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Ghousia Begum Vs. the Union Territory of Pondicherry - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 167 of 1970 (P) and W.P. 2795 of 1970 (P)
Judge
Reported inAIR1975Mad345
ActsLand Acquisition Act, 1894 - Sections 3, 4(1), 5-A, 6(1), 9(3) and 24; Constitution of India - Article 226, 239, 246 and 246(1); Code of Civil Procedure (CPC), 1908 - Sections 11 and 80; Pondicherry (Extension of Laws) Act, 1968 - Sections 3(1) and 4(2)
AppellantGhousia Begum
RespondentThe Union Territory of Pondicherry
DispositionAppeal dismissed
Cases ReferredIn Advance Insurance Co. v. Gurudasmal
Excerpt:
land acquisition act (1 of 1894), section 4 (1)--notification under that land comprised in notification are required for public purposes-- decision to acquire left to opinion of government--owner cannot raise any objection that such acquisition would affect his right to carry on his trade or business--acquisition for purpose of central government--proceedings can be initiated only by central government.;constitution of india (1950), article 367--amendment of definition of word state under section 3(58) of general clauses act to cover union territories also, would not apply to interpretation of constitution--union territory of pondicheery--not a state within meaning of constitution--hence notification issued by governor of pondicheery under section 4(1) of land acquisition act on behalf of.....1. this appeal is against the judgment and decree dated18-3-1970 of the additional district judge. pondicherry in o. s. no. 160 of 1969. that was a suit filed by one ghousia begum, wife of grochil jahan khan alias kurshid jan pasha, the owner of the property acquired in pursuance of a notification made under section 4(1) of the land acquisition act, 1894, by the administrator of the union territory of pondicherry on 8-12-1964. the suit was for a permanent injunction restraining the union territory of pondicherry from taking possession of the property in pursuance of the acquisition proceedings. ghousia begum claimed that she had a charge, as in a mortgage or "hypothecue legale" on the property for the mahar debt due to her from her husband. she filed the suit on 2-1-1969. nearly four.....
Judgment:
1. This appeal is against the judgment and decree dated18-3-1970 of the Additional District Judge. Pondicherry in O. S. No. 160 of 1969. That was a suit filed by one Ghousia Begum, wife of Grochil Jahan Khan alias Kurshid Jan Pasha, the owner of the property acquired in pursuance of a notification made under Section 4(1) of the Land Acquisition Act, 1894, by the Administrator of the Union Territory of Pondicherry on 8-12-1964. The suit was for a permanent injunction restraining the Union Territory of Pondicherry from taking possession of the property in pursuance of the acquisition proceedings. Ghousia Begum claimed that she had a charge, as in a mortgage or "hypothecue legale" on the property for the mahar debt due to her from her husband. She filed the suit on 2-1-1969. nearly four months after the Code of Civil Procedure, 1908, was extended or made applicable to the Union Territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968, repealing the French Civil Procedure Code, She had not issued the suit notice as required by Section 80 of the Civil Procedure Code. 1908, before filing the suit. The respondent contended inter alia that the suit was not maintainable for want of the notice. The parties agreed that the issue, relating to the notice might be considered as a preleminary issue. The Court below found that the appellant, who could have filed the suit even before the Code of Civil Procedure, 1908 was extended to the Union Territory of Pondicherry as the Notification under Section 4(1) of the Land Acquisition Act was made on 10-11-1964 (sic. the correct date of the notification is 8-12-1964) itself and the cause of action alleged had arisen long prior to 2-1-1969. and who had filed the suit only under Order VII, Rule 1 of the Civil Procedure Code, 1908, was bound to issue the notice as required by Section 80 of the Code. It held that the suit was not maintainable in the absence of the notice and rejected the plaint under Order VII, Rule 11 of the Code. Hence the appeal. W. P. No. 2795 of 1970:--

2. This writ petition has come before us as in the opinion of Ramaprasada Rao, J., it involves a question of considerable constitutional importance. The writ petition is for the issue of a Writ of Mandamus or any other appropriate writ, direction or order directing the respondents, the Union Territory of Pondicherry and the Union of India, to release from acquisition the land and building acquired in pursuance of the notification dated 8-12-1964 made under Section 4(1) of the Land Acquisition Act, 1894.

3. An extent of 15084 sq it., equivalent to 13 ares 19 centiares, of land in No. 5, Ranga Pillai Street, Pondicherry Town, was sought to be acquired for putting up an auto telephone exchange for the Posts and Telegraphs Department at Pondicherry. The notification under Section 4(1) of the Land Acquisition Act was published in the Pondicherry State Gazette on 8-12-1964 in pursuance of the delegation of the powers of the Central Government to the Administrator of the Union Territory of Pondicherry, in the Ministry of Home Affiairs' proceedings No. G.II/Pondy/119/18/36 (S. R. O. 3165) dated 5-11-1963. The notification reads:

"In pursuance of Clause (1) of Article 239 of the Constitution, the President hereby directs that subject to his control and until further orders the Administrator of the Union Territory of Pondicherry shall exercise the powers and discharge the functions of the Central Government under (i) the Land Acquisition Act, 1894 (I of 1894) except those under the provisos to Sub-section (1) of Section 55, and

(ii) the Land Acquisition (Companies) Rules, 1963 within that Union Territory."

4. The enquiry under Section 5A of the Land Acquisition Act was held on 25-3-1965. The enquiry report shows that the owner Grochil Jahan Khan alias Kurshid Jan Pasha raised objection to the acquisition and that the Enquiry Officer was of the view that the objection was "neither considerable nor sustainable." The concerned officials inspected the land on 12-4-1965. The Government of the Union Territory of Pondicherry made the declaration under Section 6 of the Land Acquisition Act on 5-7-1965 to the effect that the land was required for a public purpose, being a purpose of the Union, to wit. for putting up an auto-exchange for the Posts and Telegraphs Department in Pondicherry Town. The President appears to have sanctioned the acquisition. The sanction has been communicated to the Post-Master General, Madras by the Director-General, Posts and Telegraphs Department, in his letter No. 45-4/63(XI)/ Land dated 26-7-1966.

