Union of India vs Ram Kanwar and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 322 of 1960

Decision Date: 29 August 1961

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

In this case the petitioner was the Union of India and the respondents were Ram Kanwar and others. The judgment was delivered on 29 August 1961 by a bench of the Supreme Court of India consisting of Justice P B Gajendragadkar, Justice M Hidayatullah and Justice K Subba Rao. The decision is reported in 1962 AIR 247 and 1962 SCR (3) 313, and it has been cited in several later reports, namely RF 1972 SC 1935 (9), RF 1973 SC 569 (13), RF 1979 SC 1459 (67), RF 1980 SC 1632 (31) and R 1984 SC 1503 (9,10). The Court examined a number of statutory provisions, including the provisions relating to a Letters Patent appeal and the limitation for filing such an appeal, the provisions governing requisition and de‑requisition of a building under the Indian Limitation Act, 1908 (Act 9 of 1908), section 29(2), Article 151 of the Punjab High Court Rules, rule 4, Defence of India Rules, rule 75‑A, the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952), sections 3 and 24(2), and the Requisitioned Land (Continuance of Powers) Act, 1947 (Act XII of 1947). These statutes formed the legal framework for the issues that were decided by the Court.

The factual background disclosed that a building owned by the respondents was requisitioned by the Government of India under rule 75‑A(1) of the Defence of India Rules. The requisition was originally made to accommodate an officer of the Indian National Airways and subsequently officers of the Central Government. After those officers vacated the premises, the building was placed in the possession of Tribeni Kala Sangam, a private dance and music school. The respondents applied to the Central Government for de‑requisition of the building, but the application was rejected. They therefore filed a petition for mandamus in the Punjab High Court, which ordered the Union to restore possession of the building to them, and the High Court allowed that relief. The Union filed a Letters Patent appeal against the High Court judgment within thirty days, as permitted by rule 4 of the Punjab High Court Rules, but the appeal was filed beyond the twenty‑day period prescribed by the Indian Limitation Act. The High Court dismissed the appeal on the ground that it was barred by limitation and also on its merits. The Union obtained special leave to appeal to the Supreme Court. The Supreme Court held that rule 4 of the Punjab High Court Rules, which allows a Letters Patent appeal to be filed within thirty days of the judgment, constitutes a special law within the meaning of section 29(2) of the Limitation Act. Accordingly, an appeal filed within the thirty‑day period is timely and is not subject to the twenty‑day limitation prescribed by Article 151 of the First Schedule of the Limitation Act, a view endorsed by the earlier decision in Punjab Co‑operative Bank Ltd. v. Social Liquidators, AIR 1941 Lah. 57. The Court further held that section 24(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952, which repealed the Requisitioned Land (Continuance of Powers) Act, 1947, created a legal fiction whereby properties requisitioned under the earlier Act were to be deemed requisitioned under section 3 of the 1952 Act. By reason of that fiction, the requisition made under rule 75‑A of the Defence of India Rules was to be treated as a requisition under section 3 of the 1952 Act, meaning that the purpose specified in rule 75‑A was to be regarded as a public purpose of the Union within the meaning of section 3.

