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Bhaishankar Damodar Bhatt Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 409 of 1971
Judge
Reported inAIR1973Guj268; (1973)GLR586
ActsBombay Land Requisition Act, 1948 - Sections 9 and 9(1)
AppellantBhaishankar Damodar Bhatt
RespondentThe State of Gujarat and anr.
Appellant Advocate H.B. Shah, Adv.
Respondent Advocate K.M. Chhaya, Asst. Government Pleader and; Ambubhai and;
Cases ReferredCommr. of Police v. Gordhandas
Excerpt:
.....without considering the need of the petitioner was wholly ultra vires the act and was not for a public purpose: nanji air 1956 sc 294, their lordships in terms held that it was impossible to precisely define the expression 'public purpose'.in each case all the facts and circumstances would require to be closely examined in order to determine whether a public purpose was established. prima facie the government was the best judge as to whether public purpose was served by issuing a requisition order, but it was not the sole judge. however it is well known that no government can carry on their administration efficiently by merely giving salary to their servants. it is easy to see that they would not be able to compete with the other members of the community, specially in a city like..........243 miabhoy j. speaking for the division bench in terms pointed out that such purpose of housing state government servants was a public purpose. if the matter was regarded only from the point of view of the government servants. the purpose of the acquisition would be to advance the interest of the government servants. however it is well known that no government can carry on their administration efficiently by merely giving salary to their servants. the governments should also assure to their servants that on their transfer to a place. they would be provided with reasonable accommodation either immediately or within a reasonable period of time. to ensure such accommodation for their servants. it is obvious that the government must have at their disposal premises which they could make.....
Judgment:

J.B. Mehta, J.

1. The petitioner Doctor had challenged in this petition the order at Annexure A by which his building known as 'Kaushik Building` at Baroda was requisitioned on May 21, 1960. for housing of a State servant and orders at Annexures C and D dated August 10, 1970 and March 29, 1971. by which the petitioner's request for releasing his premises was rejected by the authorities. The petitioner practised as a doctor at Savli and he had intention to settle at Baroda after retirement. He, therefore purchased the suit property in 1958 and rebuilt it. It is now 'Kaushik Building ` which has three storeys. On the ground floor there are two rooms and a kitchen. Same place is on the first floor. The second floor has the same area but there are four rooms . Two rooms on the second floor are with a tenant and the other two rooms are in the possession of the petitioner. The ground floor was with daughter Jaya and her husband and when Jaya vacated, the other daughter Kailas and her husband have come in 1971. When the first floor became vacant in 1960. for the public purpose of housing a State servant. The premises were thereafter being allotted from time to time to various Government servants and as stated in the affidavit-in-reply, five officers at different times became allottees. As the petitioner was aging he wanted to get these premises and he needed them for his occupation and for the education of his children. When the vacancy arose in April, 1970 the petitioners made an application requesting the authorities to allow him personally to occupy the first floor, when the allottee servant had left. This application of the petitioner dated April 6, 1970 was rejected by the Collector on August 10, 1970, by holding that the request to release requisitioned premises could not be accepted. Even the last officer who was thereafter allotted these premises by the allotment order of August 14, 1970 wrote a letter to the Collector on September 17, 1970 that the was allotted Government quarters and he would vacate the requisitioned premises. The petitioner accordingly made another application on September 21, 1970 for having this portion for his personal occupation. Even on this occasion the petitioners request was rejected by the Collector by the order at Annexure D of March 29, 1971 on the ground that his request for releasing the requisitioned premises was not a proper request. The petitioner, therefore, filed the present petition on April 6, 1971. challenging the aforesaid order. Mr. Shah has raised two grounds in this petition:

(1) That the continued requisition for years like this without any time-limit by allotting the premises to different servants from time to time without considering the need of the petitioner was wholly ultra vires the Act and was not for a public purpose:

(2) the orders refusing to release the premises were arbitrary orders passed without any reasons and. therefore, these orders must be quashed. and the petitioners must be allotted possession of the requisitioned premises in question.