5. Grochil Jahan Khan alias Kurshid Jan Pasha, as one of the owners of the land sought to be acquired, filed W. I. 3199 of 1965 (P) under Article 226 of the Constitution against the Union Territory of Pondicherry for the issue of a writ of certiorari quashing the declaration dated 5-7-1965 made under Section 6 of the Land Acquisition Act, on the main ground that after the publication of the notice under Section 4(1) of that Act he filed his objections and that the declaration under Section 6 of the Act has been made without holding any enquiry under Section 5A of the Act. Ramakrishnan, J., found that an enquiry under Section 5A had been actually held after service of notice on the petitioner Grochil Jahan Khan therein and that he had in fact filed a statement in that enquiry. Hs was of the opinion that the said petition had been filed without proper basis and accordingly be dismissed the petition on 15-10-1965 with costs.

6. The tenants of the land sought to be acquired presented a petition to the Lieutenant Governor of the Union Territory of Pondicherry, objecting to the acquisition of that property. The Chief of Contributions Department and Land Acquisition Officer observed that he would take note of those objections at the time of the award enquiry. He held the award enquiry subsequently on 28-1-1966. Grochil Jahan Khan did not participate in the award enquiry. Nor did he file any claim or petition in response to the notice under Sections 9(3) and 10 of the Land Acquisition Act. The Divisional Engineer, Telegraphs, Salem and the Building Overseer represented the Posts and Telegraphs Department in the award enquiry. The tenants, Chandru or Chandrasekaran. the proprietor of Raja Ganapathi Hotel, and one Alan Sandanaswami, a carpenter, participated in the award enquiry. Chandru raised objection to the acquisition. The Land Acquisition Officer has fixed the compensation for the land, well, trees and construction at Rs. 84.118/- and the usual solatium at Rs. 12,617.70. aggregating to Rs. 96,735.70, es payable to the owner Grochil Jahan Khan, in award No. 984 dated 9-2-1966. In pursuance of the award, the First Class Magistrate No. I, Pondicherry put the Land Acquisition Officer in possession of the property on 23-2-1966 as per order in C. M. P. No. 37 of 1965 filed under Section 47 of the Land Acquisition Act.

7. Grochil Jahan Khan's wife Ghousia Begum filed W. P. No. 361 of 1966 (P) in this Court, against the Union Territory of Pondicherry, under Article 226 of the Constitution, for the issue of a writ of certiorari quashing the said declaration dated 5-7-1965 made under Section 6 of the Land Acquisition Act evidently after the dismissal of W. P No. 3199 of 1965 (P) filed by her husband for a similar relief. She claimed in her petition to have a charge on the property acquired for her alimony and mahar and contended that she was consequently entitled to be served with notice in the acquisition proceedings individually and that no notice was served on her. She urged two other grounds in her petition, Ramakrishnan, J., dismissed that petition also with costs on 16-11-1968. Subsequently, the hotel building forming part of the acquired property was taken possession of on 11-4-1969 in pursuance of the order dated 24-12-1968 of the Sub-Divisional Magistrate Pondicherry. In four civil miscellaneous petitions of 1969; two of them filed by the Union Territory of Pondicherry and two by Ghousia Begum and Chandrasekharan (one of the proprietors of the hotel), the petitioner herein, this Court ordered that the status quo should be maintained until final orders were passed by the Vacation Court at Pondicherry in certain review petitions and connected petitions which were then pending before that Court.

8. Now, this writ petition has been filed by the said Chandrasekharan, for the issue of a writ of mandamus or any other appropriate writ, direction or order as aforesaid, directing the respondents to release from acquisition the land and building acquired in pursuance of the notification dated 8-12-1964 made under Section 4 of the Land Acquisition Act. The petitioner Chandrasekharan and his younger brother Vembu Iyer claimed to have taken on lease a one-room tenement and a vacant site appurtenant thereto, forming part of the property acquired in this case, from the owner Kurshid Jan Pasha, husband of Ghousia Begum, and to have started in that portion a hotel business under the name and style of Raia Ganapathi Refreshment Stall. The allegations made in Chandrasekharan's affidavit filed in support of the writ petition are briefly these: Chandrasekharan put up some additional constructions after the one-room tenement and appurtenant - land were taken on lease from Kurshid Jan Pasha. On 1-10-1962, he entered into a lease deed with the owner of the property in respect of five different contiguous items comprising of 2300 sq. ft- for a term of five years and put up a pucca masonry construction for running his business. As he was permitted to continue in possession even after the tease had expired on 1-10-1967, the lease stood renewed for a further period of five years under Article 1738 of the Code Civile of Pondicherry and he is entitled to be in possession of the property until 1972. Kurshid Jan Pasha filed W. P. 3199 of 1965 (P) in this Court for the issue of a writ of certiorari. That petition was dismissed on 15-10-1965. The mahar debt of Rs. 11,225/- due from Kurshid Jan Pasha to his wife Ghousia Begum was outstanding. Under Mohamedan Law, as applicable to Pondicherry, Ghousia Begum has a legal mortgage on her husband's immovable properties for the mahar amount due to her and she is entitled to object to the acquisition of the property, but had no notice of the acquisition proceedings She filed W. P. No-361 of 1966 (P) in this Court for the issue of a writ of certiorari, to quash the acquisition proceedings. On the dismissal of that petition, she filed W. A. No. 514 of 1968. The learned Judges, who dismissed that appeal on 19-12-1968, have observed that it was open to Ghousia Begum to pursue her remedy under the common law. She accordingly filed O. S. 160 of 1969 in the Court of the First Additional District Judge. Pondicherry for a permanent injunction restraining the first respondent, the Union Territory of Pondicherry, from taking possession of the property. In that suit, she filed I. A. No. 31 of 1969 for an interim injunction restraining the first respondent from taking possession of the hotel premises. That application was dismissed on 1-4-1969. Taking advantage of this situation the first respondent came to the hotel premises on 11-4-1969 and took forcible possession of the premises with all the moveables and cash and locked and sealed the premises. Ghousia Begum's suit O. S. No. 160 of 1969, for injunction was dismissed by the First Additional District Judge, Pondicherry on 12-3-1970 for want of notice under Section 80 of the Civil Procedure Code, and she has filed A. S. No. 167 of 1970 in this Court against that decree. This Court has granted an interim injunction in C. M. P Nos 4726 to 4728 of 1970. restraining the first respondent from demolishing the superstructures of the hotel premises. Though the petitioner is vitally interested in a portion of the property under acquisition, no notice of the enquiry, under Section 5A of the Land Acquisition Act was given to him before the declaration under Section 6 of the said Act was made. This was done deliberately to prevent him from questioning the validity of the acquisition proceedings.

