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Bansidhar Vs. District Magistrate - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.J.C. No. 71 of 1951
Judge
Reported inAIR1953Ori229; 18(1952)CLT350
ActsOrissa Maintenance of Public Order Act, 1950 - Sections 22; Orissa Maintenance of Public Order Act, 1948 - Sections 13
AppellantBansidhar
RespondentDistrict Magistrate
Appellant AdvocateP.C. Chatterjee, Adv.
Respondent AdvocateAdv. General
DispositionApplication dismissed
Cases ReferredProvince of Bombay v. Khushaldas S. Advani
Excerpt:
.....services & supplies essential to the life of the community, fall entirely within the scope of the opinion of the provincial government, and it is the opinion 'bona fide' entertained -which is the foundation for the exercise of the power. 7. as regards the further argument that the requisition order is bad, unless the specific purpose for which it is made is stated in terms, on the face of the order itself, the view in this behalf taken by the bombay high court in -air 1951 bom 404(a), was consequential upon their view of the particular provision which they had to consider, viz. but i feel bound to state that, the absence of any such specification of the purpose on the face of the order is an element that may well be one of the circumstances, which taken with other evidence or..........22(1), orissa maintenance of public order act 1950 which runs as follows:'if in the opinion of the state government, it is necessary or expedient so to do for securing the interests of the general public or for securing services and supplies essential to the life of the community, it may by order in writing requisition any property, moveable or immoveable, and may make such further orders as appear to it to be necessary or expedient in connection with such requisitioning.'the contention of the learned counsel for the appellant is that the order in question is bad on the following grounds: (1) the order does not state on the face of it what is the exact purpose for which the house was requisitioned; (2) the house was in fact occupied by the district public relations officer and it cannot.....
Judgment:

Jagannadhadas, C.J.

1. This is an application for the issue of a writ of mandamus against the District Magistrate of Bolangir, directing him to release the petitioner's house from requisition and to deliver possession thereof to the petitioner. The petitioner states in his petition that he had constructed a new house bearing No. 364 in Bolangir for residential purposes of himself and of his family members; but that he had at the time another ancestral house available to him for occupation, and hence let out this house at a rental of Rs. 150/- per month to the Co-operative Department from 15-6-48; that, now, he required the house for his own occupation, since his younger brother who was entitled to a half share in the ancestral house had retired from service and wants to occupy his half share. The petitioner states that by order dated 9-12-49, the District Magistrate of Bolangir purporting to exercise powers under Section 13, Orissa Maintenance of Public Order Act, 4 of 1948, requisitioned his house inspite of his protests and fixed a monthly rental of Rs. 73/-. The District Public Relations Officer, acting on the order of requisition passed by the District Magistrate got delivery directly from the Co-operative Department which was in possession of the house by then. The petitioner has accordingly come up to this Court for relief. The order of requisition that has been challenged is in the following terms:

'WHEREAS I am satisfied that it is necessary for securing services and supplies essential to the life of the community, I, G. C. L. Joneja, District Magistrate, Bolangir-Fatna in exercise of powers under Section 13, Orissa Maintenance of Public Order Act, (Act 4 of 1948) as applied to the Orissa States by notification of the Government of Orissa in the Home Department No. 1500/C dated 10-4-1948, as amended by notification No. 1593/C dated 17-4-1948, hereby order the requisition of the following house:

'House No. 364 having on the East the main road leading to Sambalpur, on the west Karangakata and on the north a garden of Sri Nilakantha Patnaik, belonging to Sri Banshi-dhar Chopdar, son of Bhagirathi Chopdar, Radharani Para of Bolangir town.' 2. Sri Banshidhar Chopdar, the owner of the house shall furnish to me on 21-12-1949, at 10-30 A.M. in my Court all information in his possession regarding the value of the house with a view to arrive at a conclusion regarding the amount of compensation to be fixed under Section 14 of the said Act.

Given under my hand and the seal of the Court this the 9th day of December, 1949.

Sd. Illegible, District Magistrate,

Bolangir-Patna.'