In State of Bombay v. V. R. S. Nanji AIR 1956 SC 294, their Lordships in terms held that it was impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances would require to be closely examined in order to determine whether a public purpose was established. Prima facie the Government was the best judge as to whether public purpose was served by issuing a requisition order, but it was not the sole Judge. The Courts the jurisdiction and it was their duty to determine the matter whenever a question was raised. whether a requisition order was or was not for a public purpose. Where therefore the acquisition a for housing a Road Transport Corporation employee looking to the activities of the Corporation under Section 19(1) of the Road Transport Corporation Act 1950. which were so interlinked with its successful functioning as a Road Transport Corporation that requisitioning or acquisition of property to advance and ensure those activities must be regarded as for a public purpose. Thus an order of the Government of Bombay passed under Section 5(1). Bombay Land Requisition Act. 1948. requisitioning a part of the building for housing an officer of the Corporation was an order for public purpose as it was essential for the Corporation to provide such an accommodation to its employees in order to ensure an efficient working of the Road Transport system and as such. the order was valid. In Smt. Chanchalben v. State of Gujarat, ILR (1964) Guj 227 Division Bench consisting of Miabhoy J. (as he then was) and myself had again considered this question in the light of the aforesaid decision in Nanji's case. At page 243 Miabhoy J. speaking for the Division Bench in terms pointed out that such purpose of housing State Government servants was a public purpose. If the matter was regarded only from the point of view of the Government servants. the purpose of the acquisition would be to advance the interest of the Government servants. However it is well known that no Government can carry on their administration efficiently by merely giving salary to their servants. The Governments should also assure to their servants that on their transfer to a place. they would be provided with reasonable accommodation either immediately or within a reasonable period of time. To ensure such accommodation for their servants. it is obvious that the Government must have at their disposal premises which they could make available to their servants. It is easy to see that the efficiency of the Government service would suffer if the servants have no accommodation on their transfer or no reasonable prospect of such accommodation. If the Government did not make such accommodation available, their servants would have compete in the open market for the same. If the Government servants were left to compete in the general market for obtaining accommodation. it is easy to see that they would not be able to compete with the other members of the community, specially in a city like Ahmedabad and in the hard times through which all are passing in modern times. Therefore. the question of giving is vitally and directly concerned with the question of the efficiency of Government service and that being so, it was held that requisitioning of premises for accommodating Government servants was essential and necessary to maintain efficiency in Government service. and. therefore. the impugned order of requisition came within the purview of the expression 'public purpose'. Mr. Shah, however, vehemently argued that to interpret the word 'public purpose' stated in the impugned order in such a manner so as to make these premises always available to the Government for being allotted to different servants from time to time would be in fact acquisition. So long as the petitioners' title remained in these premises, they were not requisitioned at all.

2. It is true that the requisition order does not specify any time-limit But no such time-limit is required to be specified under the relevant provisions. The statute itself is a temporary statute which is from time to time extended. Therefore. we cannot hold that such requisition order which by different allotment orders from time to time is continued all this time right from 1960 virtually amounts to an acquisition so as to be challenged by the petitioner. The petitioner is awarded compensation for the requisitioned premises which are needed for a public purpose. Mr. Shah in this connection further argued that even the acquisition law has to satisfy the rationality test under Article 19. It is not sufficient that the requisition is for a public purpose and that the owner whose property is requisitioned is paid compensation but the law must satisfy the rationality test under Article 19. Therefore the power to continue premises under requisition could never be arbitrary. It could not be exercised unreasonably and perversely ignoring all considerations of hardships to the petitioner. The circumstances may change and in the light of subsequent events there must be a duty in the Government to see whether the property of a citizen can be kept indefinitely at the disposal of the Government. Such a reading of the statute would be a rational reading. In fact even the legislature has intended that the power under this statute should not be exercised arbitrarily. It has laid down its own guidelines. Under Section 5 (1) if in the opinion of the State Government it is necessary or expedient so to do. the State Government may by order in writing requisition any land for any public purpose. The proviso enacts that no building or part thereof wherein the owner, the landlord or the tenant, as the case may be. has actually resided for a continuous period of six months immediately preceding the date of the order shall be requisitioned under this section. Sub-section (2) provides that where any building or part thereof is to be requisitioned under sub-section (1). the State Government shall make such enquiry as it deems fir and make a declaration in the order of requisition that the owner, the landlord or the tenant. as the case may be. has not actually resided for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided. Therefore. at the time of passing the order the guarantee is implicit that there shall be no hardship caused on the subject. Section 5 (2) contemplates inquiry that the concerned owner. the landlord or the tenant. has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner. landlord or tenant has not so resided. Therefore. in such case there could be no hardship even the expression 'premises' in Section 4 (3) was defined as a public building or a part of building let or intended to be let. If, therefore, the premises which were intended to be let had become vacant and there was a requisition for a public purpose. the owner would not have any hardship. Therefore the initial requisition as per the statutory guidelines would be satisfying the rationality test. In Madan Gopal v. Dist. Magistrate, Allahabad. AIR 1972 SC 2656, in the context of the U. P. (Temporary) Accommodation Requisition Act. 1947. where also Section 3 empowered requisition if the authority was of the opinion it was necessary to requisition accommodation for any public purpose such a rational reading of statute was done so as to imply a notice and a hearing to the person affected. Requisitioning of a property deprived the owner of his cherished right to hold and enjoy his property in view of acute scarcity of accommodation in the State and accommodation once requisitioned was ordinarily not expected to be restored early to the owner. Therefore. the authority must form a judicial opinion as on two points: (1) there exists a public purpose to warrant making of an order of requisition, and (2) in view of the public purpose it is necessary to requisition particular accommodation. On the second aspect it was held that the authority should consider whether the particular accommodation was adequate for the public purpose for which requisition order was sought to be made. e.g. if it was for any public office. he must satisfy himself whether it was sufficient for the needs for the public and whether its location and structure were suitable for that office. He should also consider whether any other equally good or better accommodation could be requisitioned for that public office on payment of a lower amount of compensation. For these objective factors the owner could suggest equally good alternative accommodation at lesser cost if notice was given and opportunity of hearing was provided. In some cases opportunity should be given to lead oral and documentary evidence e. g. where the owner pleaded that he needed the accommodation for this own residence. Therefore. in such a scheme and setting. Section 3 was held to imply a notice and opportunity of hearing even though such power was an administrative power, as arriving at a just decision was the goal of even such a power with such a wide impact on the cherished right of the subject.

