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Nirmal Kumar Vs. the Commissioner, Jaipur Divn., Jaipur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 40 of 1951
Judge
Reported inAIR1953Raj33
ActsConstitution of India - Article 226
AppellantNirmal Kumar
RespondentThe Commissioner, Jaipur Divn., Jaipur and anr.
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate R.K. Rastogi, Govt. Adv.
DispositionPetition dismissed
Cases ReferredIndian Sugar Mills Association v. Secy.
Excerpt:
- - 10. in the present case, no doubt the sale deed and rent-notes stand in the name of the petitioner and another affidavit has been filed after the arguments, but he is only a minor, and looking to the conduct of his grand-father chandan mal, in the proceedings before the requisitioning authorities, as well as in this court, it cannot be said that the petitioner is without question the owner of the property in dispute. i am not satisfied that the remedy by way of a civil suit will not be adequate in the circumstances of the case. i, therefore, hold that the petitioner has failed to make out a proper case for the issue of any appropriate writ, direction or order under article 226 of the constitution of india......in taking possession of the property. in the second instance he complains that even the notice to chandan mal did not comply with the provisions of section 3(5) of the ordinance. he, therefore, prays that the order of requisition of the property, chandan mahal, and the sealing of the shop, and possession of both the properties was without jurisdiction, and the order of requisition and sealing be, therefore, quashed and possession redelivered to him.3. return has been made on behalf of both the respondents. they have denied that the property belonged to the petitioner, but asserted that chandan mal was the owner of the property, and, therefore, the notice under the ordinance was properly given to him. it is further submitted that, at any rate, the petitioner is not without.....
Judgment:

Sharma, J.

1. This is an application by Nirmal Kumar minor for a writ of 'certiorari' to send for the requisition file of the house known as Chandan Mahal, and after a perusal thereof, to quash the order of requisition, and to re-deliver the possession of the property known as Chandan Mahal and the shop underneath to the petitioner. In the alternative, the issue of any direction or order as might be deemed fit under the circumstances of the case has been prayed for.

2. The case of the petitioner is that he owns and possesses the promises on the first floor known as Chandan Mahal and three shops on the ground floor. This property is situated in Chaura Rasta, Jaipur city. The first floor of the property, that is Chandan Mahal, was in the occupation if Ramlila Committee, who had their effects lying therein. The respondent No. 2, District Magistrate, Jaipur, requisitioned thefirst floor and sealed one shop on the ground floor under the orders of the respondent No. 1, Commissioner, Jaipur Division, who passed an order, dated the 9th of December, 1950, during the pendency of the appeal preferred by Shri Chandan Mal, grand-father of the petitioner. The order of requisition was passed on the 29th of August, 1950, by respondent No. 2, without giving any notice under Section 3(3) or 3(4) of the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949, (No. XI of 1949) (hereinafter to be referred to as the Ordinance) to the petitioner or to the occupier of the first floor. One notice dated the 29th of August, 1950, purporting to be in the name of Shri Chandan Mal, under Section 3(4) of the Ordinance was found affixed on the first floor of the house on the 8th of September, 1950, ordering Shri Chandan Mal to vacate the house known as Chandan Mahal. Shri Chandan Mal preferred certain objections in his own capacity on the 9th of September 1950, but they were rejected by the respondent No. 2, as being time-barred, and thus his objections were not even considered. The appeal to respondent No. 1 by Chandan Mal was likewise rejected on the 22nd of January, 1951, but during the pendency of the appeal he ordered the respondent No. 2 to seal even the ground floor of the property so that the landlord may not let it out to someone else. This property was thereupon sealed and taken possession of by the respondent No. 2 on the 20th of December 1950. The petitioner complains that in the first instance he being the owner of the property, any notice under the Ordinance ought to have been given to him and not to Chandan Mal. Without such notice to the petitioner, the respondents acted without jurisdiction in taking possession of the property. In the second instance he complains that even the notice to Chandan Mal did not comply with the provisions of Section 3(5) of the Ordinance. He, therefore, prays that the order of requisition of the property, Chandan Mahal, and the sealing of the shop, and possession of both the properties was without jurisdiction, and the order of requisition and sealing be, therefore, quashed and possession redelivered to him.

