{"id":230022,"date":"1997-02-10T00:00:00","date_gmt":"1997-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-kumar-gupta-and-anr-vs-state-of-u-p-and-ors-on-10-february-1997"},"modified":"2016-10-18T03:44:34","modified_gmt":"2016-10-17T22:14:34","slug":"rajendra-kumar-gupta-and-anr-vs-state-of-u-p-and-ors-on-10-february-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-kumar-gupta-and-anr-vs-state-of-u-p-and-ors-on-10-february-1997","title":{"rendered":"Rajendra Kumar Gupta And Anr vs State Of U.P. And Ors on 10 February, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajendra Kumar Gupta And Anr vs State Of U.P. And Ors on 10 February, 1997<\/div>\n
Bench: Dr. A.S. Anand, S.B, Majmudar<\/div>\n
           CASE NO.:\nAppeal (civil)  373 of 1987\n\nPETITIONER:\nRAJENDRA KUMAR GUPTA AND ANR.\n\nRESPONDENT:\nSTATE OF U.P. AND ORS.\n\nDATE OF JUDGMENT: 10\/02\/1997\n\nBENCH:\nDR. A.S. ANAND & S.B, MAJMUDAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1997 (1) SCR 1056<\/p>\n
The Judgment of the Court was delivered by :\n<\/p>\n
S.B. MAJMUDAR, J.: The appellants in this appeal by special leave have
\nbrought in challenge the order of a Division Bench of the High Court of
\nJudicature at Allahabad dismissing the writ petition moved by the
\nappellants before that Court. The appellants had challenged an order dated
\n29th October 1976 passed by the second respondent, District Magistrate-
\ncum-Competent Authority, Kanpur, requisitioning 777 sq. yards and 7- 1\/3
\nsq. ft. of lands comprising of plot Nos. 36 and 36-A situated on The Mall,
\nKanpur in exercise of the powers of the second respondent under Section 23
\nof Defence and Internal Security of India Act, 1971 (hereinafter referred
\nto as ‘the Act’). The impugned order of second respondent merely mentioned
\nthat the said order of requisition was issued as it was necessary and
\nexpedient to requisition the property in question for maintaining supplies
\nand services essential to the life of the community. The appellants were
\ncalled upon by the said order to deliver by 15th November 1976 possession
\nof the said immovable property to the Director, Handlooms and Managing
\nDirector of U.P. State Handloom and Power-loom Finance and Development
\nCorporation Ltd., Kanpur, U.P., respon-dent no. 3 herein. During the writ
\nproceedings it transpired that the said requisition order was issued with a
\nview to seeing that the concerned respondent-Corporation could construct
\nshops and showrooms in the land in question for exhibiting its handloom
\nproducts which were manufactured by handloom weavers. The appellants
\ncontended before the High Court that the aforesaid purpose of requisition
\nwas dehors the provisions of Section 23 of the Act. It was next submitted
\nthat as it was a permanent purpose power of requisition under the Act would
\nnot be invoked for fructifying the said purpose and in any case such a
\nrequisition order could not continue indefinitely and hence the continued
\nenforcement of the said order resulted in unreasonable exercise of power on
\nthe part of the second respondent. The Division Bench of the High Court was
\nnot persuaded to accept the aforesaid contentions raised on behalf of the
\nappellants and dismissed the writ petition. That is how the appellants are
\nbefore us in this appeal.\n<\/p>\n
Rival Contentions Shri Sibal, learned senior counsel for the appellants
\nvehemently contended that the Act itself was a temporary Statute having the
\nlimited existence being enacted during emergency, both external and
\ninternal, and had already ceased to operate since long and that the purpose
\nfor which the requisition was resorted to was dehors the provisions of
\nSection 23 of the Act as providing a showroom for exhibiting the wares
\nmanufactured by weavers could not be said to have any nexus with the
\nmaintenance of supplies and services essential to the life of the
\ncommunity. He also submitted that in any case the purpose being of the
\npermanent nature could not have been the subject-matter of an order of
\nrequisition under Section 23 of the Act.\n<\/p>\n
He lastly submitted that in any view of the matter the continued
\nenforcement of the impugned order for all these years till date has become
\ntotally unreasonable and even on that ground the requisition order which
\nhad outlived its existence and legal efficacy deserves to be quashed.\n<\/p>\n
On the other hand learned counsel for respondent No. 2 and Shri Altaf
\nAhmed, learned Additional Solicitor General appearing for respon-dent no. 3
\ncontended that the impugned requisition order was within the forecorners of
\nSection 23 of the Act and that it was not as if the requisition could be
\nresorted to only for a limited period or only for a temporary purpose. That
\nrequisition can be made for subserving even a permanent purpose.\n<\/p>\n
It was next contended that the lands under requisition belonged to the
\nState. They were Nazul lands. They were earlier leased out by two separate
