{"id":16437,"date":"1952-10-27T00:00:00","date_gmt":"1952-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hira-singh-bam-vs-the-state-of-himachal-pradesh-and-on-27-october-1952"},"modified":"2018-09-27T19:15:57","modified_gmt":"2018-09-27T13:45:57","slug":"hira-singh-bam-vs-the-state-of-himachal-pradesh-and-on-27-october-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hira-singh-bam-vs-the-state-of-himachal-pradesh-and-on-27-october-1952","title":{"rendered":"Hira Singh Bam vs The State Of Himachal Pradesh And &#8230; on 27 October, 1952"},"content":{"rendered":"<div class=\"docsource_main\">Himachal Pradesh High Court<\/div>\n<div class=\"doc_title\">Hira Singh Bam vs The State Of Himachal Pradesh And &#8230; on 27 October, 1952<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1953 HP 57<\/div>\n<div class=\"doc_bench\">Bench: C C.<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Chowdhry, J.C.<\/p>\n<p> (1) The petitioner purchased a house in Nahan, known as the &#8220;Rose View&#8221;, from the ex-Government of Sirmur for Rs. 8,000\/- on 28-1-2005 B., corresponding to 9-4-1948, and he has ever since been in possession of the same.\n<\/p>\n<p> (2) One of the terms of the sale-deed was that in case of need the Ruler will have the right to repurchase the house for Rs. 8,000\/-without any objection by the vendee. On 2-7-1952 the Deputy Commissioner, Sirmur at Nahan served the petitioner with a notice. Reference was made to the terms of the petitioner&#8217;s sale-deed, and he was informed that the house was urgently required by the military authorities. The Deputy Commissioner then went on to say that he had been directed to ask the petitioner to vacate the house before 31-7-1952 and hand over possession of the same to Lt.-Colonel Onkar Chand, Commanding Officer Military Station, Nahan. It was also stated in the communication that after handing over possession the petitioner might make a demand for refund of sale price to the proper authorities.\n<\/p>\n<p>(3)  On  11-7-1952 the petitioner made a representation      to      the      Lieutenant-Governor through   the   Chief   Minister,   Himachal  Pradesh, contesting his liability to eviction from the house, and prayed that the_ said communication from the Deputy Commissioner be cancelled and his possession of the house not interfered with. The petitioner has vouchsafed no reply to the representation, and as the time limit for vacating the house was drawing near, he preferred the present application under Article 226, Constitution of India on 28-7-1952, complaining that the said action of the Government amounted to an infringement of the fundamental right of the petitioner under Article 31 of the Constitution, and praying for the issue of such directions and orders to the respondents as might be just and expedient to prevent the respondents from interfering with the petitioner&#8217;s possession and enjoyment of the property in question. By an interim order enforcement of the said order of the Deputy Commissioner was stayed.\n<\/p>\n<p>(4) The application has been resisted by the respondents, the State of Himachal Pradesh and the Deputy Commissioner of Sirmur at Nahan. Arguments were advanced on both sides on the question of whether the State of Himachal Pradesh, as successor-in-interest of the ex-State of Nahan, was entitled to enforce against the petitioner the said term in the sale-deed relating to the vendor&#8217;s right of repurchase. In the view that I take of the matter, however, it is not necessary to express any opinion on the point. Indeed, in view of a possible litigation between the parties any such expression of opinion will be improper. The only question that calls for determination in this case is whether any fundamental right of the petitioner guaranteed to him under the Constitution has been infringed by the manner in which he was required by the respondents to vacate the house in dispute, and, if so, whether the petitioner is entitled to any, if so what, relief.\n<\/p>\n<p>(5) It was argued by the learned Government Advocate on behalf of the respondents that the mere fact that the petitioner claims the right to undisturbed proprietary possession of the house in dispute does not amount to any fundamental right. That is however a misinterpretation of the petitioner&#8217;s claim. The petitioner seeks to enforce the fundamental right contained in Article 31(1) of the Constitution, which lays down that no person shall be deprived of his property save by authority of law. Subject to whether the State of Himachal Pradesh has, or has not, a right of repurchase under the said clause of the sale-deed, it is conceded that the petitioner is in proprietary possession of the house in dispute. That being so, the said Article of the Constitution guarantees to the petitioner the fundamental right of not being deprived of the property save by authority of law.