3. Even so far as continuance of requisition is concerned. the Legislature has enacted provisions which make it amply clear that this power shall be exercised in a just manner. Section 9 (1) in terms enacts that the State Government may at any time release from requisition and land requisitioned or continued to be subject to requisition under the Act. Under Section 9 (2) (a) upon such release the land shall be restored as far as possible in the same condition in which it was on the date on which the State Government was put in possession thereof and the State Government shall pay compensation for deterioration, if any, caused to the land otherwise than by reasonable wear and tear or irresistible force. Under Section 9 (3) when any land is to be released from requisition. the State Government may after making such enquiry. if any as it deems fit. specify by order in writing the person to whom possession of the land has to be given. Under sub-section (7) of Section 9 for the purposes of releasing any land from requisition. the State Government may, by order direct the person to whom the State Government had given possession of such land and other person. if any, in occupation of such land to deliver possession to the officer authorised in this behalf. Therefore. the allotees who come from time to time are mere licensees of the State and the State has retained this power under Section 9 (7) to get vacant possession so that on release of premises the requisitioned premises can be restored to the original person concerned. It is in this context that Section 9 (1) has to be examined as to whether it confers absolute discretion in the Government to release the premises or invests only judicial discretion. When the nature of the power is examined which is power to continue property under requisition indefinitely. even when circumstance may change and subsequent events may make the exercise of the powers wholly arbitrary and unjust, it is obvious that Section 9 (1) has been enacted by the Legislature so that the rigor of continuance requisition for an indefinite period may be modified by the Government exercising its discretion in this matter. In Govindram v. State of M. P., AIR 1965 SC 1222 at p. 1226, their Lordships pointed out that the words 'may pass such orders' would mean no more than that Government must make its orders to fit the occasion. the kind of the order to make being determined by the necessity. As stated in Maxwell on the Interpretation of Statutes:--

'Statutes which authorise persons to do acts for the benefit of others. or, as it is some times said. for the public good or the advancement of justice have given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enactment that they 'may' or 'shall' if they think fit or 'shall have power' or that 'it shall be lawful' for them to do such acts a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have--to say the least--a compulsory force. and so would seem to be modified by judicial exposition'.