\nLease Deeds in favour of one J.N. Mehrotra in the years 1920 and 1932
\nrespectively. That the initial period of 30 years in respect of each of the
\nleases had already expired and there had been no renewal in respect of plot
\nno. 36 whereas renewal in respect of plot no. 36-A was effected in 1948 for
\na further period of 30 years which had also admittedly expired in 1978 and
\nthereafter no further renewal was ef-fected by respondent no. 1 – State of
\nU.P. It was, therefore, contended that on the expiry of one year from the
\ndate of the impugned requisition order there remained no occasion for the
\nState to acquire these lands and their possession stood reverted to the
\nState authorities in their ownership and consequently the appellants cannot
\nhave any grievance in connection with the lands in question. In Rejoinder
\nit was submitted by learned senior counsel for the appellants that both
\nthese leases contained clauses giving absolute option to the lessees to get
\nrenewal of leases for further periods of 30 years subject to the maximum
\nperiod of 90 years from the date of the original leases. That the
\nappellants had legally acquired right, title and interest of the original
\nlessee in these lands and that they had exercised their option under the
\nLease Deeds to get the leases renewed for a further period of 30 years.
\nThat even the. Municipal authorities at Kanpur had accepted Nazul rent from
\nthe appellants from time to time and there was nothing on the record to
\nindicate that the State had resumed these Nazul lands at any time or had
\nterminated the leasehold interest of the appellants in the lands.
\nConsequently it could not be said that the appellants had no locus standi
\nto put forward their grievance in the present proceedings.\n<\/p>\n
In view of the aforesaid rival contentions the following points arise for
\nour determination :\n<\/p>\n
Points for determination<\/p>\n
1.    Whether the impugned requisition order dated 29th October 1976 was
\nvalidly passed under Section 23 of the Act.\n<\/p>\n
2.    Whether the appellants have got locus standi to challenge the said
\norder.\n<\/p>\n
3. Whether the requisition order had outlived its existence and its
\ncontinuance any further would amount to colourable exercise of power and
\nwould be unreasonable.\n<\/p>\n
We shall deal with these points seriatim. Point No. 1<\/p>\n
While considering the efficacy of the impugned requisition order under
\nSection 23 of the Act it is necessary to note a few relevant statutory
\nprovisions in the light of which the said order will have to be
\nscrutinised.\n<\/p>\n
The Defence of India Act, 1971 was enacted in 1971 with a view to providing
\nfor special measures to ensure the public safety an interest, the defence
\nof India and civil defence and for the trial of certain offences and for
\nmatters connected therewith. The Preamble of the Act laid down that whereas
\nthe President has declared by Proclamation under clause (1) of article 352
\nof the Constitution that a grave emergency exists whereby the security of
\nIndia is threatened by external aggression; and whereas it is necessary to
\nprovide for special measures to ensure the public safety and interest, the
\ndefence of India and civil defence, and for the trial of certain offences
\nand for matters connected therewith that the Act was enacted by the
\nParliament in the twenty second year of the Republic of India. The said Act
\nwas subsequently amended by Defence of India (Amendment) Act, 1975 being
\nAct 32 of 1975 whereby concept of internal security was also introduced in
\nthe said Act for enabling the authorities to exercise powers under the said
\nAct as amended and that is how the Act was thereafter known as Defence and
\nInternal Security of India Act, 1971. Section 23 of the Act as amended,
\nwith, which we are concerned reads as under :\n<\/p>\n
“23. Requisitioning of immovable property. – (1) Notwithstanding anything
\ncontained in any other law for the time being in force, if in the opinion
\nof the Central Government or the State Government it is necessary or
\nexpedient so to do for securing the defence of India. Civil Defence,
\n(internal security), public safety, maintenance of public order or
\nefficient conduct of military operations, or for maintaining supplies and
\nservices essential to the life of the com-munity, that Government may by
\norder in writing requisition any immovable property and may make such
\nfurther orders as appear to that Government to be necessary or expedient in
\nconnection with the requisitioning :\n<\/p>\n
Provided that no property or part thereof which is exclusively used by the
\npublic for religious worship shall be requisitioned.\n<\/p>\n
(2)  The requisition shall be effected by an order in writing ad-dressed to
\nthe person deemed by the Central Government or the State Government, as the
\ncase may be, to be the owner or person in possession of the property, and