3. Return has been made on behalf of both the respondents. They have denied that the property belonged to the petitioner, but asserted that Chandan Mal was the owner of the property, and, therefore, the notice under the Ordinance was properly given to him. It is further submitted that, at any rate, the petitioner is not without doubt the owner of the property & in giving him any relief, the Court will have to first declare whether he is the owner of the property or not. Such a declaration is outside the scope of applications under Article 226 of the Constitution of India. Further objection is that the petitioner had another remedy open to him by way of suit, and hence he cannot invoke the extraordinary powers of the High Court under Article 226 of the Constitution in the present circumstances.

4. We have heard the learned counsel for both the sides. Counsel for the petitioner argued that the sale deed of the property stood in the name of the petitioner, and the rent notes also stood in his name. He was, therefore, undoubtedly the owner of the property. The petitioner has also filed an affidavit sworn by his father Dhanraj after the arguments that the property was purchased with the personal funds of the petitioner. The petitioner's title is, therefore, not in doubt, and simply because the respondents do not admit his title, the remedy under Article 226 cannot be denied to the petitioner.

It was further argued that it was not contended that any notice as required by the Ordinance before making an order of requisition had been given to the petitioner. The notice was certainly issued to Chandan Mal, who had no right to such a notice, but even this notice was not served as required by Sub-section (5) of Section 3 of the Ordinance. Under the said sub-section, where the person to whom the notice is issued can be found, the notice shall be served on him personally. But where he is not readily traceable, and the notice under Sub-section (3) and the order under Sub-section (4) cannot be served without undue delay, or where the ownership of the premises is in dispute, the notice and the order shall be served by publishing it in the Rajasthan Gazette and by affixing a copy thereof to any conspicuous part of the premises to which it relates. In the present case, the notice was not served personally upon Chandan Mal. The notice under Section 3(3) was left at the place of business of Chandan Mal with Narain Sahai Munim of the said owner. In the first instance, Narain Sahai was not the Munim, but even if he were the Munim, service on him could not be held to be in accordance with the requirements of law. As regards the shop, it was argued that it was not covered by the notice under Section 3(3) or the order of requisition under Section 3(4). Its sealing was, therefore, altogether illegal, and was an act of high-handed-ness.

5. On behalf of the respondents, it has not been denied that the notice under Section 3(3) or the order under Section 3(4) were not served as required by Section 3(5) of the Ordinance. It was, however, argued that it was Chandan Mal who produced the rent notes of the property from his possession. He did not raise a question before the requisitioning authority that he was not the owner of the property but that it belonged to his grand-son Nirmal Kumar. On the other hand, he asserted in his application dated the 11th of September, 1950, before respondent No. 2 that in the property in question his tenants were living, and that it was not vacant. In his affidavit, dated the 30th of October, 1950, before the respondent No. 1, he stated that if possession of the premises was taken during appeal, it was likely to cause a great hardship to him. Even in the present case, Chandan Mal has filed his affidavit, but has not stated therein that the property belonged to the petitioner and not to him. The petitioner is only a minor, and it is not probable that he might have any funds of his own. The sale deed and rent-notes no doubt ostensibly stand in the name of the petitioner, but under the circumstances of the case, it cannot be said that the property really belonged to the petitioner and not to Chandan Mal. It was further argued that an adequate remedy by way of suit was open to the petitioner, and that under the circumstances this Court would not be justified in the exercise of its extraordinary powers.

6. Under Article 226 of the Constitution of India, this Court has been given a discretionary power to issue to any person or authority, including in appropriate cases any Government, within the territories in relation to which it exercises jurisdiction, orders or writs, including writs in the nature of habeas corpus, mandamus,prohibition, 'quo warranto' and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It has been held in a number of cases that the powers of the High Courts under Article 226 to issue directions, orders, or writs were not confined to those cases only where fundamental rights were infringed. They can be issued for any other purpose, which means even for a purpose other than the enforcement of the fundamental rights. It has, however, been held that extra-ordinary powers under Article 226 will be exercised only in clear cases of infringement of fundamental or legal rights. It has also been held that ordinarily it would not be exercised when another adequate and efficacious remedy exists.