In this case, the Court noted that the building in question was being used for a purpose other than that for which it was originally requisitioned under rule 75‑A, and therefore it was liable to be de‑requisitioned. The appeal arose under civil appellate jurisdiction as Civil Appeal No. 322 of 1960, filed by special leave against the judgment and order dated 21 November 1957 of the Punjab High Court (Circuit Bench) at Delhi in L.P.A. No. 4 of 1955. The appellant was represented by counsel for the appellant, while the respondents numbered 1 to 6 were represented by counsel for those respondents, and respondent 7 was represented by counsel for that respondent. The judgment was delivered on 29 August 1961 by Justice Subba Rao. The appeal challenged a division‑bench decision of the Circuit Bench, which had affirmed a single‑judge order granting a writ of mandamus directing the Union of India to restore possession of a flat that had been requisitioned by the Government to the respondents. The flat, identified as Flat No. 5 in the Aggarwal Building, Connaught Circus, New Delhi, belonged to Babu Ram, whose sons and widow constituted respondents 1 to 6. By order dated 14 April 1943, the Government of India had requisitioned the flat under rule 75‑A(1) of the Defence of India Rules for one year, commencing on 15 April 1943 and ending on 14 April 1944, and had placed it under the occupation of a Mr Hardie of the Indian National Airways. The requisition was subsequently extended repeatedly, and on 2 April 1946 an order renewed the requisition 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 petitioned the Government for de‑requisition, citing his deteriorating health, the marriages of two sons, and the inadequacy of his existing dwelling. The Government declined, stating that upon surrender by the Indian National Airways officers, the flat would be required for allocation to Central Government officers. Babu Ram died on 24 October 1951. In 1947, the flat was vacant for four or five months, after which it was occupied by refugees from West Pakistan and later transferred to respondent 7, Triveni Kala Sangam, a private dance and music school. On 4 November 1952, respondent 1 again sought de‑requisition, arguing that the flat was not being used by Central Government officers but by the private school. The Court’s record continued with subsequent procedural developments, but the essential factual background and procedural history up to the petition for mandamus were set out as above.

In the course of the proceedings, the Government did not answer the initial request for de‑requisition of the flat, and the respondent therefore dispatched a reminder on 26 June 1953. The Government’s answer to that reminder stated that the matter was receiving attention and that further communication would be sent 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. Because the appellants failed to place the respondents in possession of the flat, the respondents were left with no alternative but to institute a petition for a writ of mandamus before the High Court of Punjab. The petition was heard by Justice Falshaw, who, on 19 October 1954, issued a writ of mandamus directing the appellants to hand over possession of the flat to the respondents. In response to that order, the appellants filed a Letters Patent appeal on 26 November 1954 in the Circuit Bench of the Punjab High Court at Delhi. The appeal was lodged within thirty days of the judgment, if the time required to obtain certified copies of the necessary documents is excluded, but it was filed more than twenty days after that period. The appeal was then heard by a division bench consisting of the Chief Justice and Justice Mehar Singh. The learned judges held that the appeal was filed out of time and that no sufficient cause existed to excuse the delay. They also examined the merits of the case and concurred with Justice Falshaw that there was a valid basis for granting the writ, and consequently dismissed the appeal.

The present appeal therefore arises from those findings. Counsel appearing for the appellants, identified as the Attorney‑General, contended that the Letters Patent appeal had in fact been filed within the prescribed thirty‑day period from the date of Justice Falshaw’s judgment and was therefore timely. Moreover, the counsel argued that, irrespective of the timing issue, the prevailing uncertainty in the law as to whether the limitation period prescribed by the Limitation Act or the rule formulated by the High Court should govern such appeals provided sufficient ground to excuse any delay. On the merits, the counsel submitted that the requisition originally made under Rule 75‑A of the Defence of India Rules had subsequently been continued under Section 3 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. 17 of 1947). Under that Act, the appropriate Government was empowered to use or deal with requisitioned land in any manner it deemed expedient, and in exercising that power it placed Triveni Kala Sangam in possession of the flat. The counsel further argued that, in accordance with Section 24(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952, the requisition was to be deemed a requisition under Section 3 of that Act and that, under the said provision, the purpose of the requisition must be regarded as a public purpose belonging to the Union.

In this case the Court observed that the purpose for which the premises had been requisitioned had not ceased to exist, and therefore the respondents were not entitled to request the de‑requisition of the flat. The counsel representing the respondents, identified as Mr A V Viswanatha Sastri, argued that the order of the High Court should be upheld both on the ground of limitation and on the merits of the case. The Court noted that three specific questions required consideration. First, it had to determine the period of limitation that applied to an appeal against an order of a single Judge of the Punjab High Court when the appeal was made to a division bench of the same Court. Second, the Court needed to decide whether, if the appeal had been filed out of time, there existed a sufficient cause to excuse the delay. Third, the Court was required to examine whether the respondents were legally entitled to petition the Central Government to de‑requisition the premises under the Requisitioning and Acquisition of Immovable Property Act, 1952.

