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Gyan Chand JaIn Vs. District Magistrate, Alwar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1151 of 1976
Judge
Reported inAIR1985Raj213
ActsDefence and Internal Security of India Act, 1971 - Sections 23, 24, 29 and 31; Constitution of India - Article 226
AppellantGyan Chand Jain
RespondentDistrict Magistrate, Alwar and ors.
Appellant Advocate S.M. Mehta, Adv.
Respondent Advocate S.R. Joshi, Adv.
DispositionPetition dismissed
Cases ReferredPatel Narshi Thakershi v. Pradyumanshinghji Arjunsinghji.
Excerpt:
.....like a law abiding person and handed over the possession not for the use or occupation of the premises by the landlord but by the state. may 15, 1976 clearly go to show that the respondents never intended to part with the possession of the premises for all the times. a notice under this section has to be given along with rule 154 of the rules of 1971 wherein also the similar words, namely, owner or person' have been (used). however, sub-rule (2) of rule 154 says that whenever the property is requisitioned the competent authority shall pay to the owner at such rate as he may order in this behalf and this has to be calculated looking to the usual rates paid for like space and accommodation in the area during the 12 months immediately preceding the day of proclamation of emergency...........deemed by the central government or the state government, as the case may be, to be the owner or person in possession of the property, and such order has to be served in the prescribed manner on the person to whom it is addressed. a notice under this section has to be given along with rule 154 of the rules of 1971 wherein also the similar words, namely, 'owner or person' have been (used). however, sub-rule (2) of rule 154 says that whenever the property is requisitioned the competent authority shall pay to the owner at such rate as he may order in this behalf and this has to be calculated looking to the usual rates paid for like space and accommodation in the area during the 12 months immediately preceding the day of proclamation of emergency. thus for payment of rent the word used in.....
Judgment:
ORDER

V.S. Dave, J.

1. The petitioner who is a landlord has challenged the order of the District Magistrate, Alwar dt. May 12, 1976 by which he has ordered the delivery of possession of a Godwon, boundaries of which have been given in para 2 of the writ petition to respondent 3 a tenant.

2. Respondent 3. Shri Raj Kumar Kherawat, took on lease the Godown from the petitioner on Nov. 29, 1972 on a monthly rent of Rs. 200/-. Though initially it was taken only for a period of 11 months under a rent note Ex. 1 but it continued to be with him even thereafter. On May 12, 1976 the petitioner had received a notice from respondent I purported to be under Section 23 of the Defence and Internal Security of India Act, 1971 and Rule 154 of the Defence and Internal Security of India Rules, 1971 requisitioning the aforesaid premises. When the petitioner received the notice from respondent 1 on May 12, 1976, on the same day he served a notice on respondent 3 through Shri Prakash Chand Jain Advocate desiring him to vacate the premises within 12 hours as the same had been requisitioned by the District Magistrate, Alwar under D.I.R. This notice also threatened respondent 3 of the consequences of not vacating the premises. Respondent 3 as a law abiding citizen handed over the possession of the property on the same day to Jai Kumar Jain, nephew and an authorised agent of the petitioner, who in turn handed over the Godown to the Manager, Rajasthan State Warehousing Corporation, Alwar and thus the Godown went in possession of the Corporation on the day it was requisitioned.

3. The answering respondent realising that the landlord in the garb of requisition under the provisions of D.I.R. may not permanently deprive him of the tenancy and consequently the possession of Godown, sent a telegram through his counsel Shri Babu Lal Goyal on May 13, 1976, a copy of this telegram is Annexure 5 wherein the respondent intimated that he being a statutory tenant his tenancy which still exists would revive automatically whenever the Godown is vacated by the State. A similar application was submitted by the petitioner through his counsel to the District Magistrate on May 15, 1976. On May 18, 1976 the District Supply Officer issued a notice to Shri Jai Kumar Jain and Shri Fateh Singh. Manager of the warehouse, and respondent 3 to appear before him on May 19, 1976. The statements of Fateh Singh and Jai Kumar Jain were recorded and the District Magistrate vide his order dt. May 19, 1976, directed that the requisitioned Godown having been taken over from Shri Raj Kumar the same shall be restored to him upon derequisition and the rent payable during the requisition period shall also be paid to Shri Raj Kumar. He, however, passed the order without prejudice to the rights, liabilities and interest of the parties as landlord and tenant. It is against this order that present writ petition has been filed by the landlord.