\nsuch order shall be served in the prescribed manner on the person to whom
\nit is addressed.\n<\/p>\n
(3) Whenever any property is requisitioned under sub- section (1), the
\nperiod of such requisition shall not extend beyond the period for which
\nsuch property is required for any of the purposes mentioned in that sub-
\nsection.”\n<\/p>\n
Section 24 deals with ‘Payment of Compensation’. It reads as under :\n<\/p>\n
“24. Payment of compensation. – Whenever in pursuancesI of Sec-tion 23, the
\nCentral Government or the State Government, as the case may be,
\nrequisitions any immovable property, there shall be paid to the persons
\ninterested compensation the amount of which shall be determined by taking
\ninto consideration the following, namely:\n<\/p>\n
(i) the rent payable in respect of the property or if no rent is payable,
\nthe rent payable in respect of similar property in the locality ?\n<\/p>\n
(ii) if in consequence of the requisition of the property the person
\ninterested is compelled to change his residence or place of business, the
\nreasonable expenses (if any) incidental to such change :\n<\/p>\n
(iii) such sum or sums, if any as may be found necessary to compensate the
\nperson interested for damage caused to the property on entry after
\nrequisition or during the period of requisition, other than normal wear and
\ntear :\n<\/p>\n
Provided that where any person interested being aggrieved by the amount of
\ncompensation so determined makes an application within the prescribed time
\nto the Central Government or the State Government, as the case may be, for
\nreferring the matter to an arbitrator, the amount of compensation to be
\npaid shall be such as the arbitrator appointed in this behalf by the
\nCentral Government or the State Government, as the case may be, may
\ndetermine :\n<\/p>\n
Provided further that where there is any dispute as to the title to receive
\nthe compensation or as to the apportionment of the amount of compensation,
\nit shall be referred to an arbitrator appointed in this behalf by the
\nCentral Government or the State Government, as the case may be, for
\ndetermination, and shall be determined in accordance with the decision of
\nsuch ar-bitrator.\n<\/p>\n
ExplanatIion. – In this section and in section 31, the expres-sion “person
\ninterested” in relation to any property includes all persons claiming or
\nentitled to claim an interest in the compen-sation payable on account of
\nthe requisitioning or acquisition of that property under this Act.”\n<\/p>\n
Section 30 deals with ‘Acquisition of requisitioned property’. It reads as
\nfollows :\n<\/p>\n
“30. Acquisition of requisitioned property. – (1) Any immovable property
\nwhich has been requisitioned under section 23 may, in the manner
\nhereinafter provided, he acquired in the circumstances and by the
\nGovernment specified below, namely :\n<\/p>\n
(a)  where any works have, during the period of requisition, been
\nconstructed on, in or over the property wholly or partly at the expense of
\nany Government, the property may be acquired by that Government if it
\ndecides that the value of or the right to use, such works shall by means of
\nthe acquisition of the property, be preserved or secured for the purposes
\nof any Government, or<\/p>\n
(b)  where the cost to any Government of restoring the property to its
\ncondition at the time of its requisition as aforesaid would, in the
\ndetermination of that Government, be excessive having regard to the value
\nof the property at that time, the property may be acquired by that
\nGovernment.\n<\/p>\n
(2)  When any Government as aforesaid decides to acquire any immovable
\nproperty, it shall serve on the owner thereof or where the owner is not
\nreadily traceable or the ownership is in dispute, by publishing in the
\nOffice Gazette, a notice stating that the Government has decided to acquire
\nit in pursuance of this section.\n<\/p>\n
(3)  Where a notice of acquisition is served on the owner of the property
\nor is published in the Official Gazette under sub-section (2), then, at the
\nbeginning of the day on which the notice is so served or published the
\nproperty shall vest in the Government free from any mortgage, pledge, lien
\nor other similar encumbrances and the period of requisition thereof shall
\ncome to an end.\n<\/p>\n
(4)  Any decision or determination of a Government under sub-section (1)
\nshall be final, and shall not be called in question in any court.\n<\/p>\n
(5) For the purposes of this section, “works” includes every description of
\nbuildings, structures and improvements of the property.”\n<\/p>\n
A conjoint reading of the aforesaid provisions indicates that the
\nrequisitioning of immovable property under the Act is with a view to cater
\nto the emergent situations arising out of the currency of external and\/or
\ninternal emergency fcr which the President of India might have issued
\nrelevant proclamations under the provisions of the Constitution of India.
