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Bhopal and ors. Vs. Sub-divisional Officer Ii and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 225 of 1965
Judge
Reported inAIR1973All8
ActsUttar Pradesh Acquisition of Property (Flood Relief) Temporary Powers Act, 1948 - Sections 3; Uttar Pradesh Acquisition of Property (Flood Relief) Temporary Powers Rules - Rule 4
AppellantBhopal and ors.
RespondentSub-divisional Officer Ii and ors.
Appellant AdvocateV.K.S. Chaudhary, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
.....acquisition of property (flood relief) temporary powers act, 1948 - the word 'shall' indicates service of notice as mandatory under rule 4 - held, order for requisition of property ineffective without notice. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot..........in possession. till service of such a notice, the matter remains in the stage of an attempt to requisition. requisition does not, in our opinion, validly take effect without the service of that said notice. in this view, theservice of the notice is integral and necessary part of the process of acquisition.3. the rules framed under this act lead to the same conclusion. rule 4 says that when it is decided to requisition any land or building material under section 3 of the act, the requisitioning authority shall issue a notice in form i to the owner of the land or the building material as the case may be. the use of the word 'shall' in rule 4 clearly indicates that the service of the notice is mandatory. in sr. supdt., r. m. s., cochin v. k. v. gopinath, civil appeal no. 1706 (n) of.....
Judgment:

Satish Chandra, J.

1. On 20th August, 1958, the Sub-Divisional Officer, Bareilly, passed an order, requisitioning 17.2 acres of land in village Karora for rehabilitation of persons affected by flood, under Section 3 of the U. P. Acquisition of Property (Flood Relief) Temporary Powers Act, 1948. The appellants were the owners of the land. They subsequently made a representation against the requisition. That having evoked no response, they instituted a writ petition in this Court. The requisition order was challenged on a variety of grounds. The learned Single Judge accepted the plea raised by the appellants that no notice, as required by Section 3 of the Act, had been issued or served on the appellants. Nonetheless, he held that non-service of the notice will not invalidate the requisition as the appellants had knowledge of the requisition proceedings. The various other points raised in support of the writ petition were also repelled. The writ petition was dismissed.

2. In our opinion, the appeal is entitled to succeed and the order cannot be sustained. Section 3, which authorises the requisition of property, provides:--

'3. The procedure of requisition-- If in the opinion of the Requisitioning Authority it is necessary or expedient so to do for a public purpose, it may, by order, requisition any land or building material by serving on the owner and the person in possession thereof ......... a notice stating thatthe Requisitioning Authority has decided to requisition such land or building material in pursuance of this section ........'

Under this section, requisition can be made by order and by serving the requisite notice on the owner of the property. In our opinion, the process of requisition, which commences with the taking of the decision and the passing of an order, is not completed till the notice mentioned in the section is served on the owner and the person in possession. Till service of such a notice, the matter remains in the stage of an attempt to requisition. Requisition does not, in our opinion, validly take effect without the service of that said notice. In this view, theservice of the notice is integral and necessary part of the process of acquisition.

3. The Rules framed under this Act lead to the same conclusion. Rule 4 says that when it is decided to requisition any land or building material under Section 3 of the Act, the Requisitioning Authority shall issue a notice in Form I to the owner of the land or the building material as the case may be. The use of the word 'shall' in Rule 4 clearly indicates that the service of the notice is mandatory. In Sr. Supdt., R. M. S., Cochin v. K. V. Gopinath, Civil Appeal No. 1706 (N) of 1971, decided on 18-2-1972 = (reported in AIR 1972 SC 1487), the Supreme Court interpreted Rule 5 of the Central Service (Temporary Service) Rules, 1955. The proviso to that Rule stated that the services of any such Government servant may be terminated 'forthwith by payment' to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice. The phrase 'may be terminated forthwith by payment' was construed to imply that the payment was a condition of the termination of service forthwith. It was held that an order of termination can be upheld, if the requisite amount in terms of the rules was paid into the hands of the employee, or made available to him, at the same time as he was served with the order. In the present case, the provision requires that requisition can be made by order and by serving the requisite notice on the owner. The two events are the conditions. Without either of them, there is no effective requisition.

4. The finding of the learned Single Judge that no notice, as required by Section 3, was either issued or served upon the owners, has not been challenged before us. On that finding, the order of requisition was clearly ineffective, and cannot be sustained. Since the appeal is liable to succeed on this point, it is unnecessary to go info the merits of the various other pleas raised by the appellants.

5. In the result, the appeal succeeds and is allowed with costs. The judgment of the learned Single Judge is set aside. The order of requisition dated 20th August, 1958, is quashed.


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