\n<\/p>\n<p>(6) The next question that arises, therefore, is whether the said fundamental right is being threatened, or, in other words, whether the petitioner is threatened with deprivation of the property save by authority of law. The learned Government Advocate argued that due merely to the issue of the said communication by the Deputy Commissioner to the petitioner it could not be said that the petitioner&#8217;s right had been threatened. He contended that the said communication by itself, without anything more, did not give the petitioner any right to come to this Court and the present petition under Article 226 of the Constitution was therefore premature. He was asked what he meant by the words &#8220;without anything more.&#8221; The respondents&#8217; written reply is quite silent on the point, and the learned Government Advocate was not prepared to say that the said communication of the Deputy Commissioner was merely a prelude to the institution of a suit by the State against the petitioner. All that the learned Government Advocate stated was that the State sought to enforce the said term of the sale-deed. But he was not prepared to give out what action would the State have taken if the petitioner did not comply with the said communication of the Deputy Commissioner. The only other point specifically urged by the learned Government Advocate was that it was for the petitioner, and not for the State, to go to Court, and that, if the petitioner agreed to do so, the State would not dispossess him of the house in question during the period of notice under Section 80, Civil P. C., and for a reasonable time thereafter uptill the institution of a suit by him to ventilate his so-called right to remain in possession of the house despite the said term of the sale-deed.\n<\/p>\n<p>(7) Although the point has not been cleared in so many words by the respondents in their reply, or by the Government Advocate in his arguments, the position is quite clear. The respondents do not want to go to Court to enforce the said right of repurchase, but they want the petitioner to do so in order to establish that the State of Himachal Pradesh is not entitled to enforce the said right. Furthermore, should the petitioner choose not to go to Court or to vacate the house in compliance with the said communication of the Deputy Commissioner, he would be dispossessed. The learned Government Advocate did not, as indeed he could not, point out to me any rule or law under which the State could dispossess the petitioner without first having the liability of the petitioner for dispossession adjudicated upon in a Court of law. It is manifest therefore that the respondents want to take the law into their own hands. This they are certainly not entitled to do, and in this respect it makes no difference that this violation of an elementary principle of jurisprudence emanates from the executive rather than from an individual citizen. In this connection I might do worse than quote the following observations of Lord Atkin in &#8211;&#8216;Eshugbayi v. Government of Nigeria&#8217;, AIR 1931 PC 248, which, though used in another connection, are equally appropriate to the facts of the present case :\n<\/p>\n<p>  &#8220;As   the executive he (the Governor of Nigeria) can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.&#8221;\n<\/p>\n<p>In the present case the State of Himachal Pradesh seeks to deprive the petitioner of his property otherwise than by supporting the legality of such an action before a Court of justice and in pursuance of no power given to it by law. In other words, the State is depriving the petitioner of his property save by authority of law, and therefore infringing the fundamental right guaranteed to the petitioner, by Article  31(1)  of the Constitution.\n<\/p>\n<p>(8) The next question that arises is whether, in view of the above finding, the petitioner is entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. The alternative remedy by an ordinary suit in a Court of law could not have been equally efficacious since such a suit could not have been filed without a prior notice to the State under Section 80, Civil P. C., and the petitioner, who was given less than a month&#8217;s notice to vacate, would have been dispossessed of the house before the expiry of the period of notice. Apart from that, this being a case where enforcement of a fundamental right under the Constitution was involved, an application to this Court under Article 226 of the Constitution was the only appropriate remedy open to the petitioner. Had the petitioner filed a suit in a subordinate Court, it would have involved a substantial question of law as to the interpretation of Article 31(1) of the Constitution the determination of which would have been necessary for the disposal of the case, and therefore it would have been incumbent on this Court, under Article 228 of the Constitution, to withdraw the case. Indeed, in cases of invasion of fundamental rights it has been held to be not merely a power but a duty of the High Court to grant relief by the issue of prerogative writs under Article 226. &#8212; &#8216;Sayeedah Khatoon v. State of Bihar&#8217;, AIR 1951 Pat 434 (at p. 436).