\nObviously, therefore, the powers conferred on the authorities functioning
\nunder the Act are emergency powers. By their very nature they pertain to
\nemergent situations of a temporary nature and not of a permanent nature.
\nUnder such emergent situations when power to requisition immovable property
\nis to be exercised under Section 23 of the Act the Legislature in its
\nwisdom has clearly indicated the limited sphere in which and purposes for
\nwhich such power could be exercised. An order under Section 23(1) during
\nsuch emergent situations can be passed – (a) either for securing defence of
\nIndia; (b) civil defence; (c) public safety; (d) maintenance of public
\norders; (e) for efficient conduct of military purposes or for maintaining
\nthe supplies and services essential to the life of the community. In the
\ncontext in which the power of requisition for maintaining supplies and
\nservices essential to the life of the community is conferred by the Section
\nleaves no room for doubt that an order in exercise of such power can be
\npassed only under circumstances of grave urgency as contemplated by other
\nsimilar types of orders which could be passed under this very Section. It
\nmust, therefore, be held that a competent authority exercising powers under
\nSection 23(1) can requisition any immovable property for the purpose of
\nmain-taining supplies and services essential to the life of the community
\nif it is found that but for such an order the community would be deprived
\nof the concerned supplies and services essential for its life. It is per-
\ntinent to note that the impugned requisition order only recites that the
\nsecond respondent was of the opinion that it was necessary and ex-pedient
\nto requisition the appellants’ property, of which they were in possession
\nfor maintaining supplies and services essential to the life of the
\ncommunity. By a mere reading of the said order it is difficult to find out
\nas to what supplies and services were required to be maintained being
\nessential for the life of the community which necessitated the passing of
\nthe said order. In the last paragraph of the order it is mentioned that
\npossession of the said property was to be delivered by 15th November 1976
\nto Director, Handlooms and Managing Director of the U.P. State Handloom and
\nPowerloom Finance and Development Corporation Ltd., Kanpur, U.P. The
\naffidavit filed by respondent no. 3 before the High Court indicated that
\nthe said order was issued for the benefit of the third respondent-
\nCorporation to enable it to run a hand-loom showroom, which purpose was
\nconsidered expedient for maintain-ing essential supplies and service to the
\nlife of the community. In the counter affidavit filed in the present
\nproceedings the third respondent has averred that the Corporation aims only
\nto give commercial and material help and guidance to the poor weavers and
\nto provide a ready market to them so as to protect them from unscrupulous
\nmiddlemen. Paragraphs 6 and 7 of this counter deserve to be noted in
\nextenso in this connection :\n<\/p>\n
“6. I state that handloom cloth is manufactured by over 15 lakh poor
\nweavers in the State, with the Government and on a small scale basis. The
\nCorporation has the twin objective of providing jobs to the maximum number
\nor rural poor since the manufacture of handloom clothes is a labour-
\noriented process and also to make cheap cloth available to the poor
\nconsumers. To this end the Corporation has extended loans to the weavers to
\nthe tune of Rs 80 lakhs and also supplied Yarn of the value of approx, Rs.
