported the issuance of the writ. Accordingly, the bench dismissed the appeal, which gave rise to the present appeal before this Court. The Attorney‑General, appearing for the respondents, argued that the Letters Patent appeal was timely because it had been filed within the thirty‑day period prescribed for appeals from a single‑judge order, and that even if there was uncertainty as to whether the Limitation Act or the High Court’s own rule should govern the period, the law was in a fluid state and the delay should therefore be excused. On the substantive issues the Attorney‑General contended that the original requisition of the flat under rule 75‑A of the applicable Rules had been continued under section 3 of the Requisitioned Land (Continuance of Powers) Act, 1947, which empowered the appropriate Government to use or deal with the requisitioned land in any manner it deemed expedient. He submitted that, in exercising that power, the Government had placed the Triveni Kala Sangam in possession of the flat, and that under section 24(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952, the requisition was to be regarded as a requisition under section 3 of the 1952 Act, thereby qualifying as a public purpose of the Union. Since that public purpose had not ceased to exist, the petitioners were not entitled to ask for de‑requisition of the flat. Counsel for the petitioners, Mr A V Viswanatha Sastri, sought to uphold the High Court’s order both on the question of limitation and on the merits. The appeal raised three questions for determination: the period of limitation applicable to an appeal from a single‑judge order to a division bench of the same High Court; whether an appeal filed out of time could be excused on the ground of sufficient cause; and whether the petitioners were now legally entitled to request de‑requisition of the premises under the 1952 Act.

In this appeal the Court was asked to consider three distinct issues. First, it had to determine the period of limitation that applied to an appeal that was filed against an order of a Single Judge of the Punjab High Court and that was directed to a division bench of the same High Court. Second, the Court needed to decide whether, if the appeal had been filed after the prescribed time limit, there existed a sufficient cause that would justify excusing the delay in filing the appeal. Third, the Court was required to examine whether the respondents were now legally authorized to request that the Central Government de‑requisition the premises in question under the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952.

To address the first issue, the Court explained that it was necessary to examine the applicable provisions of the Indian Limitation Act, 1908, the relevant clauses contained in the Letters Patent of the High Court, and the procedural rules that the High Court had promulgated. Section 29(2) of the Limitation Act provides that when any special or local law prescribes a limitation period for a suit, appeal or application that differs from the period set out in the First Schedule, the provisions of Section 3 of the Act shall be applied as if the special period were included in the First Schedule. The First Schedule itself contains a description of the appeal period, stating that the limitation period commences from the date of the decree or order of the concerned High Court. Specifically, the Schedule indicates that for a decree or order issued by any of the High Courts—whether the High Court at Fort William, the High Court at Madras, or the High Court at Bombay—the period of limitation begins from the date of that decree or order.

The Court then turned to the Letters Patent governing the High Court of Lahore. Clause 27 of those Letters Patent authorises the High Court of Judicature at Lahore to make rules and orders for regulating the practice of the Court, with a view to adopting, as far as possible, the provisions of the Code of Civil Procedure, 1908, and any law that may amend or alter it. Clause 37 further declares that all provisions of the Letters Patent are subject to the legislative powers of the Governor‑General in Council, including those conferred by sections 71 and 72 of the Government of India Act, 1915, and that the Letters Patent may be amended or altered by such legislative authority.

Subsequently, the Court examined the rules made by the High Court of Punjab. Rule 4 provides that no memorandum of appeal filed under clause 10 of the Letters Patent shall be entertained if it is presented after the expiration of thirty days from the date of the judgment appealed from, unless the bench admitting the appeal, at its discretion and for good cause shown, grants additional time for the presentation of the memorandum. Finally, the Court observed that, according to Article 151 of the Limitation Act, a period of twenty days is prescribed for preferring an appeal from an order of the High Court of Punjab when that order is made in the exercise of its original jurisdiction. This observation formed the basis for the Court’s subsequent analysis of whether the appeal in the present case was filed within the applicable limitation period.