To address the initial question, the Court stated that it was necessary to examine the relevant statutory provisions, the clauses of the Letters Patent, and the rules promulgated by the High Court. The Court referred to the Indian Limitation Act, 1908, particularly Section 29(2), which provides that where a special or local law prescribes a limitation period that differs from that set out in the First Schedule, the provisions of Section 3 shall apply as if the special period were prescribed in the Schedule. The First Schedule contains a description of the appeal period and indicates that the limitation period begins to run from the date of a decree or order of any of the High Courts of Judicature at Fort William, Madras, and Bombay, and for the Punjab High Court in the exercise of its original jurisdiction the period is twenty days. The Court also examined the Letters Patent of the High Court of Lahore. Clause 27 empowers the High Court of Judicature at Lahore to make rules and orders to regulate its practice and to adopt, as far as possible, the provisions of the Code of Civil Procedure, 1908, and any law made by a competent legislative authority for India. Clause 37 declares that the provisions of the Letters Patent are subject to the legislative powers of the Governor‑General in Council under sections 71 and 72 of the Government of India Act, 1915, and may be amended or altered accordingly. Finally, the Court considered Rule 4 of the Rules of the High Court of Punjab, which provides that no memorandum of appeal presented under clause 10 of the Letters Patent shall be entertained if it is filed after the expiration of the prescribed period.

The Court observed that the rule concerning appeals under clause ten of the Letters Patent provides a thirty‑day period for presenting the appeal from the date of the judgment appealed against, unless the bench admitting the appeal, at its discretion and for a demonstrated good cause, permits a further extension. The Court noted that Article 151 of the Limitation Act prescribes a twenty‑day period for filing an appeal against an order of the High Court of Punjab when that order is made in the exercise of its original jurisdiction. Consequently, if Article 151 were the sole provision applicable, the appeal filed in the present matter would have been barred as untimely. However, if the limitation period of Rule 4 of the High Court Rules were applicable, the appeal would have been filed within the permissible time. The Court then explained the combined effect of the relevant provisions: Clause 27 of the Letters Patent empowers the High Court of Judicature of Lahore to enact a rule fixing 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 37 stipulates that the provisions of the Letters Patent are subject to the legislative authority of the Governor‑General in Council, meaning that any rule made under the Letters Patent must conform to the Limitation Act, which is a law enacted by the Legislative Council.

The Court further explained that Article 151 of the Limitation Act sets a twenty‑day limit for appeals against orders of the High Court in its original jurisdiction and that, in the absence of any other limitation, Rule 4 of the High Court Rules would have to yield to that statutory provision. However, Section 29(2) of the Limitation Act narrows the scope of Article 151 by providing that when a special or local law prescribes a specific limitation period for an appeal, the provisions of Section 3 shall be applied as if that period were included in the First Schedule of the Act. In other words, if Rule 4 is treated as a special law, the Limitation Act itself deems the period prescribed by Rule 4 to be the applicable limitation for the class of appeals covered by that rule, thereby overriding the generic twenty‑day period of Article 151. Accordingly, Article 151 must be read subject to the special law, and the contention that Clause 37 of the Letters Patent merely subjects the High Court rule to the Limitation Act, causing Article 151 to prevail over Rule 4, was held to have no force. In brief, the Court concluded that the thirty‑day limitation prescribed by Rule 4 governs the appeal in question.