In -- 'Jeshingbhai v. Emperor', AIR 1930 Bom 363, it has been held that under Article 226 the jurisdiction of the High Court is not merely confined to the writs which it issued in the past, but power has been conferred upon it to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III which deals with fundamental rights. The Article confers upon the High Court the power to issue not only writs in the nature of various categories specified in that Article, but those writs themselves, & further the Article goes on to state that those writs or orders can be issued not only for the enforcement of fundamental rights but for any other purpose. 'Any other purpose' was embodied in this Article in order to remove any doubt that the High Court's jurisdiction to issue these writs was confined merely to the enforcement of fundamental rights, because the High Court could issue a writ otherwise than for the enforcement of the fundamental rights, and that power of the High Court is saved and safeguarded by providing in Article 226 that the writs can be issued not only for the purposes of enforcement of fundamental rights, but also for any other purpose.

7. In -- 'Ramani Kanta v. Gauhati University', AIR 1951 Assam 163, it was held that

'Under Article 226, the powers of the High Court are not confined to the issue of prerogative writs only. Other suitable writs or orders can also issue and infringement of legal rights other than fundamental rights can also be remedied lay suitable writs. The infringement of a legal right may in appropriate cases attract the exercise of the discretionary 'powers of the Court under Article 226.'

In the same ruling of the Assam High Court, it was observed by Thadani C. J. that

'Where the existence of a legal right, as distinct from a fundamental right, rests upon facts which have to be proved, remedy by way of a writ under Article 226 of the Constitution of India is highly inappropriate. Facts giving rise to such a right or duty must ordinarily be proved by the person alleging the right in the ordinary civil Courts of first instance having jurisdiction'.

8. In -- 'Indian Sugar Mills Association v. Secy. to Government Uttar Pradesh Labour Department'. AIR 1951 All 1 (F.B.). it was held by a Full Bench of the Allahabad High Court that

'Article 226 of the Constitution is not intended to provide an alternative method of redress to the normal process of a decision in anaction brought in the usual Courts established by law. The powers under this Article should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him'.

9. In -- 'Bagaram Tuloule v. State of Bihar', AIR 1950 Pat 387 (F.B.), it was held that the extraordinary powers under Article 226 of the Constitution did not mean that resort could be had to the extraordinary procedure given by it, where an adequate remedy was available by ordinary legal process, for example, by suit, otherwise the ordinary legal procedure, including the payment of Court-fees, would be abrogated. An application under Article 226 is and must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate and prompt relief.

10. In the present case, no doubt the sale deed and rent-notes stand in the name of the petitioner and another affidavit has been filed after the arguments, but he is only a minor, and looking to the conduct of his grand-father Chandan Mal, in the proceedings before the requisitioning authorities, as well as in this Court, it cannot be said that the petitioner is without question the owner of the property in dispute. This Court will have to go into the question raised on behalf of both the parties, and declare that the petitioner is the owner of the property before it can grant the relief prayed for to the petitioner. In the Full Bench ruling in the case of -- 'Indian Sugar Mills Association v. Secy. to Government Uttar Pradesh Labour Department', AIR 1951 All 1 (FB), it was held that

'Though Article 226 makes no mention as to who shall apply for an appropriate order under the Article, other writs, directions or orders cannot be placed on the same footing as the writ of habeas corpus and only those persons whose interests are directly affected by a statute or an order can apply for redress under the Article'.

With respect I agree to this dictum of the Full Bench of the Allahabad High Court.

11. Under the circumstances of the case, it would be inadvisable to exercise the extraordinary powers under Article 226, and it would be advisable to leave the petitioner to have his title declared and get possession by a regular suit in the ordinary courts. It has not been seriously pressed by the learned counsel for the petitioner that a remedy by way of ordinary civil suit is not open to his client under the circumstances of the case. If he is the owner of the property and possession has been taken behind his back without giving him any notice as required by law, I do not find any reason why he should not have the remedy prayed for by means of a regular civil suit. I am not satisfied that the remedy by way of a civil suit will not be adequate in the circumstances of the case. As held in the rulings cited above, when there is an adequate and efficacious remedy available, it would be improper for this Court to exercise its extraordinary and discretionary powers under Article 226 of the Constitution of India. I, therefore, hold that the petitioner has failed to make out a proper case for the issue of any appropriate writ, direction or order under Article 226 of the Constitution of India.

12. The petition is dismissed, but in the circumstances of the case, I would make no order as to costs.

Ranawat, J.

13. I agree.


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