This order has been passed admittedly under 8. 13, Orissa Maintenance of Public Order Act of 1948, read with Section 18 thereof which authorises a delegation by the Provincial Government of its power in this behalf to the District Magistrate. That Act had been extended to the Orissa States by notification of the Government of Orissa in the Home Department No. 1500/C dated 10th April, as amended by notification No. 1593/C dated 17-4-1948. The Orissa Maintenance of Public Order Act, 4 of 1948, has itself been repealed by the Orissa Maintenance of Public Order Act, 10 of 1950, and Section 15 thereof is word for word the same as Section 13 of the 1948 Act. By Section 29 of the Act, 10 of 1950, orders made under the 1948 Act and in force immediately before the date of the commencement of the Act, continue in force and are deemed to be made or done under the corresponding provisions of 1950 Act. The order of the District Magistrate dated 9-12-49, may, therefore, be deemed to have been made under Section 15 of Act, 10 of 1950, and to be continuing in force on that footing. Section 15 of Act 10 of 1950, has been slightly amended by Section 9 of Orissa Act 13 of 1950, by substituting for the words 'securing the public safety or the maintenance of the public order' in Sub-section (1) of the said Section 15, the words 'securing the interests of the general public'. By a further amending Act, Orissa Act 21 of 1951, certain new sections have been added and Section 15 of the Act of 1950 has been renumbered as Section 22. The validity of the order of requisition passed by the District Magistrate of Bolangir dated 9-12-49 which is challenged on this application has thus to be determined with reference to the terms of Section 22(1), Orissa Maintenance of Public Order Act 1950 which runs as follows:

'If in the opinion of the State Government, it is necessary or expedient so to do for securing the interests of the general public or for securing services and supplies essential to the life of the community, it may by order in writing requisition any property, moveable or immoveable, and may make such further orders as appear to it to be necessary or expedient in connection with such requisitioning.'

The contention of the learned counsel for the appellant is that the order in question is bad on the following grounds: (1) the order does not state on the face of it what is the exact purpose for which the house was requisitioned; (2) the house was in fact occupied by the District Public Relations Officer and it cannot be said that such occupation was necessary for 'securing services and supplies essential to the life of the community'. (3) The order was 'mala fide' and was intended to deprive him of the benefit of the higher rent that he was previously getting.

2. I may state at once that in this case there, is no material at all placed before us to show, apart from the mere fact that the previous rent which the petitioner appears to have been getting, was Rs. 150/- and the rent fixed by the Government was Rs. 73/- p.m. that the requisition order was in fact 'mala fide'. That contention may, therefore, be dismissed out of consideration. The first two contentions raise the following Questions: (1) Whether the issue about the necessity for requisitioning of the house for 'securing services and supplies essential to the life of the community' is one that is subject to the review of the Court : (2) whether a statement on the face of the requisition order showing the exact purpose for which the requisition was required, is essential for the validity of the order.

3. On both these points learned counsel for the appellant cites a case in -- State of Bombay v. Mohanlal Kapur', AIR 1951 Bom 404 (A). In that case the learned Judges of the Bombay High Court have laid down as follows:

'The very foundation of the power of the State to requisition premises is the existence of a purpose of the State or any other public purpose. Whether a particular purpose is a purpose of the State or any other public purpose is a justifiable issue. It is also clear that before an order of requisition can be made, the requisitioning authority must have determined for itself what the purpose of the State or other public purpose is for which the requisition order is being made. It is not open to the requisitioningauthority to make up its mind as to why it wants to requisition the premises or what use it wants to put those premises after the requisition is made. The condition precedent and the foundation of the exercise of the power must be present in the mind of the requisitioning authority before it issues the order by which it takes away the property of the subject.'

It has also been further laid down in that case that

'it is not enough that the requisitioning authority merely states in its order that the property is being requisitioned for the purpose of the State or for any other public purpose; but it is necessary to indicate in the order itself, the specific purpose of the State or other public purpose, for which the requisition is made.'

Learned counsel relies strongly upon this decision. On the other side our attention has been drawn to a case in --'Sudhindra Nath v. Sailendra Nath', AIR 1952 Cal 65 (B), in which the Calcutta High Court has held that the question as to whether the purpose for which a house was requisitioned was a public purpose, could not be canvassed in Court, if the requisitioning authority thought it to be a public purpose. The learned Judges of the Calcutta High Court refused to follow the Bombay High Court in this regard.

