M.M. Ismail, J.
1. The petitioners herein are owners of a cocoanut garden bearing R.S.No. 3939 of Tondiarpet of an extent of 5 cawnies 15 grounds 354 square feet. The Collector of Madras by an order dated 3rd March, 1944, acting under Rule 75-A of the Defence of India Rules requisitioned the said cocoanut garden for securing the efficient prosecution of the war. Subsequently after the World War was over the petitioners had been repeatedly requesting the respondents herein for release of the cocoanut garden and the respondents not having released the said property they have filed the present writ petition praying for the issue of a writ of mandamus directing the respondent herein to release to the petitioners the lands in R.S.No. 3939 in Tondiarpet, Madras, measuring 135 grounds and 354 square feet from requisition.
2. I have already referred to the fact that the order of the Collector dated 3rd March, 1944, was passed under Rule 75-A of the Defence of India Rules. Sub-rule (1) of that rule is as follows:
If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community that Government may by order in writing requisition any property movable or immovable, or may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning.
There is a proviso to the sub-rule. But it is unnecessary for the purpose of this case to refer to that proviso. This rule was originally framed under the Defence of India Ordinances, 1939 which was replaced by the Defence of India Act, 1939. After the expiration of the Defence of India Act, 1939, Central Act XVII of 1947 known as 'the Requisitioning of Land (Continuance of Powers) Act, 1947 was passed. Section 3 of this Act provided:
Notwithstanding the expiration of the said Act and the rules made thereunder the requisitioned lands shall continue to be subject to requisition until the expiry of the said Act and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient; provided that the appropriate Government may at any time release from requisition any requisitioned land.
3. This Act in turn was replaced by the Requisitioning and Acquisitioning of Immovable Property Act, 1952 (Central Act XXX of 1952) Section 24 of this Act repealed the Requisitioned Land (Continuance of Powers) Act, 1947, Central Act XVII of 1947. But Sub-section (2) of this section provided that any property which immediately before such repeal was subject to the requisition under the provisions of the said Act shall on the commencement of this Act be deemed to be property requisitioned under Section 3 of this Act and all the provisions of this Act shall apply accordingly. Section 6 of this Act said that the Central Government may at any time release from requisition any property requisitioned under this Act and shall as far as possible restore the property in as good a condition as it was when possession thereof was taken, subject only to changes caused by reasonable wear and tear and irresitible force. The effect of all these provisions came up for consideration before the Supreme Court in Union of India v. Ram Kanwar : 3SCR313 . The Supreme Court, on a consideration of all these provisions came to the conclusion that once the property was requisitioned under Rule 75-A of the Defence of India Rules for a particular purpose the power conferred on the Central Government under Central Act XVII of 1947 to use the land in such a manner as may appear to the Central Government to be expedient has to be exercised only with reference to the original purpose for which the land as acquired under Rule 75-A of the Defence of India Rules, and it has no wider power of use than what was contemplated by the Defence of India Rules and the purpose for which the property itself was requisitioned. This is what the Supreme Court had to say in this behalf:
Therefore the question is what was the effect of the earlier requisition under the Rules as well as under the 1947 Act. If the requisition originally made was for purposes mentioned in Rule 75 of the Rules and continued under Section 3 of the 1947 Act only for the said purposes, under Section 3 of the 1952 Act the requisition of the property made for the said purposes would be deemed to be requisition for a public purpose being a purpose of the Union. But the validity of the requisition could be judged on the basis of the pre-existing statutes and not on the basis of the provisions of the sections of the 1952 Act. The result is that the requisition of a property made for public purposes under Rule 75-A of the Rules would be deemed to be a requisition under Section 3 of the Act and all the provisions of the Act would apply accordingly. It is said that under the rules a requisition need not have been made for a public purpose; but the expressed provisions of Rule 75-A of the Rules negative this contention. Though no notice stating the purpose is contemplated under Rule 75-A of the Rules, the requisition could have been made only for the four public purposes mentioned in Rule 75-A of the Rules. We have pointed out that the requisition for the said purposes only continued under the 1947 Act. The purpose for which it was requisitioned must, therefore, be deemed to be the purposes mentioned in Rule 75-A of the Rules.