In this case the Court explained that clause 27 of the Letters Patent authorises the High Court to formulate a rule that fixes the period of limitation for an appeal under the Letters Patent against an order made by a single Judge exercising the original jurisdiction of the High Court. Clause 37 of the same Letters Patent makes that rule subordinate to the provisions of the Limitation Act, yet the Limitation Act itself preserves the operation of the rule. Consequently, rule 4 operates for such appeals, whereas article 151 of the Limitation Act applies to appeals that are not covered by rule 4 or to appeals from orders issued by other High Courts in the exercise of their original jurisdiction, provided no comparable rule has been made by the concerned High Court. The only issue therefore to be decided was whether rule 4 qualifies as a special law within the meaning of section 29(2) of the Limitation Act. The Court noted that rule 4 is enacted by the High Court pursuant to the legislative authority conferred by clause 27 of the Letters Patent. As the rule addresses special cases falling within its scope, it inevitably constitutes a special law as contemplated by section 29(2) of the Limitation Act. This interpretation had been accepted by the Punjab High Court in the decision of Punjab Co‑operative Bank Ltd. v. Official Liquidators, Punjab Cotton Press Company Ltd. (in liquidation). In that case a full bench held that statutory rules framed by the High Court under clause 27 of the Letters Patent, exercised under the authority delegated by His Majesty and ultimately derived from powers conferred by an Act of Parliament, are “special law”. The Court affirmed this view and indicated that a detailed examination of other authorities cited by counsel was unnecessary because none of those authorities considered the scope of section 29 of the Limitation Act. Moreover, counsel for the respondent had not argued that rule 4 failed to meet the definition of a special law under section 29. Accordingly the Court concluded that, under rule 4, an appeal could be lodged within thirty days of the order of Justice Falshaw, and the appeal filed on the twenty‑third day was therefore timely. Because the timeliness question was resolved, the second procedural issue did not arise for consideration in this appeal.

The substantive dispute in the appeal centered on the interpretation of the relevant provisions of the Defence of India Rules, the 1947 Act and the 1952 Act. For ease of reference the Court indicated that the pertinent provisions could be read together. It cited Defence of India Rules Rule 75‑A, which provides that if, in the opinion of the Central Government or the Provincial Government, it is necessary or expedient to secure the defence of British India, public safety, maintenance of public order, efficient prosecution of the war, or the supply of essential services, the Government may, by written order, requisition any movable or immovable property and may issue further orders deemed necessary in connection with the requisition. The rule further states that where the Government has requisitioned property, it may use or deal with that property as it sees fit and may acquire it by serving notice on the owner, or where the owner cannot be readily traced or ownership is disputed, by publishing a notice in the official Gazette indicating the Government’s decision to acquire the property pursuant to the rule. The Court also referred to Section 24 of the Requisitioning and Acquisition of Immovable Property Act, 1952, which deals with the continuance of requisitioned land.

The rule provides that when, in the opinion of the Central Government or a Provincial Government, it is necessary or expedient for public safety, the maintenance of public order, the efficient prosecution of war, or for maintaining supplies and services essential to community life, the Government may, by a written order, requisition any property, whether movable or immovable. The Government may also issue any further orders it considers necessary or expedient in connection with such requisition.

Sub‑rule (2) states that when the Central Government or a Provincial Government has requisitioned any property under sub‑rule (1), that Government may use or deal with the property in any manner it deems expedient. The Government may also acquire the property by serving a notice on the owner. If the owner cannot be readily traced or the ownership is disputed, the Government may acquire the property by publishing a notice in the official Gazette indicating that the Central or Provincial Government, as appropriate, has decided to acquire the property pursuant to this rule.

The Requisitioning and Acquisitioning of Immovable Property Act, 1952 (XXX of 1952) contains provisions that affect earlier legislation. Section 24(1) declares that the Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947), the Delhi Premises (Requisition and Eviction) Act, 1947 (XLIX of 1947), and the Requisitioning and Acquisitioning of Immovable Property Ordinance, 1952 (III of 1952) are repealed. Section 24(2) further clarifies that, for the removal of doubts, any property that was, immediately before the repeal, subject to requisition under any of the said Acts or the Ordinance shall, on the commencement of the 1952 Act, be deemed to be property requisitioned under section 3 of the 1952 Act, and all the provisions of that Act shall thereafter apply to such property.

Section 3(1) provides that where a competent authority is of the opinion that any property is needed or likely to be needed for a public purpose of the Union and that the property should be requisitioned, the authority shall, by a written notice, call upon the owner or any other person in possession of the property to show cause why the property should not be requisitioned. The notice must specify the purpose of the requisition and must give the recipient fifteen days from the date of service to answer.