4. The question, however, in such cases, has to be determined with reference to the specific wording of the relevant statutory provision. The case in AIR 1951 Bom 404(A), is one that arose under the Bombay Land Requisition Act, Act 33 of 1948, as amended in 1950. The relevant provision of that Act which is Section 6(4) as appears from the quotation in that judgment may be taken to be as follows :

'The State Government may by order in writing, requisition the premises for the purposeof the State or any other public purpose and may use or deal with the premises for any such purpose in such manner as it may appear to it to be expedient.'

On the wording of this section, the foundation of the power to requisition is the existence, as a fact, of the State purpose or the public purpose and not the existence of a mere 'bona fide' opinion of a specified authority about the existence of such purpose. The Bombay decision, therefore, is quite intelligible on that footing. But the corresponding provision of the Orissa Act is differently worded. Under Section 20 Of the Orissa Act, 10 of 1950, what is provided is that

'if in the opinion of the State Government it is necessary or expedient so to do for securing services and supplies essential to the life of the community, it may by order in writing requisition any property, moveable or immoveable.'

In this respect, the Orissa provision is more in consonance with the provisions of the Bengal Act noticed in --'AIR 1952 Cal 65 (B), which runs as follows :

'Whenever it appears to the Provincial Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing, requisition such premises.'

In statutory provisions worded as in the Orissa Act or in the Bengal Act, the foundation of the power is the 'satisfaction' or the 'opinion' of the concerned authority and therefore the actual facts on the basis of which the satisfaction or the opinion of the authority are based, are not open to examination by Court except to the limited extent of making out 'mala fides' or abuse of power of the authority concerned.

5. In construing provisions of this kind, the decision of the Supreme Court in --'Province of Bombay v. Khushaldas S. Advani', AIR 1950 S. C. 222(C), is of great assistance. That case related to the requisition of a premises under the Bombay Land Requisition Ordinance, 5 of 1947. The relevant provision therein is in the following terms :

'If in the opinion of the Provincial Government, it is necessary or expedient to do so, the Provincial Government by order in writing requisition any land for any public purpose.'

In construing that provision, their Lordships pointed out that two questions arose : (1) the necessity for requisition; (2) the requisition being for public purposes, and posed the problem whether either or both could be challenged in a Court of law. It was clear from the wording that so far as the necessity for requisition is concerned, the power depended merely on the opinion of the authority concerned as to the necessity and, therefore, it was not questionable by civil Court. So far however, as the requirement of public purpose is concerned, there was room for argument having regard to the wording.

His Lordship Kania C. J. pointed out in the following passage of his judgment at p. 222, that three alternative views are possible :

'The subjective opinion of the Provincial Government in respect of the order of requisition is not open to challenge. The Ordinance has left that decision to the discretion of the Provincial Government and that opinion cannot be revised by another authority. It appears, therefore, that except when 'mala fides' are clearly proved that opinion cannot be questioned. The next question is whether the requirement 'for any public purpose' stands on the same footing. On behalf of the appellant, it was argued that the opinion of the Government, that it is necessary or expedient to pass an order of requisition, stands on the same footing as its decision on the public purpose. In the alternative it was argued that the two facts, viz., necessity to requisition and decision about public purpose, form one composite opinion and the composite opinion is the subjective opinion, of the Provincial Government. The third alternative contention was that the decision of the Government about a public purpose is a fact which it has to ascertain or decide, and thereafter the order of requisition has to follow.'

His Lordship ultimately upheld that the third alternative was the correct construction of the particular provision in the Bombay Ordinance which they were dealing with in that case, having regard to the juxtaposition of the variousphrases therein. That was also the view taken by all the other learned Judges of the Court excepting his Lordship Das, J. who was inclined to accept the second alternative above indicated in the judgment of the learned Chief Justice, i.e., the opinion of the Government was meant to be a composite opinion relating to both the necessity for requisitioning and the public purpose.