With regard to the use of the expression 'expedient' the Supreme Court pointed out:
The expediency in the context can only mean expediency in relation to the purposes for which the property was requisitioned. The wide import of the word ' expedient' Sub-section (2) must necessarily be limited to the purposes under Sub-section (1) as otherwise we would be attributing to the Legislature an intention to confer a power on the Government to requisition a property of false pretences. Act XVII of 1947 was enacted to provide for the continuance of certain emergency powers in relating to land which, when the Defence of India Act expired, Was subject to requisition effected under the rules made under that Act. ' Requisitioned land' was defined to mean an immovable property which at the commencement of the said Act was subject to any requisition effected under the said Rules. Under Section 3 thereof, notwithstanding the expiration of the said Act and the rules made thereunder the requisitioned land was continued to be subject to requisition until the expiry of the said Act and it authorised the appropriate Government 'to use or deal with any requisitioned land in such manner as may appear to it to be expedient'. The object of the Act was only to continue the requisition after the expiry of the life of the Defence of India Act and not to enlarge the powers of the Government in respect of the requisitioned land. The land requisitioned under the Ordinance continued to be subject to the requisition. The expression ' continue' clearly brings out the idea that the scope of the section was only to give a further lease of life to the order which otherwise would have expired. The words ' may use or deal with any requisitioned land in such manner as may appear to it to be expedient' were only a repetition of the words in Rule 75-A (2) of the Rules conferring authority on the Government to do certain things in respect of requisition; and the scope of the authority under Section 3 of the 1947 Act must be similar to that under Rule 75-A (2) of the Rules. Under Section 24 (1) of the 1952 Act, the 1947 Act was repealed. Under subsection (2) thereof, it was provided that on the commencement of the Act the properties which were subject to requisition under the provisions of the earlier Act shall be deemed to be property requisitioned under Section 3 of the Act and that all the provisions of the Act shall apply accordingly.
In this particular case, as I pointed out already, the order of requisition, dated 3rd March, 1944 expressly stated the purpose for which it was requisitioned, namely, 'for securing the efficient prosecution of the war'. Admittedly that purpose came to an end when the Second World War ended. If so, in the light of the judgment of the Supreme Court, the respondents herein have no right to retain the land in their possession.
4. In the counter-affidavit filed in this writ petition it is contended on behalf of the respondents,
that the land in question Were requisitioned not merely for setting up a Jerrican Factory but also for housing the personnel who are operating the said factory. It should be noted that the ultimate object was to provide for storage-filling of petrol for Defence purposes and to provide for quarters for Military personnel engaged in that process. Hence, the storage-filling of petrol is still being continued and quarters have also been constructed for the personnel. Hence it cannot be said that neither the general purpose of requisition nor the particular purpose of requisition now exist.
I am of the view that this contention of the respondents, as stated in the counter-affidavit, does not answer the point. As the Supreme Court pointed out there are four purposes enumerated in Rule 75-A of the Defence of India Rules and out of the four purposes, one was 'securing the efficient prosecution of the War' and it is for this purpose the land in question was requisitioned. Once that purpose does not subsist--admittedly the purpose does not subsist today--it is not open to the respondents herein to retain the land in their possession and to put it to some other use. The contention of the respondents is that it is still used in connection with the Defence of India. But that is not the original purpose for which the land was requisitioned because Rule 75-A itself distinguishes between 'for securing the defence of British India' and for securing efficient prosecution of the war, and having requisitioned the land in question for one purpose it is not open to the respondents herein to say that they will continue to retain possession of the land, even though the original purpose is over, but for some other purpose. This is exactly what the Supreme Court pointed out as requistioning the land on false pretences. In view of these considerations I am of the opinion that the respondents have no right whatever to retain possession of the petitioner's land requisitioned by the order, dated 3rd March, 1944, under Rule 75-A of the Defence of India Rules. In view of the judgment of the Supreme Court referred to above the respondents cannot really have any defence to this writ petition.
5. However it was contended on behalf of the respondents that the lands in the possession of the respondents herein is only an extent of 107 grounds and not an extent of 135 grounds 364 square feet as contended by the petitioners herein. In support of the respective contentions, the learned Counsel for the petitioners relies on original order of requisition itself in which, in the schedule, the extent of the land is given, as mentioned already, as 5 cawnies 15 grounds 354 square feet on the other hand, the learned Counsel for the respondents, relies on the discharge certificate said to have been signed by the petitioners themselves and states that the extent of the land is only 107 grounds. In these proceedings under Article 226 of the Constitution of India, certainly I cannot decide this controversy as to what exactly is the extent of the lands in possession of the respondents herein. Prima facie the order of requisition refers to the extent of the lands as 5 cawnies 15 grounds 354 square feet. Whether subsequent to the requisition any portion of the land was handed over to the petitioners or any portion of the land was not taken possession of by the respondent herein are all matters to be established in appropriate proceedings. But all that I am interested in holding in this particular writ petition is, whatever land the respondents have requisitioned by the order, dated 3rd March, 1944 in exercise of the powers conferred by Rule 75-A of the Defence of India Rules, they are not entitled to retain possession of and they are bound to return possession to the petitioners herein. It is on this basis that the writ petition is allowed and a writ of mandamus will issue. I make it clear that I am not deciding one way or the other as to the correctness or otherwise of the respective contentions of the parties as to the actual extent of the land taken possession of and now are in the possession of the respondents. No costs.