K.B. Asthana, J.
1. The petitioner before me is Messrs. Jhansi Electric Supply Co. Ltd. which is a public Limited Company incorporated under the Indian Companies Act. Its registered office is situated at 359. Civil Lines, Jhansi. The said Company ran an Electric Supply Undertaking in the town of Gorakhpur under a licence granted by the Government of U.P. for supply of electricity to the consumers in the town. In that connection it has its offices in Gorakhpur and one of the premises which the said Company had taken on rent was Nawal Kishore Buildings situate at Mohalla Purdilpur and bplonginf1 to one Smt. Sudha Agrawal.
With effect from 1st November 1963 the licence of the said company for supply of electricity in Gorakhpur stood revoked and the Undertaking was taken over by the U.P. Electricity Board Thereupon a skeleton office was kept by the said company at Gorakhpur for completing the formalities in connection with the handing over of the assets and for realisation of its dues from the consumers which run into several thousands The said company had kept a small office in the rented building in Purdilpur in which were kept its books, registers and some furniture One or two rooms in the rented premises were also kept reserved by the said company for lodging its officers who came to Gorakhpur in connection with the companies' business. Those rooms contained the necessary furniture, utensils and other paraphernalia for cooking of food etc. The rentrd premises were looked after by a Chaukidar on behalf of the Company.
The District Magistrate, as the affidavit of the petitioner shows, had full knowledge of the address of the Head Office of the Company at Jhansi. It appears that on the 5th of June 1965 the District Magistrate of Gorakhpur passed an order in exercise of his powers under Section 29 of the Defence of India Act 1962 requisitioning the abovesaid rented premises in Purdilpur, professedly for maintaining services essential to the life of the community. It was ordered that possession of the said premises be delivered to Sri K.P. Misra, Assistant Commandant of P.A.C. Gorakhpur, by Messrs. Jhansi Electric Supply Company Ltd. who was the occupant latest by 10 a.m. on June 6, 1965. It was further ordered that the copy of the order was to be affixed prominently on the premises requisitioned.
This notice of the District Magistrate was addressed to the Jhansi Electric Supply Company Ltd. at house No. 107, Mohalla Purdilpur, Gorakhpur, and not to the Head Office of the Company at Jhansi, though the District Magistrate had full knowledge of the Jhansi address of the Company. It is not even known on whom was this notice actually served and at what time. It is, however, stated in a supplementary affidavit on behalf of the petitioner that a copy of this notice was found posted at the requisitioned premises. It is also stated that a copy of the said notice was served upon Smt Sudha Agrawal, the landlady
In the forenoon on the 6th of June 1965, which was a Sunday. Sri K.P Misra alone with P.A.C constables riding in a truck reached the requisitioned premises threw away the registers, books and other goods belonging to the petitioner on the open road and then forcibly occupied the requisitioned premises The servant of the petitioner stationed at Gorakhpur telegraphically informed the Head Office at Jhansi The representative of the petitioner then met the District Magistrate on the 8th of June 1965 and protested at the action taken in dispossessing the petitioner in such a highhanded manner The District Magistrate, however, did not redress the grievance of the petitioner.
2. All the facts narrated above are based on the affidavit and the supplementary affidavit of the petitioner. Despite the copies of the petition, the affidavit and the supplementary affidavit having been served on the Standing Counsel as early as July 1965, no counter-affidavits have been filed on behelf of the respondents who are the District Magistrate, Gorakhpur, the State of U.P. and the Union of India. To me it appears that the third respondent. Union of India, was not a necessary party as no relief is being sought against it and none of its officers were accommodated in the requisitioned premises. It is apparent that Union of India is not interested in the case as no appearance has been put on its behalf. However, on behalf of the first and second respondents though the learned Junior Standing Counsel has appeared to oppose the petition but no counter-affidavit has been filed establishing thereby that the facts which have been stated in the affidavit and supplementary affidavit by the petitioner cannot be controverted.