4. Learned counsel for the petitioner has challenged the order and has submitted that it is the cardinal principle that property must be restored to the person from whose possession it has been taken and since in this case Warehousing Corporation has taken the possession of the property vide Annexure 4 from Shri Jai Kumar Jain who was acting on behalf of the petitioner it must be restored to him. Secondly it is submitted that the relationship of the landlord and the tenant came to an end automatically when the respondent 3 handed over the vacant possession of the premises to the petitioner on May 12, 1976 and also made over the payment of rent till that date. It was further contended that the District Magistrate while ordering the requisition of the property had issued orders in the name of the petitioner and further mentioning in the notice Ex. 2 that the rent of the Godown shall be paid to the owner of the Godown according to rules, he cannot review his own order and direct the payment of rent to respondent 3 as exercise of power of review is only permissible when the statute provides for it. It is submitted that the Act does not confer such powers of review. In support of this proposition the learned counsel has relied on Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji : AIR 1970 SC 1273. It has further been contended that no reasonable opportunity has been given to the petitioner to contest the case as no notice was issued to him and instead it was issued in the name of Jai Kumar who had no authority to represent him. In support of this contention he had relied upon a decision of this Court reported in Associated Soap Stone Distributing Co. Jaipur v. State of Rajasthan, 1971 WLN 702 : 11972 Tax LR 2233).

5. The learned counsel for the respondents submitted that the tenancy was never terminated as required by law and even on a perusal of the notice Ex. 3 it is clear that the landlord through his counsel informed that the respondent was required to vacate the premises within 24 hours as the same has been requisitioned else he had to own the responsibilities of being penalised under D.I.R. and the same will be requisitioned with entire equipments. In this eventuality of the matter the respondent acted like a law abiding person and handed over the possession not for the use or occupation of the premises by the landlord but by the State. Thus the intention of the respondent in handing over the possession was not to hand over the vacant possession for the enjoyment of the premises by the landlord but it was meant to be occupied for the purpose of using as Godown by the Rajasthan Warehousing Corporation. Thus in fact the possession was given to the Warehousing Corporation and not to the landlord. He was only an intermediary without acquiring any right under the law. It was further submitted that whether the tenancy came to an end or not is a disputed question of fact which cannot be adjudicated in extraordinary jurisdiction of this Court. Further that the petitioner had an alternative remedy by way of suit and by taking recourse to the provisions of general law by filing a civil suit. The petitioner for his above, contentions has referred to Jafruallah Khan v. State of Rajasthan, 1978 Raj LW 44 : (1978 Tax LR 22541. Titaghar Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603 and Ganga Dhar Gujar v. Union of India, 1983 Raj LW 373. The learned counsel has further contended that it is wrong to say that Jai Kumar who has been given notice of the application had no authority to accept the notice. It has been submitted that the petitioner is estopped from challenging the right of Jai Kumar to represent him. On one hand the petitioner wants to take the advantage of taking of possession of the premises by Jai Kumar Jain vide Annexure 4 because it suits him and on the other hand when it came to the question of handing over the possession back and the notice was given to him he has challenged it on the ground that he had no authority. Though the time intervening between the two is only six days. It, therefore, cannot be conceived of that only six days earlier Jai Kumar Jain had the authority to represent and work as authorised agent of the petitioner and after six days the powers are withdrawn. No such document has been placed on record to show that Jai Kumar Jain was given an authority for limited purposes and that the same was withdrawn at a later stage. It has been contended that in fact if Jai Kumar Jain is not a person authorised then the very basic argument of the petitioner that the possession was handed over to him falls flat. It has also been contended that the telegram dt. May 13, 1976 and the application, dt. May 15, 1976 clearly go to show that the respondents never intended to part with the possession of the premises for all the times. The respondents have further contended that in Section 23 where the property is to be requisitioned the legislature has used the words 'owner or person' which means that notice to either of the two for requisitioning is sufficient. However, while the question of rent payable in respect of the property concerned the word used by the legislature is 'owner' while for receiving the compensation in lieu of requisition the word used is 'person' and in this view of the matter also the word 'person' should be given an interpretation so as to cover the person in whose actual possession the premises were at the time when notice of requisition was issued.