9. The petitioner's right to carry on hotel business in pursuance of the licence granted by the Government of Pondicherry and Health Authorities and the goodwill he has earned are all his property. Sections 23 and 24 of the Land Acquisition Act do not provide for the payment of any compensation against the destruction of this property which would result from the acquisition. The provisions of the Land Acquisition Act are vio-lative of the petitioner's fundamental rights under Article 19(1)(f) and (g) of the Constitution of India, in so far as these provisions cast an unreasonable restriction on the petitioner's right to hold property and to carry on his trade and enable the Government to acquire his property without paying any compensation. The decision whether the land should be acquired or not is left to the subjective satisfaction of the appropriate Government. No reason need be given for such a decision and no right of appeal is provided against that decision and the entire property of a citizen can be taken away in the most high-handed fashion. Section 4(1) of the Land Acquisition Act does not provide for the service of any notice personally on the owner and occupier of the land. The publication of the notice in the Official Gazette in the conditions now prevailing in Tamil Nadu and the country as a whole is no notice. There is no procedure for the circulation of the Official Gazette throughout the State and it is troublesome to obtain copies thereof from the Government Press. There is no provision for serving copy of the declaration under Section 6 of the Land Acquisition Act on the owner or occupier of the land. Even the enauiry under Section 5A of the Act can be dispensed with. No test for deciding the question of urgency in the event of which the enquiry under that Section can be dispensed with has been laid down in the Act. The entire proceeding under Section 5A is a secret one in so far as no copy of the decision under that section is given to the party before it is submitted to the Government. The entire Land Acquisition Act is thus violative of Article 19(1)(f) and (g) of the Constitution of India.

10. The notification under Section 4(1) of the Land Acquisition Act in the present case is void in so far as it describes the property to be acquired as e house site when in fact the building in which the petitioner carries on the hotel business is standing on the land. It is apparent that the Lieutenant Governor of Pondicherry who has formed the opinion that the land should be acquired, was not even aware that there was a building with a running business on the land.

11. The acquisition in this case is for the construction of an auto-exchange for the Posts and Telegraphs Department, which is a purpose of the Union of India. The appropriate Government for the purpose of this section is the Union Government by reason of the definition in Section 3(33) of the Land Acquisition Act. Therefore, it is essential that the opinion under Section 4(1), the satisfaction under Section 6(1). the authorization under Section 7 and all other decisions to be taken under the Land Acquisition Act, have to be taken by the Union Government. But in the present case, these things have been done by the Lieutenant Governor of Pondicherry, apparently in pursuance of the delegation made in S. R. O. 3165 dated 5-11-1963, whereby the Government of India have delegated the powers and functions of that Government under the Land Acquisition Act on the Administrator of the Union Territory of Pondicherry, in respect of this acquisition under Article 239(1) of the Constitution of India. The delegation is violative of the Constitution of India and the provisions of the Land Acquisition Act, in so far as Article 239(1) does not authorize the Government of India to entrust its powers and functions in relation to matters other than the administration of the Union Territory of Pondicherry on the Administrator of that territory and the power to administer that territory does not include the power to acquire land for the purpose of the Union of India even if the land to be acquired is situate in that territory. The acquisition of the land in pursuance of such delegation is illegal. Hence the petition.

12. The respondents admit that the notification under Section 4 (11 of the Land Acquisition Act was made by the Lieutenant Governor of Pondicherry in pursuance of the delegation in S. R. O. 3165 dated 5-11-1963 of the powers and functions of the Central Government under the Land Acquisition Act except those under the provisos to Sub-section (1) of Section 55 of that Act and that the petitioner was running a hotel business on the land belonging to Kurshid Jan Pasha. They contend that an oral representation made by the petitioner during the enquiry by the Land Acquisition Officer was communicated to the requisitioning department and his request could not be complied with since it was reported that the entire land was required by the Posts and Telegraphs Department. His joint petition dated 15-1-1966 was rejected by the Land Acquisition Officer and he was informed that his request could not be acceded to. Three months' time was given to the petitioner to vacate the building and the site on which it stood. The petitioner did not accept the alternative accommodation which was offered to him and since he refused to vacate the building, possession of the property was taken on 8-5-1969 in the presence of the Executive Magistrate, Pondicherrv and the property was handed over to the Posts and Telegraphs Department. The petition is devoid of good faith and was filed after an enormous delay. The petitioner is guilty of suppression of material facts. The petition filed after a delay of four years after possession was taken is liable to be dismissed on that ground.

13. The petitioner was served with notice of the enquiries under Sections 5A and 9(3) of the Land Acquisition Act. He had knowledge of the affixture of the notification under Section 4(1) of the Act on the land on 23-12-1964. The Land Acquisition Act or the rules do not provide for service of individual notices or of copies of the decision under Section 5A or any other provision of the Act. Nothing prevented the petitioner from obtaining copies of these records which are public documents. He had requested the Government, by letter dated 3-3-1966, for time to deliver vacant possession of the land in his occupation and had asked for alternative accommodation.

14. The petitioner claims rights in the land as the lessee of the owner Kurshid Jan Pasha. W. P. 3199 of 1965 and W. P. 361 of 1966, filed by Kurshid Jan Pasha and his wife Ghousia Begum respectively, have been dismissed by this Court. Ghousia Begum's suit, O. S. 160 of 1969, filed for a permanent injunction restraining the Government from taking possession of the acquired property and for other reliefs has been dismissed by the Additional District Judge, Pondicherry. The petitioner cannot have any better claim than his lessor himself. He cannot be allowed to re-agitate the identical issues in these proceedings. The present petition is therefore barred by res judicata.

15. The power of the State to acquire land for public purposes is irrespective of the proprietary right or interest of the owner of the land and persons holding under him and they have only the right to compensation for the property acquired. The notification for the acquisition in this case was made in the Official Gazette on 8-12-1964 and also affixed on the premises on 23-12-1964. The petitioner was served with the notice of the award enquiry on 15-12-1965 before the award was passed on 28-1-1966 in pursuance whereof possession of the vacant land was taken on 23-2-1966, in the presence of the First Class Magistrate, Pondicherry. The petitioner did not claim any compensation for the superstructure etc. However, a compensation of Rs. 16,788/- has been awarded for the superstructure. The respondents do not admit that Ghousia Begum had any legal mortgage in respect of her alleged mahar debt. There is no inscription of any such mortgage in the register maintained by the buaureau di hypotheque (register of mortgages). The Supreme Court has repeatedly held that the provisions of the Land Acquisition Act are not violative of Article 19(1)(f) and (g) of the Constitution of India. Section 23 of the Act provides that if the person interested is compelled in consequence of the acquisition of the land to change his residence or place of business, the Court may take into consideration the reasonable expenses, if any, incidental thereto. Nothing prevented the petitioner from carrying on his business in another suitable place, and as a matter of fact he has not taken advantage of the alternative accommodation which was offered to be provided for him. Section 24 of the Land Acquisition Act provides that the Court shall not take into consideration any damages sustained by the person interested which, if caused by a private individual, could not render such person liable to suit. The petitioner is only a lessee for certain period and the owner is at liberty to renew or terminate the lease. If the owner could evict him on the ground of his requirement, he would have no right except to remove his superstructure. His only right in case of acquisition of the property is a right to compensation which has already been awarded in this case. He is estopped from seeking remedy in this court by way of any writ alleging infringement of fundamental rights under Article 19(1)(f) and (g) of the Constitution.