Section 6(1) empowers the Central Government to release from requisition any property that was requisitioned under the Act at any time. The Government must, as far as possible, 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 is qualified by a proviso: if the purpose for which the requisitioned property was being used no longer exists, the Central Government shall, unless the property has been acquired under section 7, release the property from requisition as soon as practicable.

The Defence of India Rules, which were originally issued under the Defence of India Ordinance, 1939 and later continued by the Defence of India Act, 1939, contain the foregoing requisition powers. Although the original Ordinance was repealed, the Rules were kept in force by virtue of section 21 of the Act, thereby preserving the statutory framework for requisition as discussed above.

The provisions of section 21 of the Act kept the Defence of India Rules in force. Rule 75‑A of those Rules provided that the authority to requisition any property was limited to the specific purposes for which such requisition could be made, although the decision as to whether requisition was necessary or expedient was left to the Government’s own judgment. Once a property had been requisitioned, the Central Government was empowered to manage or otherwise deal with the property in any way that it considered expedient. In this context, the term “expedient” was to be understood only in relation to the purposes for which the property had originally been requisitioned. The broad meaning of the word “expedient” in Sub‑section (2) could not be extended beyond the purposes identified in Sub‑section (1), because doing so would imply that the Legislature intended to give the Government a power to requisition property on false pretenses.

Act 17 of 1947 was enacted to ensure that certain emergency powers relating to land would continue after the Defence of India Act expired, particularly for land that had been requisitioned under the Rules made under that Act. “Requisitioned land” was defined as immovable property that, at the commencement of the 1947 Act, was already subject to a requisition made under the Rules. Section 3 of the 1947 Act provided that, notwithstanding the expiry of the Defence of India Act and the Rules made thereunder, such requisitioned land would remain subject to requisition until the later expiry of the 1947 Act, and it authorised the appropriate Government to “use or deal with any requisitioned land in such manner as may appear to it to be expedient”. The purpose of the 1947 Act was solely to extend the existence of the existing requisition after the Defence of India Act lapsed; it was not intended to broaden the Government’s powers concerning the requisitioned land. The land that had been requisitioned under the earlier Ordinance therefore continued to be subject to that requisition. The use of the word “continue” indicated that the section’s effect was merely to grant an additional period of life to the existing order, which would otherwise have terminated. The language permitting the Government “to use or deal with any requisitioned land in such manner as may appear to it to be expedient” merely echoed the authority already conferred by Rule 75‑A(2) of the Rules, and consequently the scope of authority under section 3 of the 1947 Act was to be understood in the same limited sense as that provided in Rule 75‑A(2). Section 24(1) of the 1952 Act repealed the 1947 Act, and subsection (2) of the same provision stipulated that, on the commencement of the 1952 Act, properties that had been subject to requisition under the earlier Act would be deemed to be property requisitioned under section 3 of the 1952 Act, with all the provisions of the new Act applying accordingly. Relying on this deeming clause, the contention was advanced that…

The Court observed that the argument put forward by the appellants—that the requisition of the land and its subsequent use by the Government under the 1947 Act should be treated as a requisition made under section 3 of the 1952 Act for a public purpose, namely a purpose of the Union, and that because the purpose of using the premises for the Triveni Kala Sangam had not ceased, the appellants could not be compelled to relinquish the property under section 6 of the 1952 Act—was not sustainable. The Court explained that the “fiction” created by section 24(2) of the 1952 Act operated only upon requisitions that had already been made; it could not validate any act of the Government that was illegal. Consequently, the Court needed to determine the legal effect of the earlier requisition effected both under Rule 75‑A of the Rules and under the 1947 Act.

