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Ramkumar Liladhar, Firm Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 122 of 1963
Judge
Reported inAIR1967Ori142; 33(1967)CLT1244
ActsDefence of India Rules, 1939 - Rule 75A; Requisitioned Land (Continuance of Powers) Act, 1947 - Sections 3; Requisitioning and Acquisition of Immovable Property Act, 1952 - Sections 3, 3(1), 6(1), 24 and 24(2); Code of Civil Procedure (CPC) , 1908 - Sections 96, 100 and 101
AppellantRamkumar Liladhar, Firm
RespondentState of Orissa and ors.
Appellant AdvocateRanjit Mohanty, ;Dayanidhi Sahu and ;Manmohan Sahu, Advs.
Respondent AdvocateAdv. General and ;S. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredUnion of India v. Ram Kanwar
Excerpt:
.....no cause of action in praesenti. the state government may at any time release from requisition any property requisitioned under this act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force: if the purpose of the requisition would be taken to be only the efficient prosecution of the war, clearly such purpose no longer subsists and the requisitioned property must be released. if the purpose for which the property was requisitioned was for public as well as state purposes under the five categories of the broad purposes, referred to under rule 75a of the rules, the requisition would remain alive under the act. therefore, the question is what..........is released from requisition.3. issue no. 4 was the main issue. it is to the effect 'was the suit property requisitioned by the state government' after discussing the relevant documentary and oral evidence in paragraphs 7 to 22 of the judgment, the learned trial court recorded the following finding:'. . .house including the open space in the front of it including, the suit land was requisitioned.'4. this finding was at first assailed by mr. ranjit mohanty with some seriousness. he, however, ultimately did not assail the finding and accepted it as correct. ex. 2 runs thus:order cuttack district office the 14th october, 1944. no. 2693 res. in exercise of the powers conferred on the central government by sub-rule (1) of rule 75-a of the defence of india rules, and delegated to me by the.....
Judgment:

Misra, J.

1. Plaintiffs case, as narratedin the plaint, is as follows: For providing additional accommodation for the Orissa Government Press and for its smooth running theDistrict Magistrate of Cuttack (defendant 2)requisitioned plaintiff's house, containing fourbig rooms with a verandah and two siderooms standing on a portion of plot No. 12,fully described in schedule A of the plaint, byhis orders (Ex. 3) dated 20-12-43 and (Ex. 2)dated 14 10 44 Since then the SuperintendentOrissa Government Press (defendant 3) is inoccupation of the house on payment of rent atthe rate of Rs 125 per month. The disputedproperty measures 75 ft. in length and 35 ft.in breadth. It was a vacant land lying to thenorth of the requisioned house with severalvaluable fruit-bearing trees standing on it. On29-6-50 defendant 3 got the trees cut downwithout the permission of the plaintiff anddespite protests and made certain constructions. Plaintiff demanded removal of the unauthorised constructions and payment of compensation at the rate of Rs. 175 per month. Asthe Government did not remove the constructions nor paid compensation, the suit is fordeclaration of title, recovery of possessionby removal of the structures and for recoveryof Rs. 6300 as damages and compensation withother reliefs.

2. While admitting that the building had been requisitioned, defendants asserted that the attached premises were also requisitioned. The requisition order (Ex. 2) is continuing even till today by operation of law. Thus the disputed land is claimed to be a part of the requisitioned property. It is admitted that a temporary shed had been constructed on the suit property at the costs of the Government for the purpose of Government Press. Permission of the plaintiff was not necessary for making such construction as this suit properly is a requisitioned property. Defendants admit plaintiff's title to the property and state that the plaintiff is being paid monthly compensation on that basis. The construction of the shed on the disputed property is not an act of trespass and the defendants are not liable to remove the constructions until the property is released from requisition.

3. Issue No. 4 was the main issue. It is to the effect 'Was the suit property requisitioned by the State Government' After discussing the relevant documentary and oral evidence in paragraphs 7 to 22 of the judgment, the learned trial court recorded the following finding:

'. . .house including the open space in the front of it including, the suit land was requisitioned.'

4. This finding was at first assailed by Mr. Ranjit Mohanty with some seriousness. He, however, ultimately did not assail the finding and accepted it as correct. Ex. 2 runs thus:

ORDER

Cuttack District Office

The 14th October, 1944.

No. 2693 Res.

In exercise of the powers conferred on the Central Government by Sub-rule (1) of Rule 75-A of the Defence of India Rules, and delegated to me by the notifications of the Govt. of India in the Defence Co ordination Department No. 1336-OR/42 dated the 25th April, 1942, I. L. P. Singh, Esqr.. I. C. S., Collector, Cuttack, being of opinion that 'it is necessary so to do for the efficient prosecution of the war, hereby requisition the portion of plot No. 12 containing four big rooms with a verandah and two side rooms, in mouza Town Bishnahar Samil Buxi Bazar, Thana Cutlack No. 204, Touzi No. 2616 (Khasmahal holding No. 37, Khata No. 1766. and municipal holding No. 70 on Ward No. VII) 'together with the premises attached thereto,' belonging to Sri Ramkumar son of Binjharaj and Liladhar minor son of Harmukh Rai of Buxi Bazar, Town Cuttack, at present residing at Jhuujhun, P. O. District Rajputana, with effect from the 14th October, 1944.

