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Hari Chand Aggarwal Vs. Batala Engineering Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 719 of 1964
Judge
Reported inAIR1966P& H141; 1966CriLJ434
ActsDefence of India Act, 1962 - Sections 29 and 40; Defence of India Rules - Rules 107 and 108; Code of Criminal Procedure (CrPC) - Sections 10(2)
AppellantHari Chand Aggarwal
RespondentBatala Engineering Co. Ltd. and ors.
Appellant Advocate H.R. Aggarwal and; A.L. Bahri, Advs. for; R.C. Dogra
Respondent Advocate M.R. Sharma, Adv. for; Adv.-General,; H.L. Sarin, Sr
DispositionPetition dismissed
Cases ReferredCentral Talkies Ltd. Kanpur v. Dwarka Prasad
Excerpt:
.....respondent who carefully considered the matter and formed the opinion and was satisfied that it was a fit case for taking action under section 29 of the defence of india act. , whereby he is invested with all the powers of the district magistrate under the code as well as under any other law for the time being in force would be competent to deal with an application under section 3 of the u......be called in aid to confer the powers of the provincial government under rule 26, defence of india rules, on any officer subordinate to it. the provincial government when it confers the power on the district magistrate (to pass orders under rule 26, defence of india rules), under section 2 (5), defence of india act, confers the power on the officer actually holding the office of the district magistrate and on no one else and, therefore, no power under rule 26, defence of india rules, can be exercised by the additional district magistrate simply by virtue of the notification under section 10 (2), cr. p. c.5. on behalf of the respondents, my attention has been drawn to a decision given by me in cantonment board, ambala cantonment v. lachhmandas hari ram, 1962-64 pun lr 456: (air 1962.....
Judgment:
ORDER

I.D. Dua, J.

1. The petitioner has approached this Court under Articles 226 and 227 of the Constitution pleading that he is carrying on at Batala the business of commission agent in machines, mainly chaff-cutters, in the shop belonging to the Batala Engineering Co. Ltd., (Respondent No. 1) for the last ten years as a tenant at a monthly rent of Rs. 20/-. The petitioner has established himself in the same business and pays income-tax and profession tax, having also installed a telephone in the shop for his business. Respondent No. 1 filed an application on 8-1-1964 for the petitioner's ejectment from the said shop in the Court of the Rent Controller, Batala.

The petitioner had put in his written statement and had also deposited the rent in accordance with law before the first date of hearing. The proceedings are still pending. Feeling weakness of his application, respondent No. 1, the Batala Engineering Co. Ltd., managed to get a letter issued by the Labour Commissioner to the Additional District Magistrate (respondent No. 2 in this Court) for getting the shop in question requisitioned and Shri R. C. Aggarwal, Additional District Magistrate, has accordingly issued a requisitioning order, dated 24-3-1964 purporting to be under Section 29 of the Defence of India Act, 1962, stating that the shop in question is required for setting up a Co-operative Consumers Stores, and the petitioner has been directed to surrender and deliver possession of the shop to the Manager, Co-operative Consumers Stores, Batala.

The petitioner avers that he has invested about Rs. 50,000/- in this business of agricultural implements and machines and that all the dealings are being done in this shop. As the petitioner is not pushing the sale of articles manufactured by respondent No. 1, attempt is being made to evict the petitioner from the shop in question and it is with this object that the authorities concerned have been moved for getting the shop requisitioned. According to the petitioner the mala fides of the requisition are apparent from these circumstances.

2. The writ petition was admitted on 27-4-1964 and notice for stay was given for the following week. The case was then adjourned from time to time for the respondents to file their written statements. The written statement by the Additional District Magistrate is dated 10-8-1964 and that of the Batala Engineering Co. Ltd., 3-8-1964. The written statement by the Additional District Magistrate states that the shop in question had been requisitioned on the request of the Labour Commissioner, Punjab, for setting up the Co-operative Consumers Stores under the provision of Section 29 of the Defence of India Act, 1962, read with notification No. GSR 1716 of 1962 and 662-ASI-64/3036, dated 23-1-1964. Though the written statement and affidavit expressly recite that these notifications have been annexed as Rule l and Rule 2, there are no such annexures, but as ordered by me in a separate order on 14-8-1964, one of the notifications is annexed to the writ petition and the other is published in the Punjab Gazette with the result that I did not consider it necessary to adjourn the case for this purpose.

Reverting to the written statement of the Additional District Magistrate, he has pleaded that he had been duly authorised by the Punjab Government to exercise the powers of the District Magistrate under the Criminal Procedure Code and under any other law for the time being in force vide notification Rule 2, dated 23-1-1964. He has, however, stated in paragraph 8 (vi) of the reply that although the move had been made by the Labour Commissioner, respondent No. 4, it was the answering respondent who carefully considered the matter and formed the opinion and was satisfied that it was a fit case for taking action under Section 29 of the Defence of India Act. It has, however, been admitted that the shop in question had been requisitioned for the period required for running the Co-operative Consumers Stores and would be derequisitioned when no longer required for that purpose. The period of requisitioning, according to the reply, is not required to be specified in the requisitioning order under Section 29 (3), Defence of India Act, which is an emergency provision.