This was an instance where. on the existence of the condition precedent the grant of money or pension becomes obligatory on the Government, notwithstanding that in Section 5 (2) the Government had been given the power to pass such orders as it deems fit and in sub-section (3) the word 'may' was used. The word 'may' is often read as 'shall' or 'must' when there was something in the nature of the things to be done which made it the duty of the person on which the power was conferred to exercise the option. Further proceeding their Lordships held that the Government must. if it was satisfied that n institution or service must be continued or that there was a descendant of a former ruling chief, grant money or pension to the institution or service or to descendant of the former ruling chief. as the case may be. Of course it need not make a grant if the person claiming is not descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. But except in those cases where there are good grounds for not granting the pension. Government was bound to make a grant to those who fulfill the required condition and the word 'may' in the third sub-section though apparently discretionary has to be read as 'must'. Further proceedings their Lordships held that in such cases the Act laid on the Government a duty which obviously must be performed in a judicial manner. The persons concerned were entitled to know the reasons why their claim for the grant of money or pension was rejected by the Government and how they were considered as not falling within the class of persons who had. it was clearly intended by the Act, to be compensated in this manner. Even in those cases where the order of the Government was based upon confidential material, the Court had insisted that reasons must appear when Government performs curial or quasi-judicial functions. Therefore. if there was no such speaking order. the order of the State Government must be quashed. Besides, even under Articles 14 and 19 the rationality tests would require that the Government must have under Section 9 (1) only a judicial discretion. for otherwise the authority would be able to discriminate persons who would be similarly situated. Such orders of release must be passed by the Government. if the subject is able to show that an occasion has arisen which would justify the release the premises or that its further continuance under the requisition would be unjust. Every statutory power had always to be exercised reasonably as per the settled legal position and that is why the word 'may' in the context of Section 9 (1) must be read as 'must' so that the Government would be bound to release the premises. if he occasion so demanded justice being done and the necessity of the occasion justified exercise of the power. The power is such circumstances would be a power coupled with the duty to exercise their power with restraint and after properly balancing the needs of the public purpose on the one hand and the fundamental right of the petitioner to occupy his own property. The authority would have to achieve a just balance. The public interest must have an overriding consideration but still wise balance could always be achieved by considering the request of the subject with an open mind and by exercising statutory power as per its guidelines as explained by his Lordships in Madan Gopal's case. It is true that Section 9 (1) does not lay down any guidelines expressly but they have to be implied from the very nature of the provision that it is a provision which seeks to end the requisition which was for indefinite period. Therefore. the whole object of Section 9 (1) is to confer statutory power on the highest body -- the State Government -- to see that this power of release from requisition is exercised in a just manner by compliance with the needs of the pubic purpose on the one hand as against the needs of the subject. If at the initial stage the Legislature was so conscious as to see that no undue hardship was caused to the subject whose property was made available to remain at the disposal of the State for a public purpose. the same criterion of avoiding untold hardship to the subject would hold good and so long as the requisition is continued by refusing to release the premises in exercise of the statutory power under Section 9 (1). Such an interpretation of the quasi-judicial discretion to release the requisitioned premises when the necessity arose and to make its exercise as per these implied guidelines would alone make the entire scheme a rational scheme so as to satisfy the rationality test falling under Articles 14 and 19(1) of the Constitution. Howsoever the individual's right may have to be sublimated in the wider interests of the community. if some reasonable accommodation can be made of the subject's interest. when all the relevant weights are thrown in the scale. if the scale does not tilt unduly against the State. this limited right of the subject must be accommodated. Such a wise balance is always a sure solution in all such problems when the individual's interest has to be sublimated in the larger whole. To give an illustration. if the citizen's property has been under continuous requisition for such a public purpose of housing a State servant for such a large number of years. and if in the meanwhile due to change of circumstances the citizen is thrown on the road. if would be surely unjust to continue the requisition by fresh allotment orders by not allowing the subject to occupy his own property. Besides. the Government may have built a number of quarters for housing State servants and the necessity which it felt at the initial stage by paucity of Government quarters may not remain so acute as when it exercised this power. Therefore. we can never accept Mr. Chhaya's contention that Section 9 (1) confers absolute discretionary power on the State and the subject has no right even when he brings all facts to show circumstances have so much changed that it would be just to release his premises from requisition. Such a function being a quasi-judicial function must be exercised by passing the speaking order so that these reasons can be scrutinized by this Court in writ jurisdiction. As laid down in Travancore Rayon's case. AIR 1971 SC 862 (866) insistence of a reasoned order served two main purposes :

(1) to serve as deterrent on the authority from passing arbitrary order; and

(2) that this Court would be in a position to consider what passes in the mind of the authority and whether the order was influenced by consideration of policy. or expediency or was passed on the relevant guidelines as laid down by the State.