At the commencement of hearing thelearned Junior Standing Counsel prayed foradjournment of the hearing of the petitionto enable him to take instructions and fileaffidavits. I gave due consideration to theprayer made. I enquired from the learnedJunior Standing Counsel as to why instructions had not been given to him to file acounter-affidavit so far. The reply whichthe learned Junior Standing Counsel gave wasthat as early as December 1965 instructionswere received to file a counter-affidavit butsince then no local official turned up forswearing a counter-affidavit and no counter-affidavit sworn by any official at Gorakhpur was sent. This petition itself wasshown in the next to be heard list a longtime back and' was also on the Daily CauseList for a number of days before it couldbe reached yesterday. In these circumstancesI think the prayer of the learned JuniorStanding Counsel for adjournment of hearths is not reasonable.
There is one more circumstance which places the respondents in a difficult position. This writ petition was expedited on the orders of the learned Chief Justice. Under the Rules of this Court the order for expedited hearing is passed after hearing the respondents. It was at that stage that the respondents should have been warned that the case would come up for hearing soon and the counter-affidavit, if any should be filed. All this shows that the Standing Counsel and through his office the local authorities were all the time aware that the petition is to be heard. They also knew what were the allegations in the petition. Not filing of a counter-affidavit or controverting the facts alleged by the petitioner despite all this knowledge and warning, leads to only one conclusion alone and that is that the first and second respondents cannot possibly controvert any allegation of fact made on behalf of the petitioner in support of the petition
3. On the facts contained in the affidavit and the supplementary affidavit I cannot help but observing that this is a case, fortunately such cases are a rare phenomenon, which is a typical example how sometimes the authorities that be, make an unreasonable and arbitrary use of the immense powers vested in them by laws and that not so much in promoting public interest which is the object of that law but to oblige their colleagues in service in providing some convenience, in the present case for providing accommodation to Sri K.P. Misra, Assistant Commandant, P.A.C. Gorakhpur Tt is so obvious that in stating in the order of requisition that the order was being made for maintaining the services essential to the life of the community, the District Magistrate was just trying to pretend and nothing more. It is such cases which create serious doubts whether the executive authorities can be trusted with such drastic powers by the Legislature. The more drastic the power vested in an authority the more it is expected to be discreet and circumspect in the use of it. The Legislature vests such powers in the executive authorities for being exercised in the general public interest and not for making use of it for achieving small ends. Apart from undermining the confidence of the general public in the administrative efficiency and efficacy such arbitrary and ill-thought action also tends to bring into ridicule the rule of law on which the whole of our constitutional edifice stands.
4. The District Magistrate concerned had ample powers under other laws which could more properly be made use of for the purpose of providing accommodation to the Assistant Commandant of the P.A.C. It is not the case that in Gorakhpur at the relevant time some such circumstances had come into being that but for requisitioning the house in dispute and providing accommodation to Sri K.P. Misra, Assistant Commandant, it would not have been possible to maintain services essential to the life of the community.
An argument was made by the learned Junior Standing Counsel that if the District Magistrate who was appropriate authority under Section 29 of the Defence of India Act 1962, thought that requisitioning the house in question was necessary in order to maintain services essential to the life of the community then his opinion in that respect would be final and the same could not be legally questioned before a court of law. Section 29 in its terms authorises the Central Government and the State Government to form an opinion. The powers for requisitioning can no doubt be delegated under Section 40 of the Act but I doubt if the power to form opinion can be delegated. The act of requisitioning takes place after an opinion has been formed. However. I do not want to further dilate upon this question as in my opinion it is not necessary for the purpose of deciding this writ petition to express any definite opinion whether the District Magistrate was competent to form an opinion
Since the petitioner has attacked the impugned order on the ground that it was passed in mala fide exercise of power it is in that context that I consider the fact of providing a house to Sri K.P. Misra, the Assistant Commandant of P.A.C.. to be far and remote from what the District Magistrate regards as the need for requisitioning that is for maintaining services essential to the life of the community it was submitted by the learned Junior Standing Counsel that Sri K.P. Misra being a member of the Force whose avowed object is to protect the life and property of the citizen, to provide a house for residence of an Officer commanding that force would be a purpose connected with maintaining services essential to the life of the community. On the other hand, Sri Jagdish Swarup, learned counsel appearing for the petitioner, submitted that the phrase, maintaining services essential to the life of the community does not imply provision for any individual person howsoever important position he may be holding in Police Force. According to the learned counsel what the phrase connotes is requisitioning some accommodation for the purpose of opening any centre for essential services, depot for keeping implements for any such services, a superintending office and the like. Again it is a matter on which I would not like to carry on further discussion in my judgment, since I consider that it is not necessary for my present purpose. I have already observed that the action of the District Magistrate does appear to be ill thought and high handed
5. That the impugned action of the District Magistrate was taken with great hurry and without affording even the slightest opportunity to the petitioner who was occupying the premises requisitioned, will also appear to be beyond doubt from the circumstance that the District Magistrate did not follow the procedure laid down by the law and seems to have put up a facade that he followed the due procedure.