3. The written statement by the Batala Engineering Co. Ltd., respondent No. 1, admits the pendency of the eviction proceedings in respect of the shop in question. It has been pleaded in paragraph 9 of the written statement that the petitioner has got his own double storeyed shop on the Railway Road, Batala, in which he can easily carry on his business and in paragraph 10, it has been averred that the answering respondent has some workers quarters and not shops as suggested by the petitioner and they are being occupied by the workers and servants of the company.

It appears that on 4-5-1964, an additional affidavit was placed on the file by the petitioner and on 4-8-1964, a further affidavit was placed on the file by the petitioner. At this stage, I must point out that this was contrary to Rule 8 Chap 4-F (b), Part II (Civil), Vol. V, High Court Rules and Orders, as it has not been done with the leave of the Court, and it may be stated for the guidance of the office that further affidavits contrary to this rule should not be accepted as a matter of course and that leave of the Court must be obtained before further affidavit can be placed on the record.

4. My attention during the course of arguments has been drawn to Annexures 'B' and 'C' attached to the petition from which it is clear that Shri R. C. Aggarwal, Additional District Magistrate, Gurdaspur, claiming to be the competent authority under the Defence of India Act exercised the power under Section 29 (1) of the Act read with Government of India Notification No. GSR No. 1716, dated 17-12-1962. Annexure 'C' which is G.S.R. 1716, dated 13-12-1962, purports to be a notification issued under Section 40 (1) of the Defence of India Act, 1962, by means of which the Central Government delegated the power under Section 29 and some other sections of the Defence of India Act, among others, to all Collectors, District Magistrate and Deputy Commissioners in the State.

We are not concerned with the other powers, some of which have been conferred by this notification on Land Acquisition Collectors, etc. It is contended before me that an Additional District Magistrate is not one of the officers to whom this power has been delegated by the Central Government, with the result that he cannot exercise the powers which had been conferred on District Magistrate along with Collectors and Deputy Commissioner. Emphasis has been laid that the words 'Collectors, District Magistrate and Deputy Commissioners' tend to suggest that it is only these officers as such who can exercise this power and any other officer who may for some other purpose be empowered to exercise the power conferred on these officers cannot be intended to have been vested with such power.

The petitioner's learned counsel has in this connection drawn my attention to two decisions of the Nagpur High Court reported as Prabhakar Kesheo v. Emperor, AIR 1943 Nag 26, and Prabhulal Ramlal Kabra v. Emperor, AIR 1944 Nag 84, both Division Bench judgments. It has been observed in Kabra's case, AIR 1944 Nag 84, that Section 10 (2), Cr. P. C., and Section 2 (5), Defence of India Act, are quite distinct in their scope and application. The former is concerned with the powers of the District Magistrate under the law and the latter with the powers of the Provincial Government. Section 10 (2), Cr. P. C., cannot be called in aid to confer the powers of the Provincial Government under Rule 26, Defence of India Rules, on any officer subordinate to it. The Provincial Government when it confers the power on the District Magistrate (to pass orders under Rule 26, Defence of India Rules), under Section 2 (5), Defence of India Act, confers the power on the officer actually holding the office of the District Magistrate and on no one else and, therefore, no power under Rule 26, Defence of India Rules, can be exercised by the Additional District Magistrate simply by virtue of the notification under Section 10 (2), Cr. P. C.

5. On behalf of the respondents, my attention has been drawn to a decision given by me in Cantonment Board, Ambala Cantonment v. Lachhmandas Hari Ram, 1962-64 Pun LR 456: (AIR 1962 Punj 490), where for the purpose of the Cantonment Act, I considered the Additional District Magistrate on whom all the powers of District Magistrate were conferred to be competent to exercise the judicial powers of the District Magistrate.

6. I find that the Supreme Court has in Central Talkies Ltd. Kanpur v. Dwarka Prasad, AIR 1961 SC 606, held that an Additional District Magistrate appointed as such by a notification under Section 10 (2), Cr. P. C., whereby he is invested with all the powers of the District Magistrate under the Code as well as under any other law for the time being in force would be competent to deal with an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act for permission to file a civil suit without special authorisation from the District Magistrate.

7. Another point urged by the petitioner is that respondent No. 1, the Batala Engineering Co., had filed an application for the petitioner's ejectment from the shop in dispute on 8-1-1964 and the petitioner while filing his written statement had also deposited the rent with costs before the first date of hearing, the only ground taken for ejectment being arrears of rent. It is averred that since chances of getting an eviction order were feeble, respondent No. 1 got a letter issued by the Labour Commissioner to the Additional District Magistrate, respondent No. 2, for getting the shop requisitioned,

It has, therefore, been averred and argued that the order of requisition is mala fide, being inspired by the collateral purpose of obliging respondent No. 1. Section 29, according to the argument, is not attracted because it cannot be said that it is necessary or expedient to requisition the property in question for maintaining; supplies and services essential to the life of the community.

8. The point raised appears to me to be of importance and, therefore, I consider it desirable that they be decided by a larger Bench. Papers may thus be laid before my Lord the Chief Justice for necessary orders under Chapter 3-B, Rule 1, Clause (XX) read with proviso (b) High Court Rules and Orders, Vol. V.


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