16. The contentions that the Government of India is the appropriate Government and that the proceedings initiated by the Administrator of the Union Territory of Pondicherry by virtue of the notification in S. R. O. 3165 dated 5-11-1963 are illegal and violative of Article 239(1) of the Constitution are ill-conceived, though no doubt under the Land Acquisition Act the Central Government is the appropriate Government for the Union purposes.

17. The functions to be exercised by the Central Government under the Land Acquisition Act are executive in nature and could be delegated to any appropriate agency. The Administrator of the Union Territory of Pondicherry. within the scope of the authority given to him for administering that territory, could be entrusted with other executive functions, viz., acquisition of land by notification, and when that is done, he acts as the Central Government within the meaning of Section 3(8)(iii) of the General Clauses Act, 1897.

By the issue of the notification by the President, the Land Acquisition Act must be deemed to have been amended pro tanto. The said notification is valid under Article 239 read with Article 53(1) of the Constitution. Even otherwise, in view of the definition of 'Central Government' in the General Clauses Act, the Administrator of the Union Territory of Pondicherry is entitled to exercise the powers of the Central Government. The petitioner is trying to cover once again the ground covered by the writ petitions mentioned above and he is not entitled to any relief.

18. The petitioner states in his reply affidavit that he does not remember whether he submitted a joint petition dated 15-1-1966, but has not received any reply dated 22-2-1966. He has not suppressed any material fact and there is no wanton delay in filing the petition. He was served with notice of the enquiry under Section 9(3), but not of the enquiry under Section 5A of the Land Acquisition Act. There is no question of res judicata. The petitioner is a person aggrieved by the acquisition and can challenge the acquisition proceedings.

19. The petitioner. Chandraseka-ran, and his brother Vembu Iyer are joint proprietors of Messrs. Raja Ganapathi Refreshment Stall, which was run in the building which stood on the land in No. 5, Ranga Pillai Street. Pondicherry Town, which was sought to be acquired for putting up an Auto-Telephone Exchange for the Post and Telegraphs Department. The petitioner has mentioned five grounds in the affidavit filed in support of the petition for the issue of a writ of mandamus or any other appropriate writ, direction or order directing the respondents, the Union Territory of Pondicherry end the Union of India, to release from the acquisition the land and the building acquired in pursuance of the notification dated 10-11-1964 which was published on 8-12-1964 under Section 4(1) of the Land Acquisition Act. The first ground is that the petitioner's right to carry on hotel business in pursuance of the licence granted by the Government of Pondicherry and the authorities of the Health Department of that Union Territory and the goodwill which he has earned are all 'property'. Sections 23 and 24 of the Land Acquisition Act do not provide for payment of any compensation for the destruction of this property which would result from the acquisition. The provisions of the Land Acquisition Act are violative of the petitioner's fundamental right under Article 19(1)(f) and (g) of the Constitution in so far as those provisions cast an unreasonable restriction on the petitioner's right to hold property and to carry on his trade and enable the Government to acquire the property without paying any compensation. The second ground is that the decision whether a land should be acquired or not is left to the subjective satisfaction of the appropriate Government, and no reason need be given for such a decision and no right of appeal is provided against that decision and the entire property of a citizen can be taken away in a most high-handed fashion. The third ground is that Section 4(1) of the Land Acquisition Act does not provide for service of any notice personally on the owner and the occupier of the land. The publication of the notification in the Official Gazette in the conditions now prevailing in Tamil Nadu or in the country is no notice at all. There is no procedure for circulating the gazette throughout the State and it is troublesome to obtain copies from the Government Press. There is no provision for serving any copy of the declaration under Section 6 of the Land Acquisition Act on the owner of or the occupier of the land. Even the enquiry under Section 5A of the Act can be dispensed with. No test for deciding the question of urgency, in the event of which the enquiry under that section can be dispensed with, has been laid down in the Act. The entire procedure under Section 5A is a secret one in so far as no copy of the decision under that Section is given to the party before it is submitted to the Government. The entire Land Acquisition Act is thus violative of Article 19(1) (f) and (g) of the Constitution. The fourth ground is that the notification under Section 4(1) of the Act in the present case is void in so far as it describes the property to be acquired as a house site, when in fact the building in which the petitioner is carrying on his hotel business is standing on the land. It is apparent that the Lt. Governor of Pondicherry, who formed the opinion that the land should be acquired, was not even aware of the fact that there was a building with a running business on the land. The fifth and the last ground is that the acquisition in this case is for the construction of Auto-Telephone Exchange for the Posts and Telegraphs Department, which is a purpose of the Union of India. The appropriate Government for the purpose of this acquisition is the Union Government by reason of the definition in Section 3(33) of the Land Acquisition Act-Therefore, it is essential that the opinion under Section 4(1) the satisfaction under Section 6(1), the authorisation under Section 7 and all other decisions to be taken under the Land Acquisition Act have to be taken by the Union Government. But in the present case, all these things have been done by the Lt. Governor of Pondicherry. apparently in pursuance of the delegation under S. R. O. No. 3165 dated 5-11-1963, whereby the Government of India have delegated the functions of that Government under the Land Acquisition Act on the Administrator of the Union Territory of Pondicherry in respect of this acquisition under Art. 239(1) of the Constitution. The delegation is violative of the Constitution of India and the provisions of the Land Acquisition Act in so far as Article 239 (11 does not authorise the Government of India to entrust its functions in relation to matters other than the administration of the Union Territory of Pondicherry on the administrator of that territory and the power to administer that territory does not include the power to acquire land for the purpose of the Union of India even if the land is situate in that territory. The acquisition of the land in pursuance of such a delegation is illegal.