6. For deciding the controversy in this writ petition it is essential to consider the various provisions of the Defence of India Act. Section 23 of the Act reads as under :

'Section 23. Requisitioning of immoveable property.-- (1) Notwithstanding anything contained in any other law for the time being in force, if in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India, civil defence, (internal security), public safety, maintenance of public order or efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any immoveable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning :

provided that no property or part thereof which is exclusively used by the public for religious worship shall be requisitioned.'

Sub-section (2) of the aforesaid section requires an order in writing to be addressed to the person deemed by the Central Government or the State Government, as the case may be, to be the owner or person in possession of the property, and such order has to be served in the prescribed manner on the person to whom it is addressed. A notice under this section has to be given along with Rule 154 of the Rules of 1971 wherein also the similar words, namely, 'owner or person' have been (used). However, Sub-rule (2) of Rule 154 says that whenever the property is requisitioned the competent authority shall pay to the owner at such rate as he may order in this behalf and this has to be calculated looking to the usual rates paid for like space and accommodation in the area during the 12 months immediately preceding the day of proclamation of emergency. Thus for payment of rent the word used in Sub-rule (2) is only 'owner' while in Sub-rule (3) a provision has been made for determining the compensation payable therefor and the word used there is not 'owner' but 'person'. Thus, in my opinion the legislature clearly intended to distinguish between word 'owner' and 'person'. Since the property belongs to the owner it appears that the legislature thought it proper to ensure that the rent must be paid regularly to the landlord who otherwise was getting it from his tenant, but the compensation is to be paid to the person who has been put to an inconvenience for vacating the premises and handing it over to the Government when it is needed for the purposes of the State. Aforesaid provisions cannot, in my opinion, mean that in the garb of the notice of requisition if the tenant vacates the premises for handing over to the Government the tenant should be deprived of the possession of the property for all times together but is also put to a great inconvenience without any compensation. Section 24 of the Act reads as under :

24. Payment of compensation. -- Whenever in pursuance of Section 23, the Central Government or the State Government, as the case may be, requisitions any immovable property, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely : --

(i) the rent payable in respect of the property or if no rent is payable, the rent payable in respect of similar property in the locality;

(ii) if in consequence of the requisition of the property the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;

(iii) such sum or sums, if any, as may be found necessary to compensate the person interested for damage caused to the property on entry after requisition or during the period of requisition, other than normal wear and tear :

Provided that where any person interested being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, may determine :

Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred to an arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, for determination, and shall be determined in accordance with the decision of such arbitrator.

Explanation.-- In this section and in Section 31, the expression 'person interested' in relation to any property includes all persons claiming or entitled to claim an interest in the compensation payable on account of the requisitioning or acquisition of that property under this Act.'

A perusal of the aforesaid section makes it further clear obviously the owner cannot be said to be person interested inasmuch as he was not in possession of the property on the day the notice of requisition is given. He has not been put to any loss as he was only entitled to receive rent for premises from his tenant as he had not determined the tenancy of the person in possession prior to the date of notice. He had neither to remove his goods from the spot nor that he had to take alternative premises for rent for carrying on his business nor in any manner his status is affected and obviously a person who has not suffered any sort of loss or inconvenience is not entitled to compensation. The word 'compensation' means the act or action of making good, or counter balancing, something to make good a lack, something that makes up a loss or cash benefit received by an eligible person as provided for by some legislation which relief equals or neutralises the loss. As mentioned above if the premises are in possession of a tenant as is in the present case and the same are to be requisitioned by the State which gives a notice to the owner, may be not knowing that the premises are leased out and if the landlord in turn informs the tenant that the property is sought to be requisitioned and the tenant as a law abiding citizen hands over the possession, in my opinion, by no stretch of imagination makes the owner/landlord entitled to any compensation much less even he cannot be said to be a person handing over the possession to the competent authority. He is only an intermediary and that too being the owner of the premises. This is further clear from the perusal of Section 29 which reads as under:

