1. This is a rule obtained by Harbhajan Singh against an order of the District Magistrate requisitioning the house in dispute under the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948 as amended by the Act of 1951.
2. The petitioner alleges that the notice was issued to him on 17-7-1952 by the District Magistrate and he made his representation on the 21st July stating that the house was not lying vacant and it was 'bona fide' used as residence by himself. The District Magistrate did not accept this and in spite of this representation issued the order of requisition on 12-8-1952. On 26-8-1952 the petitioner obtained a rule from this Court and delivery of the possession of the house was stayed.
3. In the meanwhile the previous Act has been repealed and a new Act has been passed which is Punjab Act, No. 11 of 1953. In the proviso to Section 3(2) it is now provided that no property or part thereof can be requisitioned if it is in 'bona fide' use of the owner as residence for himself or for his family. Section 25 of this Act deals with repeals and savings. Second sub-section of this section reads as under:
'(2) 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 either of the said Acts shall, on the commencement of this Act, be deemed to be property requisitioned under Section 3 of this Act, and all the provisions of this Act shall apply accordingly:
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(b) anything done or any action taken (including any orders, notifications or rules made or issued) in exercise of the powers conferred by or under either of the said Acts shall, in so Tar as it is not Inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such thing was done or action was taken.'
4. Mr. Anand Mohan Suri has placed several affidavits on the record which show that he now is and was in possession at the time when the notice of requisition was issued. The order of requisitioning at the time when it was passed even though it might have been good at the time, has now to be read along with the proviso to Sub-section (2) of Section 25, and unless it is consistent with the provisions of this Act, it cannot be taken to be an order passed under this Act, and as the possession has not passed and the requisitioning wouldnow be considered to be under the new Act the provisions of which arc not consistent with the orders of the previous Act, that order cannot be held to be a good order.
5. In view of this I would set aside the orderof requisitioning passed on 12-8-1952. in the circumstances of this case parties will bear theirown costs.