The case, therefore, in --'AIR 1950 S. C. 222(C) shows that a statutory provision may be so worded to make the opinion of the authorityconcerned final only as regards the expediency of requisitioning and not as to whether the purpose of requisitioning falls within the permittedcategory. It is with reference to the possibility of this distinction that the relevant statutory provision in this case has to be interpreted. Now looking at the provision in Section 20, Orissa Maintenance of Public Order Act, 13 of 1950, it is to be observed that the juxtaposition of the words and phrases in this section is markedly different from what is found in the Bombay Ordinance, which was the subject-matter of consideration in the Supreme Court case. Here the section says:

'If in the opinion of the State Government, it is necessary or expedient so to do for securing services and supplies essential to the life of the community, it may by order in writing requisition any property etc.'

It appears to me to be reasonably clear that the opinion of the State Government referred to in this section refers to the composite fact, viz., the necessity to requisition a particular property and that too for 'securing services and supplies essential to the life of the community'. It would, therefore, follow that both the necessity or expediency for requisitioning as well as the requisitioning having to be for securing services & supplies essential to the life of the community, fall entirely within the scope of the opinion of the Provincial Government, and it is the opinion 'bona fide' entertained -- which is the foundation for the exercise of the power. Consequently, in my opinion, neither the one, nor the other can be challenged before the Court. In this view, therefore, the order of the District Magistrate requisitioning the petitioner's house is not open to challenge by any attempt to show that it was not in fact required for any purpose connected with the securing of services and supplies essential to the life of the community.

6. In the present case, there is in fact no evidence to show for what exact purpose the order for requisition of the house was made. The order itself does not on its face state the purpose. All that appears is from the affidavit of the petitioner that the house was in fact later on occupied by the Public Relations Officer. There has been some attempt made before us to argue that the occupation of the house by the Public Relations Officer, cannot, in any view, be held to be essential, to the life of the community. To controvert this suggestion, the learned Advocate-General, has produced before us a printed copy of the 'Rules of Business' of the Government of Orissa, which shows that the 'Public Relations' comprises : (1) Publicity and propaganda: (2) Broadcasting, (3) Translation, (4) Relation of the supply of Government publications to Government officers except the I. L. R. series. It was contended that the Public Relations Department wait an essential department of the Government. It is, however, unnecessary to go into the question, because, as already stated, that question cannot be gone into by the Court.

7. As regards the further argument that the requisition order is bad, unless the specific purpose for which it is made is stated in terms, on the face of the order itself, the view in this behalf taken by the Bombay High Court in --'AIR 1951 Bom 404(A), was consequential upon their view of the particular provision which they had to consider, viz., that the existence or otherwise of the purpose was justifiable. On that view it would of course follow ' that the purpose had at least to be proved, if not stated, in the present case, however, the opinion of the authority concerned is itself final and not open to challenge except on the ground of 'mala tides'. A further statement of the specific purpose for which the requisition has to be made has not 'in terms been made a condition precedent for the exercise of jurisdiction. It cannot, therefore, be held as a matter of law, that an order which does not in terms state the purpose is illegal. But I feel bound to state that, the absence of any such specification of the purpose on the face of the order is an element that may well be one of the circumstances, which taken with other evidence or circumstances, if any, may be relevant to make out the 'mala fides' of such an order. The power vested by this section in the public authorities interferes with the normal rights of enjoyment of the owner. While it may be, that the opinion of the authority concerned is not open to challenge in the civil Courts, there can be no doubt that that opinion must be a responsible opinion which is arrived at and genuinely held, before the order of requisition is passed. It is an opinion that may be capable of correction by the superior administrative authority. While the person affected may have no remedy in Courts as against the opinion held by the prescribed authority it is only fair that the owner should be specifically informed by the order for what purpose the property has been requisitioned, so that if aggrieved, he may have opportunity to persuade if possible, the higher administrative authorities to give him relief. The Court would, therefore, be inclined to view with close scrutiny, if not with misgiving, the absence oT specification of the purpose in an order of requisition. A mere routine statement that the requisition is required for services essential to the life of the community might easily incline the Court to uphold the contention of 'mala fides' of the order if there are other circumstances indicating it. No such circumstances have been, however, brought to our notice in the present case, as already stated above, and hence the District Magistrate's order cannot be interfered with.

8. In the result, therefore, this application must be dismissed, but without costs.

Narasimham, J.

9. I agree.


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