20. We are of the opinion that there is no substance in the first four grounds urged by the petitioner. Section 23(1) of the Land Acquisition Act mentions the matters to be considered in determining the amount of compensation to be awarded for land acquired under the Act. The first is "the market value of the land at the date of the publication of the notification under Section 4, Subsection (1)". The second is "the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof." The third is "the damages (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land". The fourth is "the damage (it any) sustained by the person interested, at the time of the Collector's faking possession of the land, by reason of the acquisition injuriously affecting his other property, moveable or immovable, in any other manner, or his earnings". The fifth is that "if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change". The sixth and the last is "the damages (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land". . Sub-section (2) of Section 23 provides for the payment of solatium of 15 per cent, of the market value of the land in addition to the market value in consideration of the compulsory nature of the acquisition. Section 24 of the Land Acquisition Act lays down what should not be taken into consideration bv the Court in determining the compensation. One of them is any disinclination of the person interested to part with the land acquired. Therefore, under the provisions of the Land Acquisition Act it is not open to the petitioner to raise any objection to the acquisition on the ground that it affects his right to carry on his trade or business on the particular land acquired for the public purpose. The question whether a particular land should or should not be acquired for a public purpose is left, under Section 4(1) of the Land Acquisition Act, to the decision of the appropriate Government, which, when it is so satisfied, may make a declaration to that effect in the Official Gazette. The petitioner has not contended that Section 4 of the Act is ultra vires the central legislature. Sections 4(1), 5A and 6 (11 do not require service of the notification under Section 4 (11 and any notice personally for holding an enquiry under Section 5A and the making of declaration that the particular land is needed for a public purpose, on the parties interested in the land. Section 5-A(1) lays down that any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality as the case may be. Thereupon, the Collector, to whom the objections should be made, has to hold an enquiry and submit a report. If the appropriate Government is satisfied, after considering the report made under Section 5-A(2), that any particular land is needed for a public purpose, a declaration shall be made to that effect under the signature of the Secretary to such Government or of some officer duly authorised to certify the orders. Only Section 9 of the Act provides for the giving of the public notice by the Collector at the convenient places on or near the land to be -taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. Sub-section (3) of Section 9 provides for service of that notice on the occupier if any, of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the concerned revenue district. The petitioner has admitted in his reply affidavit that the notice contemplated under Section 9(3) of the Act has been served on him. The fact that the notification is said to have described the property sought to be acquired as only a building site, while, as a matter of fact, there were buildings on the land and compensation has been awarded for the same, would not, in our opinion, affect the acquisition proceedings, as 'land' would include any building standing thereon. The petitioner has not been deprived of his right to carry on his business by the acquisition in this case. Only he could not carry on his business in the property which, in public interest, has been acquired under the provisions of the Act. Therefore, there is no substance in the objection of the petitioner that any right has been affected by the acquisition. The learned Counsel for the petitioner perhaps thought that there is no substance in the first four grounds urged by the petitioner in the affidavit. That is perhaps the reason why only the fifth ground mentioned by the petitioner was urged before us and not the other four.

21. The President has. in the proceedings No. G2/Pond/119/18/63, Ministry of External Affairs, dated 5-11-1963 (hereinafter referred to as S. R. O. 3165) made the following notification regarding the delegation of his functions with regard to the acquisition in question:--

"In pursuance of Clause (1) of Article 239 of the Constitution, the President hereby directs that subject to his control and until further orders, the Administrator of the Union Territory of Pondi-cherry shall exercise the powers and discharge the functions of the Central Government under--

(i) the Land Acquisition Act (1894) (I of 1894), except those under the provisos to Sub-section (1) of Section 55; and

(ii) the Land Acquisition (Companies) Rules, 1963, within that Union Territory."

It is not disputed that in pursuance of this delegation, the notification under Section 4(1) of the Land Acquisition Act was approved by the Government of the Union Territory of Pondicherry in their Order No 1-41/63-SEI, Finance Department, dated 10-11-1964, and the approved notification was published in the Pondicherry State Gazette No. 49 dated 8-12-1964. All the subsequent proceedings in respect of the acquisition have been taken by the Lt. Governor of Pondicherry. Section 3(ee) of the Land Acquisition Act defines what "appropriate Government" means in relation to the acquisition of land and reads:--

"3 (ee). The expression 'appropriate Government' means, in relation to acquisition of land for purposes of the Union, the Central Government, and in relation to acquisition of land for any other purposes, the State Government."

Section 4(1) of the Act says that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The acquisition in this case is for the putting up of Auto-Telephone Exchange for the Posts and Telegraphs Department. Posts and Telegraphs, telephones, wireless, broadcasting and other like forms of communication constitute Item 31 of List I of the Seventh Schedule to the Constitution, Article 246(1) of the Constitution lays down that notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. List I of the Seventh Schedule relates to the Union Government. Therefore, the acquisition in this case for the Posts and Telegraphs and Telephones Department is for the purpose of the Central Government, and the 'appropriate Government' in Section 4(1) of the Act would, therefore, be the Central Government. Under Article 298 of the Constitution, the executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose. The respondents have admitted in their counter affidavit that the 'appropriate Government' in the instant case would be the Central Government. Therefore, as contended by the petitioner, the subjective satisfaction that the land in this case is needed for the public purpose should be of the Central Government, and then alone under Section 4(1) of the Land Acquisition Act, the notification to that effect has to be published in the Official Gazette. But, in the instant case, that notification has been made by the Lt. Governor of the Union Territory of Pondicherry by virtue of the said delegation in S. R. O. 3165.

22. The respondents contend that the functions to be exercised by the Central Government under the Land Acquisition Act are executive in nature and could be delegated to any appropriate agency and that the Administrator of the Union Territory of Pondicherry within the scope of the authority given to him for administering that territory could be entrusted with other executive functions, namely, land acquisition by notification. When this is done, he acts as the Central Government within the meaning of Section 3(8)(b)(iii) of the General Clauses Act. 1897. Thus they contend that the notification under Section 4 (11 is valid under Article 239 read with Article 53(1) of the Constitution. They further contend that even otherwise, in view of the definition of the 'Central Government' In the General Clauses Act the Administrator of the Union Territory of Pondicherry is entitled to exercise the powers of the Central Government. 'Competent authority', according to Section 2(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952, means any person or authority authorised by the Central Government by notification in the Official Gazette to perform the functions of the competent authority under this Act for such area as may be specified in the notification. Section 7(1) of that Act reads:--

"Where any property is subject to requisition, the Central Government may, if it is of opinion that it is necessary to acquire the property for a public purpose at any time, acquire such property by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in pursuance of this section:

Provided that before issuing such notice, the Central Government shall call upon the owner of, or any other person who, in the opinion of the Central Government, may be interested in such property to show cause why the property should not be acquired: and after considering the cause, if any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Central Government may pass such orders as it deems fit."