'Section 29. Release from requisition.--(1) Where any property requisitioned under Section 23 is to be released from such requisition, the Government by which or under whose authority the property was requisitioned or any person generally or specially authorised by it in this behalf may, after such inquiry, if any, as it or he may in any case, consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the property shall be given and such possession shall, as far as practicable, be given to the person who appears to the Government or, as the case may be, the person authorised as aforesaid, to be entitled to the possession of the property at the time such order is made.

(2) The delivery of possession of the property to the person specified in the order under Sub-section (1) shall be a full discharge of the Government from all liabilities in respect of the property but shall not prejudice any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is delivered'.

A perusal of this section makes it clear that whenever the property is to be released it shall be delivered to the person who as far as practicable appears to be the person authorised or entitled to the possession of the property. This possession of the property is subject to the protection of the rights of the other parties in due process of law. Section 31 makes it further clear that if there is a dispute between the persons entitled for receiving compensation the matter has to be referred to an arbitrator. Thus on a perusal of all the aforesaid provisions there remains no doubt in my mind in holding that it was never intended by legislation that because a notice is given to the owner who informs his tenant and who in case does not hand over the property is liable to be penalised under Section 28 of the Act, if (he) delivers the property to the owner for onward handing over to the competent authority, then such a requisition and possession of the Government would terminate the relationship of landlord and tenant. If any other interpretation is drawn the provisions are likely to be abused inasmuch as any landlord, if a competent officer convenient to him is appointed, can misuse the provisions of law. The argument of the learned counsel for the petitioner that since the possession has been taken from the petitioner he is entitled to the possession on release of the property, in my opinion, is devoid of any force. The petitioner could not have handed over the property to the competent authority in case the petitioner would not have informed the respondent 3 that the same is being requisitioned under the Defence of India Rules and is required within 12 hours. When the notice Annexure 3 was given to respondent 3 even the petitioner never intended to terminate the tenancy. A bare perusal of Annexure 3 shows a request made to respondent 3 for vacating the premises else he was liable to punishment. The following words in notice are of great importance :

'Godown No. 3 towards the East of Tarun Oil Mills. Station Road. Alwar in your possession has been requisitioned by the District Magistrate. Alwar under D.I.R. Please vacate it within 12 hours otherwise responsibility of punishment under D.I.R. will be yours and it will be requisitioned with equipments in it, if any, beware of this not ice.'

This notice nowhere discloses that the tenancy was terminated or was sought to be terminated. It also does not disclose that it was sought to he vacated for the personal use and occupation of the landlord. This notice bears one endorsement on the back of it that Shri Ram Shiv Kumar has refused to accept the notice and again on receipt for acceptance of notice at 9 a.m. The letter of possession Ex. 4 shows that possession has been handed over to the Manager. Rajasthan State Warehousing Corporation at 9.45 p.m. and according to the petitioner at 9.25 p.m. I cannot conceive of a case with a notice of vacation which has been delivered at 9 p.m. and possession of which has been received by the Manager R.S.W.H.C. given in time have first been delivered to the landlord. In fact it was a notional possession which could be intended to be handed over for and on behalf of the owner vide Ex. 4. So far as respondent 3 is concerned, he had demanded the possession back on the very next day, when it appears he found that the landlord may play a foul game in league with the authorities. I, therefore, see no force in the argument of the learned counsel for the petitioner that vacant possession was handed over to him and he thereafter passed over the possession to the Manager of the Warehousing Corporation. Assuming that this was done then too the possession was delivered in pursuance of the notice of requisition and duress of law as the tenant would have otherwise been punished under Section 28 of the Act.