The District Magistrate knew that the Head Office of the petitioner was at Jhansi. He also knew that it was the petitioner who was in possession of the requisitioned premises as a tenant. It is clear that the order passed under Section 29 of the Act was addressed to the petitioner. Now it would be seen that Rule 16 of the Defence of India (Requisitioning and Acquisition of Immoveable Property) Rules 1962 enjoins that every notice or order issued or made under Chapter 6 of the Act shall, in the case of any notice or order, affecting an individual, corporation or firm be served in the manner provided for the service of summons in Rule 2 of Order 29 or Rule 3 of Order 30 as the case may be in the first Schedule of the Code of Civil Procedure 1908. The petitioner is a corporation According to Rule 2 of Order 29 of the C.P. Code the service could have been effected on the petitioner either by sending the notice or order to its Secretary or any Director or other principal officer or by sending it by post addressed to the petitioner at its registered office. It cannot be disputed that the petitioner has its registered office at Jhansi and its address was available to the District Magistrate The notice or the order under Section 29 of the Act was not served upon any principal officer or the Secretary or any Director of the petitioner. It was not sent to its registered office at Jhansi. The District Magistrate contented himself by having it affixed at the local address of the petitioner in the requisitioned premises itself. There thus has been non-compliance with Rule 16.
Sub-section (2) of Section 29 lays down that the requisitioning shall be effected by an order in writing addressed to the person deemed to be the owner or person in possession of the property and such an order shall be served in the prescribed manner on the person to whom it is addressed. It follows therefrom that before the requisition can be effective the order in writing addressed to the person deemed to be the owner or person in possession of the property must be served and the service must be carried out in the prescribed manner. To give legal effect to the requisition the conditions laid down in Sub-section (2) of Section 29 must be fulfilled. I have already found above that the order of requisition was not served upon the petitioner in the prescribed manner, that is. In accordance with Rule 16.
The learned Junior Standing Counsel pointed out to the provisions of Clause (2) of Rule 141 and submitted that a failure to comply with the strict rules of service prescribed would not affect the validity of the order. I do not think the provisions of Clause (2) of Rule 141 relied upon, confer an absolute immunity on an order of requisition though not properly served as it can legally be effective only when it has been served in the prescribed manner. Even if it be assumed that the implication of Clause (2) of Rule 141 extend to that limit, I have no hesitation in holding that Clause (2) of Rule 141 will then be ultra vires of the provisions of Section 29 of the Act. Further it is Rule 16 which is the special rule for service of notice or orders made under Chapter 6 of the Act and there is no such exception or saving in that rule. I am, therefore, unable to agree with the submission of the learned Junior Standing Counsel that the failure to serve the requisition order in the manner laid down under Order 29 Rule 2, C. P. Code does not invalidate the requisition order.