In this case the Court observed that when the High Court exercises its original jurisdiction, the limitation period for filing an appeal under clause ten of the Letters Patent is set out in rule four of the High Court Rules, which provides a thirty‑day period. Accordingly, if the provisions of article one hundred and fifty‑one of the Limitation Act were to apply, the appeal in the present matter would have been barred because that article allows only twenty days. However, if rule four could be invoked, the appeal would have been timely. The Court then explained the combined effect of the relevant provisions. Under clause twenty‑seven of the Letters Patent, the High Court of Judicature of Lahore is authorised to make a rule that prescribes the limitation period for appeals from orders made by that Court in its original jurisdiction to a division bench of the same High Court. Clause thirty‑seven further provides that the provisions of the Letters Patent are subject to the legislative powers of the Governor‑General in Council, which means that any rule made under the Letters Patent must necessarily be subject to the Limitation Act, a law enacted by the Legislative Council. Article one hundred and fifty‑one of the Limitation Act stipulates a twenty‑day limitation period for appealing an order of the High Court made in original jurisdiction, and in the absence of any other limitation the Court holds that rule four of the High Court Rules must yield to that article. Nevertheless, section twenty‑nine sub‑paragraph two of the Limitation Act limits the reach of that article by providing that where a special or local law prescribes a limitation period for an appeal, that period is to be treated as the period prescribed in the First Schedule of the Limitation Act for the class of appeal covered by the special law. In other words, if rule four is regarded as a special law, the Limitation Act itself must be deemed to prescribe the period fixed by rule four for the cases falling within that rule, and to that extent the rule displaces article one hundred and fifty‑one of the First Schedule. Consequently, article one hundred and fifty‑one must be read subject to any special law. The Court therefore concluded that the argument that clause thirty‑seven of the Letters Patent makes the High Court’s rule subordinate to the Limitation Act, thereby causing article one hundred and fifty‑one to prevail over rule four, has no force. In brief, the legal position is that clause twenty‑seven empowers the High Court to make a rule fixing the limitation period for a Letters Patent appeal against an order of a single judge made in original jurisdiction, and by virtue of clause thirty‑seven that rule is subject to

The Court explained that, although rule 4 is subject to the provisions of the Limitation Act, the Act itself preserves the operation of that rule. Consequently, rule 4 governs appeals of the type described, while Article 151 of the Limitation Act applies to appeals that are not covered by rule 4 or to appeals arising from orders of other High Courts exercising their original jurisdiction, provided that no comparable rule to rule 4 has been made by those Courts. The only issue requiring determination, the Court observed, was whether rule 4 qualifies as a “special law” within the meaning of section 29(2) of the Limitation Act. Rule 4 was enacted by the High Court pursuant to the legislative power conferred by clause 27 of the Letters Patent. Because the rule is a law made specifically for the special cases it addresses, the Court concluded that it inevitably falls within the definition of a special law under section 29(2). The Court noted that this position had been adopted earlier by the Punjab High Court in Punjab Co‑operative Bank Ltd. v. Official Liquidators, Punjab Cotton Press Company Ltd. (in liquidation) (A.I.R. 1941 Lahore 57 (F.B.)). In that case, a full bench held that statutory rules framed by a High Court under clause 27 of the Letters Patent, delegated by His Majesty acting under parliamentary authority, constitute a “special law”. The Court affirmed this view and observed that it was unnecessary to consider other authorities cited by counsel, as none of those decisions examined the scope of section 29 of the Limitation Act. Moreover, the learned counsel for the appellant, Mr A V Viswanatha Sastri, did not argue that rule 4 failed to meet the test of a special law. Accordingly, the Court held that, under rule 4, an appeal could be filed within thirty days of the order of Justice Falshaw, and the appeal in the present case, filed on the twenty‑third day, was therefore timely. Having resolved that the appeal was filed within the prescribed period, the Court held that the second question raised by the parties did not need to be addressed in these proceedings.

The Court then turned to the merits of the dispute, which required a construction of the relevant provisions of the Defence of India Rules, the 1947 Act and the 1952 Act. For the sake of clarity, the Court indicated that the pertinent provisions could be examined together in a single place. In particular, the Court reproduced Rule 75‑A of the Defence of India Rules, which provides that, if the Central Government or a Provincial Government is of the opinion that it is necessary or expedient for the defence of British India, for public safety, for the maintenance of public order, for the efficient prosecution of the war, or for the preservation of supplies and services essential to community life, then the Government may, by written order, requisition any property, whether movable or immovable, and may issue any further orders it considers necessary or expedient in connection with that requisition. The Court emphasized that this provision forms the foundation for assessing the powers exercised by the Government under the Defence of India Rules and that its interpretation would determine the outcome of the substantive issues raised in the appeal.