In Daud Ahmad v. District Magistrate, Allahabad. AIR 1972 SC 896, a similar question had arisen and a landlord's premises were requisitioned for the residence of a Judge of the Allahabad High Court. The owner whose premises were so requisitioned had written to the learned Chief Justice that on retirement of the concerned Judge the premises should be handed over to him. the learned Chief Justice recommended petitioner's application for release of the accommodation. The petitioner had moved authorities for release of those premises. When the petitioner had occupied these premises. which were delivered by the retiring Judge to him his occupation was not held to be illegal. As regards his application for release. their Lordships pointed out that deprivation of property affects the rights of a person. If under the Requisition Act the landlord was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the landlord or the District Magistrate was to provide alternative accommodation as per the relevant rule. The opinion as to alternative accommodation was not an impersonal obligation. It was a determination of a fact. Such an opinion had to be formed on the existence of facts by the District Magistrate by holding an enquiry and not on turning the idea within himself without giving the petitioner any say in the matter. Hence the protection of audi alteram partem rule was attracted. Their Lordships in terms followed the classic decision in A. K. Kraipak v. Union of India. AIR 1970 SC 150. by in terms holding that the application of the doctrine of audi alteram to the exercise of any statutory power depends primarily on the purpose and provisions of the Act. In Kraipak's case. in dealing with the preparation of a selection list for appointment of officers to the Indian Foreign Service. it was held that one of the purpose of the rule of natural justice was to prevent miscarriage of justice. The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It was the nature of the power and the circumstances and conditions under which it was exercised that would occasion the invocation of the principles of natural justice. Deprivation of property affects right of a person. and therefore. in such cases where the petitioner had made specific request to be allowed occupation of the requisitioned premises on the ground that the other house was inadequate and insanitary. the District Magistrate could decided only after due enquiry and investigation on materials whether any alternative accommodation existed. It was this decision which was approved in Madan Gopal's case, AIR 1972 SC 2656. Therefore. as per settled legal position such a release order must be a just order with reasons. In the present case there is no reasoned order whatever and a bald conclusion is stated by the officer that the petitioner's request for release cannot be accepted.

4. In the affidavit-in-reply the only reasons sought to be assigned, even though not stated in the order. are that the request was mala fide because instead of the daughter Jaya and her husband. the petitioner had allowed the ground floor portion to be used by the other daughter Kailash and her husband. The occupation of a married daughter whether it was Jaya or Kailash is for the members of the family and the petitioner's request could never be said to be mala fide on this ground. Besides. it is settled legal principle as pointed out by the Commr. of Police v. Gordhandas, AIR 1952 SC 16 at p. 18 that public orders publicly made in exercise of the statutory authority can never be construed in the light of the explanation subsequently given by the officer making the order of what he meant or what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Therefore. the authority could really never support his orders on the explanation sought to be tendered is not a reason at all. It is a completely prejudicial approach to say that giving of premises mala fide. The owner had purchased this property at such huge cost and had sunk money in rebuilding the premises when he was well settled at Saylu in the hope that when he required it for his own occupation it would be available to him. The premises were requisitioned because the owner had been at Savli. The first floor had be requisitioned in the year 1960. It is the owner's case that thereafter the circumstances have considerably changed and as many as five officers have come and gone from the requisitioned premises. The Government had built various quarters and made them available to Government servants. It was only when vacancy arose by reason of the fact that the alloted servant had vacated that the petitioner renewed his request. The petitioner was 70 years of age and if he wanted to retire at this age by coming to Baroda and if he wanted these premises, it could hardly be said that his request was not a bona fide request. Therefore. to turn down the request on the ground that this was a mala fide request would be perverse exercise of the statutory power vested in the Government under Section 9 (1). This is. therefore. a case of complete non-application of mind and. therefore, we must quash the two impugned orders at Annexures C and D, although we cannot quash the order at Annexure A as contended by Mr. Shah.

5. In the result. we allow this petition and issue a writ of certiorari to quash the impugned orders at Annexures C and D. We issue a mandamus to the Collector who has to exercise statutory powers under Section 9 (1) to dispose of the petitioner's request for release of the premises according to law in the light of the aforesaid observations. As the matter has been sufficiently delayed all this time the Collector shall as far as possible dispose of this application within a period of two months from today. Rule is accordingly made absolute with costs.

6. Petition allowed.


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