\n<\/p>\n<p>(9)  The facts of the present case are analogous to those of &#8212; &#8216;G. Kistareddy v. Commr. of City Police, Hyderabad&#8217;, AIR 1952 Hyd. 36. That   was  a   case   where   the petitioner   had been in possession of the property in dispute, which he had purchased in  a  court sale, but the petitioner   was  dispossessed   of the   same under orders of the Commissioner of the City Police   of   Hyderabad    after   the   issue  of   a notice to the petitioner to vacate the property by a certain date.    The plea of the respondent that possession  was taken over by the police with  consent   was   repelled,   and  their   Lordships agreed with the contention put forward on behalf of the petitioner   that if the   police had   any    claim   to   the   property   the  matter should  have been  litigated   in  ordinary   civil Courts as between party and party instead of recourse  being had   to  forceful   dispossession. They   held therefore   that the   action   of   the police   amounted   to   an   infringement   of the rights   of   property   guaranteed   to   the    petitioner under Art, 31(1)  of the Constitution. It was further held as follows : &#8220;The duty to  abide by  the Constitution and to maintain the rule of law is cast upon all the three branches of the State i.e., the legislature, executive   and the   judiciary,   see &#8211;&#8216;Gesulal v.  State of  Hyderabad&#8217;,  AIR   1951 Hyd 89  (FB)  at p. 91 column 1 para 9 and if the first two  in  any way  transgress the limits  of the Constitution or violate any of the fundamental rights, it is the duty of the Courts to declare it so. Naturally, the High Court   will   be  very   reluctant  to   interfere with  an order of the executive unless it is fully satisfied that the action of the executive   cannot  in   any  way   be  supported   in view of  the provisions  of the  Constitution. The   High   Court  will   exercise  the   utmost, restraint in interfering with the acts of the executive.     But   where   the   High   Court   is satisfied   that the   fundamental rights   guaranteed by the Constitution have been violated by any act or order of the executive it is the sacred, duty of the High Court to set it aside, vide &#8212; &#8216;Mahbub Begum v. Hyderabad State&#8217;, AIR 1951 Hyd 1 (FB). This High Court has power to do this under Article 226 by issuing a writ or any appropriate order so that a wrong done by the order of the Government may be remedied.&#8221;\n<\/p>\n<p>(10) The petition is allowed and the respondents are directed not to dispossess the<br \/>\npetitioner of the house in dispute in execution<br \/>\nof the said communication of the Deputy Com<br \/>\nmissioner of Sirmur at Nahan dated 2-7-1952,<br \/>\nor, in execution of any mere executive order<br \/>\nof the State. If the respondents have any<br \/>\nclaim to the property in dispute, they should<br \/>\nfirst establish their right to the claim by the<br \/>\ninstitution of a suit in the appropriate Court<br \/>\nof law. The petitioner will have his costs of<br \/>\nthe present proceedings from the State of<br \/>\nHimachal Pradesh, which I fix at Rs. 50\/-\n<\/p>\n<p>(Rupees fifty).<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Himachal Pradesh High Court Hira Singh Bam vs The State Of Himachal Pradesh And &#8230; on 27 October, 1952 Equivalent citations: AIR 1953 HP 57 Bench: C C. JUDGMENT Chowdhry, J.C. (1) The petitioner purchased a house in Nahan, known as the &#8220;Rose View&#8221;, from the ex-Government of Sirmur for Rs. 8,000\/- on 28-1-2005 B., [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-16437","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Hira Singh Bam vs The State Of Himachal Pradesh And ... on 27 October, 1952 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hira-singh-bam-vs-the-state-of-himachal-pradesh-and-on-27-october-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hira Singh Bam vs The State Of Himachal Pradesh And ... on 27 October, 1952 - Free Judgements of Supreme Court &amp; 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