6. it was then contended by the learned Junior Standing Counsel that the provisions of Section 29 of the Act were complied with inasmuch as the requisition order was served upon Smt. Sudha Agrawal, the owner of the requisitioned premises and therefore it would be legally effective, I have some difficulty in accepting this line of argument. What the provisions of Section 29 intend is that the person whose interests are going to be affected, that is, who will immediately be asked to deliver possession, has to be served. The phrase in Sub-section (2) of Section 29 'the owner or person in possession of the property' ought to be construed as indicating the person who is in actual occupation of the premises to be requisitioned. If what the learned Junior Standing Counsel contends is permissible then the purpose of serving a notice or order of requisition would be frustrated. Then in every case a District Magistrate can serve a landlord who might be living in some other town and turn out the tenant who is the actual occupant without even giving him an inkling what he intended to do.
Moreover, it should be borne in mind that it is an important ingredient of the notice of requisition itself which calls upon the notices to deliver possession within a certain time. How can an owner of a house who is not in actual possession but who has let his house on rent to a tenant deliver vacant possession? It is the tenant in such a case who is actually the occupant who is in a position to deliver possession. It is, therefore, futile to argue that a notice of requisition served upon the landlord who is not actually the occupant is sufficient to give validity to the order of requisition. In the instant case it is not even established that any notice of requisition was addressed to Smt Sudha Agrawal, the owner of the premises. What is established on the record is that a copy of the notice or the order addressed to the petitioner was sent to Shrimati Sudha Agrawal. Thus the argument advanced by the learned Junior Standing Counsel has no factual foundation. The District Magistrate having failed to comply with the condition precedent laid down under Section 29 of the Act the requisition order cannot, in law be said to have taken effect.
7. No doubt under Section 33 of the Act there is power vesting in the requisitioning authority to evict any person remaining in possession in contravention of any order made under Section 29. but there is nothing on record before me to show that Sri K.P. Misra, the Assistant Commandant of the P.A.C., was authorised under the provisions of the Act or the rules, to take the law in his own hands, reach the spot and throw out the books, the registers, the furniture and other goods of the petitioner. Sri Misra seemed to be in unseemly hurry and the District Magistrate seemed to be a party to all this which is obvious from the circumstance that the order of requisition was drawn up on the 5th and the petitioner which is a corporation having its Head Office about more than three-hundred miles away from Gorakhpur was asked to deliver possession within a few hours, that is, in the forenoon of the next day which was a Sunday it is common knowledge that the offices of the companies also remain closed on Sundays Why such a day was chosen when there would have been obvious difficulties as no officer would be available at the spot except the Chaukidar or the Darban? This again demonstrates the unholy hurry with which the whole scheme was conceived and put into action.
8. At the end the learned Junior Standing Counsel raised certain arguments which were no better than arguments of despair based merely on certain technicalities. It was urged that the petition was bad as Smt. Sudha Agrawal, the owner of the requisitioned premises, and Sri K.P. Misra who is its occupant had not been impleaded, they being necessary parties. I do not understand the import in this context of the words 'necessary parties'. No relief is being sought against Smt. Sudha Agrawal by the petitioner. No rights of Smt. Sudha Agrawal are being affected. In not impleading her the petitioner has been rightly advised. In so far as Sri K.P. Misra is concerned, he has no legal status of his own in the matter. He is in the premises having been put up by the District Magistrate therein. He does not acquire any legal character of being a tenant or having any other legal relationship with the petitioner or with the landlady of the premises. He is a mere creature of the District Magistrate who is a party to the petition. A direction to the District Magistrate by this Court under Article 226 to hand-over vacant possession to the petitioner of the premises in question would be sufficient to afford relief to the petitioner. It would be the duty of the District Magistrate to see that Sri K.P. Misra who is his creature vacates the premises on his asking. As observed above Sri K.P. Misra has no independent status of his own in regard to the right of possession of the house in question.
9. For the reasons given above, I allow this petition. I quash the impugned order dated 5-6-1965 passed by the District Magistrate of Gorakhpur requisitioning the premises tenanted by the petitioner. I further direct that the respondents shall hand over vacant possession of the premises in question to the accredited representative of the petitioner forthwith. The petitioner would be entitled to his costs of this petition.