The procedure contemplated by Section 7(1) and the proviso has not been followed in this case, and the acquisition was not under the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952. Therefore the Lt. Governor of Pondicherry could not be stated to have been authorised by the Central Government to perform the functions of the competent authority under the Requisitioning and Acquisition of Immovable Property Act, 1952. The delegation in S. R. O. 3165 has been made in pursuance of Clause (1) of Article 239 of the Constitution. Article 239. which is in Part VIII relating to Union Territories, reads thus:--

"239. (1) Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.

(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers."

Under Article 239A, which was inserted by the Constitution (Fourteenth Amendment) Act, 1962, Parliament may. by law, create for any of the Union Territories mentioned in Clause (1) of that Article including the Union Territory of Pondicherry a body, whether elected or partly nominated and partly elected to function as a Legislature for the Union Territory, or a Council of Ministers or both with such constitution, powers and functions in each case, as may be specified in the law. Clause (2) of that Article lays down that any such law as is referred to in Clause (1) shall not be deemed to be an amendment to this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending the Constitution. Section 3(58) of the General Clauses Act defines 'State' as:--

"(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory".

In T.M. Kanniyan v. I.T. Officer. Pondicherry, , where it has been held that Union Territories are centrally administered through the President acting through an administrator, it is observed:--

"In Ram Kishore Sen v. Union of India, it was

pointed out that having regard to Article 367, the definition of 'State' in Section 3(58) of the General Clauses Act, 1897 applied for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under that definition, the expression 'State' as respects any period after the commencement of the Constitution (Seventh Amendment) Act. 1956' shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory. But this inclusive definition is repugnant to the subject and context of Article 246. There the expression 'State' means the States specified in the First Schedule".

Article 368 lays down how an amendment of the Constitution may be made, and reads:--

"368 (2). An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each house by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill."

Clauses (2) and (3) of Article 372 read:--

"372 (2). For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.

(3) Nothing in Clause (2) shall be deemed--

(a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or

(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause."

Relying on the definition of 'State' in Section 3(58) of the General Clauses Act it was argued in S.K. Singh v. V.V. Giri, that Union Territories are also States and consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the Electoral College. That contention has been repelled by the Supreme Court for two reasons in these words:--

"There are two reasons why, on the face of it the submission has to be rejected as untenable. Article 54, no doubt, lays down that all elected members of the Legislative Assemblies of the States are to be included in the Electoral College, but the word 'States' used in this Article cannot include Union Territories. It is true that, under Article 367, the General Clauses Act applied for interpretation of the Constitution as it applied for the interpretation of an Act of the Legislature of the Dominion of India; but that Act has been applied as it stood on 26th January. 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Article

372. The General Clauses Act. as it was in 1950 and as adapted or modified under Article 372, did not define 'State' so as to include a Union Territory. The Constitution was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Article 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary pr expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act. 1956. It was in exercise of this power under Article 372A that Section 3(58) of the General Clauses Act was amended, so that thereafter, 'States' as defined included Union Territories also. The new definition of 'State' in Section 3(58) of the General Clauses Act as a result of modifications and adaptations under Article 372A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Article 36V was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Article 372, will also apply to the interpretation of the Constitution. Since until its amendment in 1956, Section 3(58) of the General Clauses Act did not define 'State' as including Union Territories for purposes of interpretation of Article 54, the Union Territories cannot be treated as included in the word 'State'.

The second reason why it must be held that members of Legislatures of Union Territories cannot form part of the electoral college under Article 54 is that Article confines the electoral college to members of Legislative Assemblies of the States and there are no Legislative Assemblies in the Union Territories. Under Article 168 for every State there is to be a Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House it is to be known as the Legislative Assembly. On the face of it only members of Houses known as Legislative Assemblies Under Article 168 can be members of the Electoral College under Article

54. In the case of Union Territories, the provision for Legislatures is contained in Article 239A but that Article does not mention that any House of the Legislature created for any of the Union Territories will be known as a Legislative Assembly. All that that Article lays down is that Parliament may, by law, create a body whether elected or partly nominated and partly elected to function as a Legislature for the Union Territory. Such a Legislature created by Parliament is not a Legislative Assembly as contemplated by Article 168 or Article 54. Members of Legislatures created for Union Territories under Article 239A cannot therefore, be held to be members of Legislative Assemblies for States."

In view of this decision, it has to be held that the Union Territory of Pondicherry, which is centrally administered through the President acting through an administrator is not a State within the meaning of the Constitution. In Gobalousamy v. U. T. of Pondicherry, a Bench of this court has observed:

"The affairs of the Central Government can be different from the affairs of a Part C State and the President, as the head of a Part C State, occupies different position from that as the head of the Central Government. By a logical extension of this principle, one can hold that, when the President administers a Union Territory he occupies a position different from that of the head of the Central Government....."

Thus, it is clear that the President, while administering the Union Territory of Pondicherry by virtue of the powers conferred under Article 239, does not act as the head of the Central Government.

"What could be delegated by the President under Article 239 of the Constitution to an Administrator to be appointed by him with such designation as he may specify is the power to administer any Union Territory, as Clause (1) of that Article says:--

"Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify."

Article 239 does not provide for the delegation of anything concerning the administration of the Central Government to the Administrator appointed by the President under that Article for the administration of any Union Territory to such extent as the President thinks fit. As we have said. "Posts and Telegraphs, Telephones, wireless, broadcasting and other like forms of communication" constituting Item 31 of List I of the Seventh Schedule are Union subjects which could be administered only by the Central Government. The President, acting under Article 239 of the Constitution, cannot therefore delegate the powers and functions of the Central Government under the Land Acquisition Act for the acquisition of the land in question for the purpose of an Auto-Telephone Exchange for the Posts and Telegraphs Department at Pondicherry to the District Governor of Pondicherry, an Administrator appointed under that Article. It would follow that the notification under Section 4(1) of the Land Acquisition Act made for the purpose by the Lt. Governor of Pondicherry and the further proceedings taken by the Government of that Union Territory in pursuance of that notification are not valid.