Sd. L.P. Singh

Collector, Cuttack,

14-10-44.

The underlined (here in ' ') expression 'together with the premises attached thereto' clearly shows that besides the four big rooms with the varandah andthe two side rooms the attached premises were also requisitioned. The disputed land is just adjacent to the house and is necessan for the reasonable user of the house. Plaintiffs averment in the plaint that only four big rooms with the verandah and the two side rooms were requisitioned, is contrary to the recital of Ex. 2. The finding is well founded on the materials on record. As. however, it is not assailed, it is unnecessary to discuss the other materials.

Once the defence case that the disputed land was also requisitioned is accepted, plaintiff has no cause of action to claim further compensation at the rate of Rs. 175 per month or removal of the structures until the requisitioned property is derequisitioned After the property is released from requisition, it would be delivered back in as good a condition as it was when possession thereof was taken, subject only to the changes caused by reasonable wear and tear and irresistible force Plaintiff has no cause of action in praesenti.

On the aforesaid conclusions the appeal has no merit and is liable to be dismissed,

4. Mr Ranjit Mohanty, however, raised an altogether new contention for the first time in appeal that the purpose for which the requisitioned property was being used ceased to exist and, as such the defendants were bound to release the property from requisition. As it involves a pure question of law he was at lowed to advance this contention

5. To appreciate the aforesaid contention, its factual basis may be clarified. As appears from Ex 2 the Requisitioning Officer was of opinion that the requisitioned property was necessary for the efficient prosecution of the war. It is the common case of the parties that the properly was requisitioned for the Government Press at Cuttack and all through it is being used for that purpose till now. Mr Ranjit Mohanty contends that the war ceased in 1940. and the purpose of the requisition being efficient prosecution of the war, the property must be released from requisition and delivery of possession of the property must be given back and the unauthorised construction is an act of trespass creating a right in favour of the plaintiff to claim compensation.

6. The argument is based upon Section 6(1) of the Orissa Requisitioning and Acquisition of Immovable Property Act. 1952 (Orissa Act XXIX of 1952). hereinafter referred to as the Act. It is the common case of the parties that the Act is still in force and that the rights and liabilities of the parties are to be determined in accordance with the provisions of the Act.

7. The relevant law may be noticed The original requisitioning by Ex. 2 was under Rule 75A of the Defence of India Rules (hereafter referred to as the Rules) framed under the Defence of India Act. 1939 Rule 75A(1), without the proviso, runs thus:

If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or the efficient prosedition of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any properly, moveable or immoveable. and may make such further orders as appear to that Government to he necessary or expedient in connection with the requisitioning Section 24(2) of the Act reads

For the removal of doubts, it is hereby declared that any property which immediately before such repeal was subject to requisition under the provisions of the said Act shall, on the commencement of this Act, be deemed to be properly requisitioned under Section 3 of this Act. and all the provisions of this Act shall apply accordingly.

The Requisitioned Land (Continuance of Powers) Orissa Amendment Act, 1951 (herein after referred to as the Act) kept alive the requisitions made under Central Act 17 of 1947. Section 6(1) of the Act is as follows:

The State Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force:

Provided that where the purpose for which any requisitioned property was being used cease to exist, the State Government shall, unless the property is acquired under Section 7. release that property, as soon as may be. from requisition

8. Mr. Ranjit Mohanty's contention may now be stated. Under the proviso to section 6(1) of the Act. if the purpose for which requisition was made ceased to exist, the re quisitioned properlv must be released by the State Government Though the properly is admittedly being used for the Government Press from the date of requisition till now. the purpose for which it was requisitioned was the efficient prosecution of the war, and that purpose having come to an end, the Government had no jurisdiction or authority to further continue the requisition. If the purpose of the requisition would be taken to be only the efficient prosecution of the war, clearly such purpose no longer subsists and the requisitioned property must be released. If. on the other hand, the purpose of requisitioning was for running the Government Press for the efficient prosecution of the war, the purpose still continues and the requisition order is alive despite cessation of the war.

In my view, there is no justification to put a restrictive meaning on the word 'purpose', and to confine it to the broad purposes mentioned in Rule 75A of the Rules. The ac tual users under the broad headings come within the sweep of the expression 'purpose' Doubtless the main purpose of requisition was for the efficient prosecution of the war The actual user of the requisitioned house for the Government Press was an integral part of the efficient prosecution of the War. The user itself is a purpose and cannot be dissociated from the main purpose. The result, therefore, is that though the war came to an end, the purpose for which the house was requisitioned did not come to an end, The admitted case being that the requisitioned house is being used for the Government Press from the date of the requisition order till now it cannot be contended that the purpose of requisitioning had come to an end.