The Court noted that under sub‑rule (2) of Rule 75‑A, once the Central Government or a Provincial Government had requisitioned any property in accordance with sub‑rule (1), that Government was permitted to use or otherwise deal with the property in any manner it considered expedient. The rule further provided that the Government could acquire the property by serving notice on the owner, or, if the owner could not be readily ascertained or if ownership was disputed, by publishing a notice in the official Gazette stating that the Central or Provincial Government had decided to acquire the property pursuant to the rule. The Court then recited the relevant provisions of the Requisitioning and Acquisitioning of Immovable Property Act, 1952. Section 24(1) repealed three earlier statutes – the Requisitioned Land (Continuance of Powers) Act, 1947; the Delhi Premises (Requisition and Eviction) Act, 1947; and the Requisitioning and Acquisitioning of Immovable Property Ordinance, 1952. Section 24(2) clarified that any property which, immediately before the repeal, had been subject to requisition under any of those statutes would, on the commencement of the 1952 Act, be deemed to be property requisitioned under section 3 of that Act, and that all the provisions of the 1952 Act would therefore apply to it. The Court then explained the operative clause of section 3(1) of the 1952 Act, which required that when a competent authority was of the opinion that any property was needed or likely to be needed for a public purpose belonging to the Union, the authority had to issue a written notice to the owner or any other person in possession of the property. The notice had to specify the purpose of the requisition and require the recipient to show cause within fifteen days of service why the property should not be requisitioned. Moving to section 6(1), the Court described that the Central Government retained the power to release from requisition any property that had been requisitioned under the Act at any time. Upon release, the Government was obliged, as far as possible, to restore the property to the condition it was in when possession was taken, subject only to reasonable wear and tear and damage caused by irresistible force. The provision further stipulated that if the purpose for which the requisitioned property had been used ceased to exist, the Central Government must, unless the property had been acquired under section 7, release the property from requisition as soon as practicable. Finally, the Court recounted the legislative history of the Defence of India Rules, which had been issued under the Defence of India Ordinance, 1939, and later continued by section 21 of the Defence of India Act, 1939, even after the ordinance’s repeal. Under rule 75‑A of those Rules, the power to requisition property was expressly conditioned on the purposes specified in sub‑rule (1), and the decision as to whether requisition was necessary or expedient was left to the Government’s subjective satisfaction.

In this case, the Court explained that after a property had been requisitioned, the Central Government possessed authority to handle that property in any way that it considered expedient. The term “expedient” was interpreted narrowly to refer only to actions that furthered the purposes for which the requisition was originally made. The Court emphasized that giving a broad meaning to “expedient” would amount to attributing to the Legislature an intention to allow the Government to requisition property on false pretenses, which was not intended. The Court then turned to Act 17 of 1947, which was enacted to preserve certain emergency powers over land that had been requisitioned under the Defence of India Act once that Act expired. Under that statute, the expression “requisitioned land” was defined as any immovable property that, at the commencement of the Act, was already subject to a requisition made under the applicable rules. Section 3 of Act 17 provided that, notwithstanding the expiry of the Defence of India Act and its rules, the land so classified would continue to be subject to requisition until the expiry of the 1947 Act, and it empowered the appropriate Government to “use or deal with any requisitioned land in such manner as may appear to it to be expedient.” The Court observed that the purpose of the 1947 Act was merely to extend the existence of the earlier requisition, not to broaden the Government’s powers over the land. The continuation of the requisition originally made under the Ordinance was thus understood to be a simple extension of the existing order. The word “continue” therefore signified only a further lease of life for the prior requisition, not a new grant of authority. Moreover, the language in section 3 that allowed the Government to act “as may appear to it to be expedient” was essentially a restatement of the language in rule 75‑A (2) of the Defence of India Rules, which already conferred specific powers on the Government in respect of requisitioned property. Consequently, the Court held that the scope of authority under section 3 of the 1947 Act must be read in the same limited sense as that under rule 75‑A (2). The Court then noted that section 24(1) of the 1952 Act repealed the 1947 Act, but section 24(2) provided a deeming provision: upon commencement of the 1952 Act, any property that had been subject to requisition under the earlier statute would be deemed to be requisitioned under section 3 of the 1952 Act, and all the provisions of the 1952 Act would apply thereto. Relying on this deeming clause, it was argued that the requisition of the land and its use by the Government under the 1947 Act should be treated as a requisition under section 3 of the 1952 Act made for a public purpose, namely the purpose of the Union, and that because the purpose, identified as the use by the Triveni Kala Sangam, had not ceased, the requisition remained valid.