23. But the petitioner could not succeed in this petition for the issue of a writ of mandamus or any other appropriate writ, direction or order directing the respondents to release from the acquisition the land and building acquired in pursuance of the said notification for three reasons. The first reason is that the lease of a part of the property acquired, to which extent alone the petitioner was interested in the property acquired on the date of the notification, commenced on 1-10-1962 and was admittedly for a term of five years, which had expired on 1-10-1967. The petitioner's case is that as he was permitted to continue in possession of the demised property with some additions, which he claims to have made to the same even after the expiry of the lease on 1-10-1967, the lease stands renewed for a further period of five years under Article 1738 of the Code Civil of Pondicherry and that he is entitled to be in possession until 1972. Article 1758 of the French Code Civil reads thus:

"1758. When a lease of furnished apartments provides that the rent is to be so much a year, the letting is held to be a letting year by year. When the rent is to be at so much a month, the letting is held to be by the month; and when the rent is so much a day, it is held to be a letting by the day. If there is nothing to show whether the property is let by the year, by the month, or by the day. then the letting is held to be made according to the custom of the place."

Article 1759, which follows that Article, and reads as follows can, in our opinion, only relate to furnished apartments:

"1759. If a tenant who has a written lease continues to have the enjoyment of the property after the expiration thereof without the lessor raising any objection, he will be held to occupy it on the same terms and for the term fixed by the customs of the place, and can no longer quit or be ejected except after the notice required by the custom of the place has been given."

The petitioner has not mentioned Article 1759 in the affidavit and has not pleaded any custom. It has not been contended that the single room which is stated tp have been let to him with some portion of the land acquired on 1-10-1962 was a furnished apartment. Having regard to that and the fact that the petitioner has not pleaded any custom it cannot be stated that Article 1759 which was mentioned by the learned Counsel for the petitioner in the course of his arguments, would apply. Article 1737 reads thus:

"1737. The lease, if made in writing, comes to an end, ipso facto at the end of the period fixed, without it being necessary to give notice to quit."

Article 1738, which follows that Article, reads:--

"If the lessee remains and is left in possession at the end of the term mentioned in the written lease, a new letting takes place, the terms of which are governed by the Article relating to leases not made in writing."

Admittedly, the lease, which had come to an end under Article 1737 on 1-10-1967, has continued only for a further period of five years under Article 1738 and had come to an end on 1-10-1972. The petitioner has, therefore, no locus stendi now to maintain the petition.

24. The second reason is that the notification under Section 4(1) was made in this case on 8-12-1964. The report of the enquiry made under Section 5A of the Act shows that the owner Grochil Jahan Khan participated in the enquiry and raised an objection to the proposed acquisition and that his objection had been held by the concerned officer to be not sustainable. Subsequently, the concerned officials including the representative of the Posts and Telegraphs Department inspected the property on 12-4-1965. It is seen from the general inspection report that measurements were taken and verified with the sketch and fresh measurements were taken and the discrepancies were jointly noted and the sketch was corrected. The petitioner, who was carrying on his hotel business in the premises, must have been aware of the enquiry conducted under Section 5A on 25-3-1965 or at any rate the joint inspection made on 12-4-1965. The declaration under Section 6 of the Land Acquisition Act was made on 5-7-1965 and the petitioner was admittedly served with the notice under the Section 9(3) of the Land Acquisition Act. Possession of the land was taken by the Land Acquisition Officer on 23-2-1966, in pursuance of the proceedings taken in C. M. P. No. 37 of 1965 under Section 47 of the Land Acquisition Act. The records show that in a civil miscellaneous petition filed in 1969 by the petitioner this court ordered that the status quo shall be maintained until final orders were passed by the vacation court at Pondicherry in certain revision and connected petitions which were then pending before that court. The records further show that possession of the portion of the superstructure in which the petitioner was interested was admittedly taken on 11-4-1969 with the help of the police to the knowledge of the petitioner's brother Vembu Iyer, who was in charge of Raja Gana Pathi Refreshment Stall at that time. Before this was done, it is seen from the records that the petitioner had been served on 7-2-1966 with a notice by registered post directing him to vacate and deliver possession of the building occupied by him before the evening of 25-3-1966. It is also seen from the records that the petitioner and the other tenants Alan Sandanasami and Devaraju had submitted a petition dated 3-3-1966 to the Prime Minister and the Minister for Transport and Communication. Government of India, requesting that an alternative site may be allotted to them for carrying on their business and to give them sufficient time to vacate until they get the alternative site and put up their building. The alternative accommodation was offered to the petitioner, who had been informed by letter dated 5-12-1968 that he would be provided with an alternative site for running the hotel either in the Tourist Home or in the New Assembly premises whichever he may choose. The petitioner does not appear to have taken advantage of this offer. The owner of the land Grochil Jahan Khan filed W. P. No. 3199 of 1665 for quashing the declaration dated 5-7-1965 made under Section 6 of the Land Acquisition Act. That petition was dismissed by Ramakrishnan, J., on 15-10-1965 on the ground that it had been filed without proper basis. Subsequently, Ghousia Begum, wife of Grochil Jahan Khan filed W. P. No. 361 of 1966 in this court for the issue of a writ of certiorari quashing the very same declaration dated 5-7-1965. That petition also has been dismissed by Ramakrishnan, J., on 16-11-1968. Writ Appeal No. 514 of 1968 filed against the dismissal of W. P- No. 361 of 1966 has been dismissed by this court on 19-12-1968 with an observation that it was open to Ghousia Begum, who claimed some mahar right, to pursue her remedy under the common law. She accordingly filed O S. No. 160 of 1969 in the court of the First Additional District Judge, Pondicherry, for a permanent injunction restraining the first respondent from taking possession of the property. That suit was dismissed on 18-3-1970. A. S. No. 167 of 1970 has been filed against that decree. The petitioner has come forward with this petition only in 1970 after a delay of four years from the date of taking possession of the land and over five years from the date of the declaration under Section 6. Therefore, we are of the opinion that the petitioner is not entitled to any relief on the ground of the inordinate delay.

25. The third reason is that the owner Grochil Jahan Khan had filed W. P. No. 3199 of 1965 on 29-7-1965. This was after the joint inspection of the property made on 12-4-1965 about which the petitioner must have teen aware. The petitioner had not taken any steps till then, and the order passed in W. P. No. 3199 of 1965 on 15-10-1965 against the owner of the property, the petitioner's lessor, has become final. The petitioner must be deemed to have been aware of the notification under Section 4(1) of the Land Acquisition Act published on 8-12-1964, the enquiry under Section 5A conducted on 25-3-1965, in which the owner participated as mentioned above, and the declaration under Section 6 dated 16-7-1965 in pursuance of the report which followed the enquiry under Section 5A of the Act, In State of Bihar v. Motilal, (AIR 1964 Pat 127), it is observed at page 134:--

"The words, "right to sue" means a right to seek relief and there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement by the defendant. The question as to when a right to sue arises depends mostly on the facts and circumstances of each case".