The Court held that if the original requisition had been made for the purposes specified in Rule 75 of the Rules and had thereafter continued under section 3 of the 1947 Act solely for those purposes, then, by virtue of section 3 of the 1952 Act, such requisition would be deemed to be a requisition for a public purpose, that public purpose being a purpose of the Union. However, the Court stressed that the validity of the requisition could not be assessed on the basis of the provisions of the 1952 Act alone; instead, the validity must be judged according to the statutes that were in force at the time the requisition was made, namely the Rules and the 1947 Act. Accordingly, a requisition made for public purposes under Rule 75‑A of the Rules would, under the 1952 Act, be treated as a requisition under section 3, and all the provisions of that Act would then apply.

The Court rejected the contention that a requisition made under the Rules need not be for a public purpose. It pointed out that Rule 75‑A expressly limits requisition to four specified public purposes, thereby negating any broader interpretation. Although Rule 75‑A does not require a notice stating the purpose, the Court held that the requisition could have been made only for those four purposes enumerated in the Rule. The Court further noted that the requisition had continued under the 1947 Act only for those purposes, and therefore those purposes must be deemed to be the purposes mentioned in Rule 75‑A.

Even if section 5 of the 1952 Act were excluded on the ground that no notice had been issued under Rule 75‑A, the Court explained that the proviso to section 6 would then become applicable. That proviso provides that when the purposes for which a requisitioned property is being used cease to exist, the Central Government shall, as soon as possible, release the property from requisition. In the present case, 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 only to house the Triveni Kala Sangam, a purpose that the Court held was not among the four public purposes listed in Rule 75‑A. Accordingly, the Court concluded that the original purpose for which the property had been requisitioned had ceased to exist.

The Court observed that the original purpose for which the property had been requisitioned no longer existed, and consequently the respondents had acquired a right to be placed in possession of the property under the proviso to section 6 of the Act. Nevertheless, the learned Attorney‑General put forward the contention that the present use of the building for the Triveni Kala Sangam constituted a public purpose within the meaning of section 3 of the Act, and that, on that basis, the respondents could not invoke the de‑requisition provision contained in the proviso to section 6. The Attorney‑General argued that any purpose of the Union automatically qualified as a public purpose. The argument was further developed by stating that, under the Constitution, Parliament possessed the power to legislate on any matter enumerated in List I of the Seventh Schedule and also on any matter listed in List III. Moreover, Article 73 was cited as conferring upon the executive of the Union the authority to act in respect of those matters. Accordingly, it was asserted that a requisition of property made for any purpose connected with the matters in those lists, irrespective of whether a specific law had been enacted, should be treated as a requisition for a public purpose, that is, a purpose of the Union within the meaning of section 3 of the 1952 Act. In support of this line of reasoning, reliance was placed upon the decision of this Court in The State of Bombay v. Ali Gulshan. The cited case, reported in the second series of the Supreme Court Reports, had held that a requisition made under the Rules could be treated as a requisition for a public purpose only when the statutory criteria were satisfied.

The Court identified a fundamental flaw in the foregoing argument. It explained that the legal fiction that a requisition made under rule 75‑A of the Rules is automatically deemed to be a requisition under section 3 of the 1952 Act operates only when the requisition was made for one of the purposes enumerated in rule 75‑A. The critical test, therefore, was not whether the building, at the time the Act came into force, was being used for a purpose that could be described as a public purpose or a purpose of the Union, but whether the original requisition had been effected for a purpose listed in rule 74‑A of the Rules. The Court further observed that if the purpose specified in rule 74‑A ceased to exist, the proviso to section 6 of the 1952 Act imposed a mandatory duty on the Government to release the requisitioned property. As the flat in the present case was being used for a purpose—namely the Triveni Kala Sangam—that was different from the purpose for which it had originally been requisitioned, the respondents were thereby entitled to be placed in possession of the property under the statutory provision.

On the basis of the foregoing analysis, the Court declined to express any opinion on the merit of the Attorney‑General’s contention that relied on the earlier decision of this Court. The Court concluded that the appeal was without merit and therefore dismissed it. The order regarding costs was left to be determined in accordance with the earlier order dated 11‑8‑61, which provided that each party would bear its own costs unless the Court otherwise directed. Consequently, the appeal was dismissed and the respondents were permitted to remain in possession of the flat.