9. The matter was fully examined in Union of India v. Ram Kanwar, AIR 1962 SC 247 with reference to the corresponding provision of the Requisitioning and Acquisition of Immoveable Property Act, 1952 (Central Act XXX of 1952) which is in pari materia with the Orissa Act. Their Lordships observed in clearest terms that the purpose under Section 3 of the Act must be judged in the context of the purpose referred to in Rule 75A of the Rules. If the purpose for which the property was requisitioned was for Public as well as State purposes under the five categories of the broad purposes, referred to under Rule 75A of the Rules, the requisition would remain alive under the Act. The pertinent observations of their Lordships may be extracted-

But the fiction created by section 24 (2) of the Act would operate only upon the requisition already made. The fiction could not validate any illegal act of the Government. Therefore, the question is what was the effect of the earlier requisition under the Rules as well as under the 1947 Act. If the requisition originailly made was for purposes men tioned in Rule 75A of the Rules and continued under section 3 of the 1947 Act only for the said purposes, under section 3 of the 1952 Act the requisition of the property made for the said purpose would be deemed to be a requisition for a public purpose being a purpose of the Union. But the validity of the requisition could be judged on the basis of the pre-existing statutes and not on the basis of the provisions of the sections of the 1952 Act. The result is that the requisition of the property made for public purposes under Rule 75A of the Rules would be deemed to be a requisition under section 3 of the Act and all the provisions of the Act would apply accordingly

This dictum applied to the facts of the case before their Lordships, resulted in the conclusion, that the requisition order was not alive. The initial requisition was valid under Rule 75A. Subsequently, however the requisitioned properly was used for a private purpose for locating Triveni Kala Sangam. The user of the requisitioned property was not continued for the purposes for which it was requisitioned, The underlined expression furnishes the clue to the observations of their Lordships. Applying the same principle to the facts of this case, the requisition order must be treated as being alive as the purpose for which it was requisitioned was valid in the context of rule 75A and continues to be so till now and would be deemed to be a requisition under Section 3 of the Act. The purpose for which therequisitioned properly was being used did not cease to exist in this case.

10. Mr Ranjit Mohanty placed strong reliance on the following extract in paragraph 13 of their Lordship's judgment in support of a contention that the efficient prosecution of the War and not the user of the property for the Government Press, was the purpose of requisition The passage is --

The criterion is not. therefore whether a particular purpose for which a building was used when the Act came into force was a public purpose, being the purpose of the Union, within the meaning of Section 3 of the 1952 Act. but whether it was requisitioned for one of the purposes mentioned in Rule 75A of the Rules. If those purposes ceased to exist, the proviso to Section 6 of the 1952 Act made it obligatory for the Government to release the properly. As the flat was being used for a purpose other than that for which it was requisitioned, the respondents were entitled to be put in possession thereof.

This passage doe.s not lay down anything different from what was stated in paragraph 11 of the judgment, already extracted. If the original requisitioning under Rule 75A was invalid in law it cannot be valid by the continuance of the requisition order even if at the lime when the Act came into force it was for a public purpose. The requisition Order must be justified by one of the purposes mentioned in Rule 75A.

11. Mr. R. Mohanty's contention would lead to absurd result. It is well known that the war came to an end in 1946 If the contention is accepted, result would be that all those properties which were requisitioned for public purposes, either of the Union or of the State, must be derequisitioned immediately with the cessation of the war Nothing would have been easier than to say so in the statute in the clearest terms. On the contrary, the user of those requisitioned properties was intended to be continued subject to the rider that the user for the same purpose continued. In the case dealt with by the Supreme Court, the original requisitioning was valid and the continuance of the requisition was not justified as the property was used for a private purpose

12. The correct legal position may be summed up-

(i) Public purpose is not to be given a restrictive meaning by confining it to the five general purposes enumerated in Rule 75A of the Rules The aclual user of the properly would constitute an integral part of those purposes if the user is related to one of those purposes

(ii) A valid requisition order under Rule 75A can be con tinned subsequent to the expiry of the Rules, provided the property is used for the very purpose for which it was requisitioned at the time the Act came into force.

(iii) It the original requisition order under Rule 75A was invalid, its continuance cannot be valid Under Section 3 of the Act even ifat that time it was used for a public purposed under the Act.

(iv) If the original requisition order was valid under the Rules, it cannot be kept alive under the Act if the user for which it was originally requisitioned is altered. It cannot be kept alive unless it was used for the very purpose for which it was requisitioned.

In this case, the property was requisitioned for the purpose of efficient prosecution of the war. The actual user was for housing the Government Press. The work carried through the Government Press was for a public purpose and for State purpose and was for the efficient prosecution of the war. Though the war had come to cease, the purpose for which the property was being used has not come to cease and in fact it is being used for the same purpose all through. Under the proviso to Section 6 (1) of the Act, the property cannot be derequisitioned. The contention has no force.

In the result the appeal fails and is dismissed with costs

Das, J.

13. I agree


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