The Court observed that the appellants could not be compelled to surrender the property under section 6 of the Act, because the notional effect created by section 24(2) would operate only upon a requisition that had already been lawfully made. That notional or “fictional” transformation could not be employed to legitimize any act of the Government that was illegal in its inception. Consequently, the Court framed the issue as follows: what was the legal consequence of the earlier requisition that had been made under the Rules and subsequently under the 1947 Act? If the original requisition had been executed for the purposes enumerated in rule 75 of the Rules, and if that requisition had persisted under section 3 of the 1947 Act solely for those purposes, then, by virtue of section 3 of the 1952 Act, the requisition of the property would be deemed to be a requisition made for a public purpose, that purpose being attributable to the Union. However, the Court stressed that the validity of such a requisition must be assessed according to the statutes that existed at the time of the original requisition, and not on the basis of the provisions of the 1952 Act. The logical outcome of this analysis was that a requisition of property undertaken for the public purposes listed in rule 75‑A of the Rules would be treated as a requisition under section 3 of the 1952 Act, thereby attracting the full operation of that Act. Although it had been suggested that the Rules permitted a requisition to be made without a public purpose, the explicit language of rule 75‑A expressly repudiated that contention. Even though rule 75‑A did not require a notice stating the purpose, the requisition could only be effected for the four public purposes specified therein. The Court noted that the requisition for those purposes had continued under the 1947 Act, and therefore the purposes for which the property had been requisitioned must be deemed to be those enumerated in rule 75‑A. Even assuming, for argument’s sake, that section 5 of the 1952 Act was inapplicable because no notice had been issued under rule 75‑A, the proviso to section 6 would still become relevant. That proviso provides that when the purpose for which a requisitioned property is being used ceases to exist, the Central Government must, as soon as practicable, release the property from requisition.

Applying that provision to the facts before it, the Court found that the flat in question had not been used for any of the purposes for which it was originally requisitioned for several years. When the 1952 Act came into force, the flat was being used solely for the Triveni Kala Sangam, a purpose that was clearly not among the four purposes listed in rule 75‑A. Accordingly, the Court concluded that the original purpose for which the property had been requisitioned had effectively ceased to exist, and that the respondents were therefore entitled, under the proviso to section 6, to be placed in possession of the property. The Court further recorded that, notwithstanding this conclusion, the learned Attorney General contended that the current use of the building for the Triveni Kala Sangam constituted a public purpose, being a purpose of the Union, within the meaning of the relevant statutory provisions.

The Court examined the contention that, because the building was being used for the Triveni Kala Sangam, it fell within the meaning of section 3 of the 1952 Act and therefore the respondents could not rely on the proviso to section 6 for de‑requisition. The argument advanced by counsel for the Union was that every purpose of the Union must be treated as a public purpose. It was further submitted that the Constitution permits Parliament to legislate on any matter listed in List I or List III of the Seventh Schedule and that, under Article 73, the executive power of the Union extends to those matters. Consequently, it was argued that any requisition of property made for a purpose connected with those matters, irrespective of whether a specific law existed, would constitute a requisition for a public purpose, i.e., a purpose of the Union, as contemplated by section 3(1) of the 1952 Act. To support this line of reasoning, counsel relied on the decision of this Court in The State of Bombay v. Ali Gulshan. The Court identified a fundamental fallacy in that line of argument. It observed that the legal fiction created by treating a requisition made under rule 75‑A of the Rules as a requisition under section 3 of the 1952 Act would only be valid if the requisition were made for one of the specific purposes enumerated in rule 75‑A. The true test, therefore, was not whether the building’s use at the time the Act came into force was a public purpose within the meaning of section 3, but whether the requisition had originally been made for a purpose listed in rule 74‑A of the Rules. If the purpose for which the property was requisitioned ceased to exist, the proviso to section 6 imposed an obligation on the Government to release the property. Because the flat was being used for a purpose other than the one for which it had been requisitioned, the respondents were entitled to be put in possession of it. The Court expressly declined to opine on the validity of the Attorney‑General’s contention that relied on the Ali Gulshan decision.

Having considered the foregoing analysis, the Court concluded that the appeal could not succeed and therefore dismissed it. The order regarding costs was to follow the earlier direction dated 11‑8‑61. Accordingly, the appeal was dismissed.