7. Regarding the another argument of the learned counsel that the District Magistrate could not have reviewed his notice Annexure 2 as no power of review has been given to him under the statute has no force. The impugned order Annexure 9 is, in my opinion, not a review of the notice Ex. 2. Notice Ex. 2 has been given under Section 23 read with Rule 254 to the owner of the premises. It does not speak about restoration of the premises on derequisition while the impugned order Annexure 9 has been passed on an application for clarifying the fact as to who will be entitled for the possession of the premises on de-requisition and therefore, is quite distinct. The decision of their Lordships of the Supreme Court cited by the learned counsel reported in Patel Narshi Thakershi v. Pradyumanshinghji Arjunsinghji. (AIR 1970 SC 1273) (supra) is not at all applicable to the facts of this case, particularly when I have held that the impugned order is not an order of review.

8. The third argument of the learned counsel for the petitioner that no reasonable opportunity has been given to him before passing the impugned order also, in my opinion, holds no ground. It was on May 12, 1976 that the notice was served through Prakash Chand Jain and it was on the same day that respondent 2 acting for and on behalf of the petitioner handed over the property and got the document Ex. 4 executed. Thus when the matter of infliction of punishment was there the petitioner authorised Jai Kumar Jain to represent him but when the question of passing the consequential order regarding re-delivery of the possession came the petitioner wants to hack out and submits that Jai Kumar had no authority. He cannot he permitted to blow hot and cold at the same time when it was advantageous he took Jai Kumar Jain to be his authorised representative and when he wants to challenge the impugned order be takes a different stand. It was Jai Kumar whose statement Ex. 12 is on record which clearly shows that he accepted the notice because Jai Kumar was not present and Gyan Chand in his writ petition has stated that Jai Kumar handed over the possession since he was not there. Thus at both the times Gyan Chand was not present and if Jai Kumar had represented and even had given a statement before the District Magistrate I do not see that the order Annexure 9 suffers from the defect of being passed without affording a reasonable opportunity to the petitioner. In fact even if any order would have been passed even then at the time of de-requisition of the property it was open to the District Magistrate to have ordered the property to be restored to the tenant, who, in fact, was the person entitled to possession as he had handed over the property to the owner not for the latter's use and occupation but for onward handing it over in pursuance of the requisition, it is clear from the statement of Jai Kumar when he stated :

^^;g xksMkmu ml le; ls Jhjkef'kodqekj ds dCtsesa Fkh**

(sic) further strengthens the fact of a document of notional possession having been executed between the parties for all practical purposes much less to give the intention of the legislature. I am firmly of the opinion that D.I.R. has not been enacted to defeat the provisions of Transfer of Properly Act which creates a right between the landlord and the tenant and which can be terminated either wilfully or by operation of law. In the instant ease there is absolutely no evidence on record that respondent 3 at any time intended to deliver the possession of the property to the petitioner with an intention to terminate their relationship of the landlord and the tenant. On the contrary immediate action of the respondent clearly goes to show that the tenant never intended to part with the possession of the properly to the landlord. In this view of the matter the person entitled to the possession thereof is none else than respondent 3 and there is no substance in this writ petition.

9. Regarding the question of payment of compensation I have already quoted the provisions above and am clearly of the opinion that the intention of the legislature is that the rent of the premises is to be paid to the landlord but the compensation is to be paid to the person who has been put to inconvenience because of vacating the premises. I have already shown above the meaning of the word 'compensation' and in this case it has to be given effect to in letter and spirit, tenant alone who is deprived of the possession and has been put to a loss, inconvenience and had to shift his goods elsewhere can enjoy the fruits of compensation and not the landlord whose status is neither changed nor who has been put to any advantage or disadvantage by requisition.

10. In view of the aforesaid discussions, I find no force in this writ petitions and dismiss the same with costs.


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