The Privy Council has observed in Bolo v. Koklan. (AIR 1930 PC 270):

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted." Reference is made to this decision of the Privy Council in Rukhmabai v. Lakshminarayan, where it is observed at page 349:--

"The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."

The notification under Section 4(1) of the Act had been made on 8-12-1964 and further steps were being taken thereafter, and it cannot be stated that the petitioner was not under any impression that there was no effective threat to the right claimed by him by the acquisition proceedings. Therefore, he could have agitated the right claimed by him even when his lessor Grochil Jahan Khan filed W. P. No. 3199 of 1965 on 29-7-1965 itself. He has not done so. and the principle of constructive res judicata applies, and it is not open to the petitioner to agitate the matter once over again even though it may be on some other ground which was not put forward by his lessor. Therefore, we are of the opinion that the petitioner is not entitled to any relief. The petition fails and is dismissed with costs. Counsel's fee Rs. 250/-. A. S. No. 167 of 1970:

26. Ghousia Begum had not given the notice required by Section 80 of the Code of Civil Procedure before she filed O. S. No. 160 of 1969 on 2-1-1969 in the Court of the Additional District Judge, Pondicherry, for a permanent injunction restraining the Union Territory of Pondicherry, from taking possession of the property acquired on the ground that she had a charge on the property for the mahar debt due to her. That suit was dismissed, as we have said, on the ground that the said notice has not been given the issue regarding that question having been tried by the District Judge as a preliminary issue by consent of the parties. Section 9 of the Pondicherry (Administration) Act, 1962, has extended the jurisdiction of this Court to Pondicherry as from 6-11-1962. Section 8 of that Act provides for the Central Government by notification in the official gazette extending, with such restrictions and modifications as it thinks fit, to Pondicherry any enactment which is in force in a State at the date of the notification. Section 3(1) of the Pondicherry (Extension of Laws) Act, 1968, which received the assent of the President on 24-5-1968 and was published on that date, says that the Acts specified in Part I of the schedule as they are generally in force in the territories to which they extend and the Acts specified in Part II of the schedules as they were in force on the 1st day of August, 1966, in the State or Union Territory mentioned there against shall extend to Pondicherry, subject to the modifications, if any, specified in the schedule. The Code of Civil Procedure, 1908, is one of the Acts mentioned in Part II of the schedule. Column 2 of that schedule provides for that Code being applicable to Pondicherry as it was in force in the State of Madras on the first day of August, 1966. The modification adds Section 45-A after Section 45. and Section 45-A deals with execution of decrees etc., passed or made before the commencement of the Code in Pondicherry. The Code of Civil Procedure, as it was in force in the State of Madras on the first day of August, 1966 has thus been made applicable to Pondicherry with effect from 24-5-1968. The learned Counsel for the appellant would, however, contend that the appellant need not give the notice required by Section 80 of that Code having regard to Clause (d) of Sub-section (2) of Section 4 of the Pondicherry (Extension of Laws) Act, 1968. Section 4, which deals with repeal and saving, reads, thus:--

"4 (1). Any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof (except in so far as such law continues to be applicable to Renoncants) shall stand repealed as from the coming into force of such Act in Pondicherry.

(2) Nothing in Sub-section (I) shall affect--(a) the previous operation of any law so repealed or anything duly done or suffered thereunder: or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed: or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed:

Provided that anything done pr any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, permit or licence granted, or registration effected under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act."

We do not agree with the learned Counsel for the appellant that by reason of Clause (d) of Sub-section (2t of Section 4 of the Pondicherry (Extension of Laws) Act, 1968, and the proviso it was open to the appellant to file the suit without issuing the notice required by Section 80 of the Code of Civil Procedure notwithstanding the feet that that Code, as it was in force in the State of Madras on the first day of August 1966, has been made applicable to Pondicherry with effect from 24-5-1968. The Indian Stamp Act, 1899, as it was in force in the State of Madras on the 1st day of August, 1966 with certain modifications, and the Court Pees Act, 1870 as it was in force in the Union Territory of Andaman and Nicobar Islands on the 1st day of August. 1966, with certain modifications, are also in Part II of the Schedule to the Pondicherry (Extension of Laws) Act, 1968, and they also have been made applicable to Pondicherry with effect from 24-5-1968. It cannot be stated that it was open to a party who filed his suit or proceeding after 24-5-1968, to continue to pay the stamp duty and court-fees which were payable on documents and in respect of suits and other proceedings in Pondicherry prior to 24-5-1968 ignoring the provisions of the Indian Stamp Act and the Court Fees Act which have been made applicable to Pondicherry having regard to Section 4(2)(d) and the proviso. The learned Counsel for the appellant relied upon Garikapati v. Subbiah Choudhry, . There, the

Court, Venkatarama Ayyar. J., dissenting, observed:--

"From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit;

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal;

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

This decision, in our view, does not help the appellant. In Advance Insurance Co. v. Gurudasmal, it is observed that

provisions of law must be read as far as possible with a view to their validity and not to render them invalid. The Code of Civil Procedure as in force in the State of Madras on the 1st day of August. 1966, has been made applicable to the Union Territory of Pondicherry with effect from 24-5-1968 by Section 3 of the Pondicherry (Extension of Laws) Act, 1968. Section 4(2)(d) of the same Act no doubt says that nothing in Sub-section (1) shall affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. Sub-section (1) says that any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof except in so far as such law continues to be applicable to Renoncants shall stand repealed as from the coming into force of such Act in Pondicherry. The provisions of the Pondicherry (Extension of Laws) Act, 1968, as far as possible must be read with a view to their validity and not to render them invalid. If this is done, it will be clear that the appellant would be bound by the provisions of Section 80 of the Code of Civil Procedure which is a procedural matter, after 25-4-1968 As a matter of fact, she had filed the suit only under Order VII of the Code of Civil Procedure. Therefore, it is not open for her to contend that she was not bound to issue the notice required by Section 80 of the same Code before instituting the suit. Accordingly, we agree with the Court below and hold that the suit is not maintainable for want of notice under Section 80 of the Code of Civil Procedure. The appeal is dismissed with costs.


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