\n12 crores annually to them. The Corporation purchases the finished product
\nto the tune of Rs. 30 crore annually which is sold through selling-cum-
\ndisplay shops and through exhibitions.\n<\/p>\n
7, That it was only after examining the pressing necessity for a Handloom
\nShowroom an being satisfied that it was an essential requirement for the
\ncommunity, the Respondent 1 and 2 requisi-tioned the disputed plot and
\nhanded it over to Respondent No. 3. I state that the Respondent 1 and 2
\nwere acting within the scope of the power conferred under Sec. 23 of the
\nAct and such a requisition falls squarely within objectives specified in
\nthat Sec-tion.”\n<\/p>\n
The learned counsel for the second respondent has broadly supported the
\naforesaid contention put forward on behalf of respondent no. 3.\n<\/p>\n
In the light of the aforesaid stand of the contesting respondents it
\nbecomes clear that the impugned order saw the light of the day because the
\nthird respondent-Corporation wanted to have a showroom for exhibit-ing the
\nwares manufactured by weavers with a view to giving a fillip to the sales
\nof these articles so that weavers working in rural areas could get an
\nassured market for their goods. Shri Sibal, learned senior counsel for the
\nappellants fairly stated that the said purpose may be treated as a public
\npurpose but the question is whether for such a purpose emergency powers
\nunder Section 23 of the Act could be exercised. So far as this question is
\nconcerned, in our view, the impugned order cannot be supported under
\nSection 23. If requisition order is said to have been justifiably issued by
\nthe second respondent for maintaining supplies and services essential to
\nthe life of the community it must be shown that but for passing of such an
\norder that community would be deprive of essential supplies and services
\nand its very life would get adversely affected. Even if the third
\nrespondent-Cor-poration does not run any showroom for exhibiting handloom
\nwares manufactured by rural weavers, all that may perhaps happen is that
\nthe weavers may not be able to get their goods easily sold in the market or
\nmay not have a good deal of customers. But that would not mean that com-
\nmunity or any part of it would be deprived of essential supplies and
\nservices. It cannot be urged with any emphasis that if the goods manufac-
\ntured by rural weavers are not property marketed the community as a whole
\nwould be deprived of essential supplies and services. Without the use of
\nsuch goods manufactured by rural weavers the community can comfortably
\nexist and survive or in any case its existence would not come in any
\njeopardy. Reliance was placed by Shri Altaf Ahmed, learned Addi-tional
\nSolicitor General, on a decision of this Court in the case of Parvej Aktar
\nand Others v. Union of India and Others,<\/a> [1993] 2 SCC 221. But the said
\ndecision is also of no help to him for the simple reason that this Court in
\nthe said decision had to consider entirely a different question as to
\nwhether the reservation of articles for exclusive production by handloom
\nindustry under the provisions of Handlooms (Reservation of Articles for
\nProduction) Act, 1985 was violative of Article 14 of the Constitution of
\nIndia. It was held that reservation of articles under the Act does not
\ncreate any monopoly in favour of handloom industry. It was also observed
\nthat handloom industry is the biggest cottage industry in the country and
\nis next only to agricultural sector in providing rural employment. The Act
\nof 1985 was enacted for the protection of the interests of the handloom
\nweavers, mostly concentrated in rural areas. They are pitted against a
\npowerful sector, namely, the mills and the powerloom. As such, they face
\nunequal competition. The protection has been given by the Government to
\nhandloom weavers because the livelihood of handloom weavers is threatened
\ndue to the production of all types of items and varieties by the powerloom
\nindustry. The handloom weavers are economically very poor and will have no
\nalternative employment in the rural areas unless protected through
\nreservation of varieties for them. The reservation or-ders are for the
\ncontinued employment of the handloom industry and are in the larger public
\ninterest. The restrictions are not only reasonable but also fully
\njustified. We fail to appreciate how the said decision can be pressed in
\nservice for supporting the impugned requisition order under Section 23 of
\nthe Act. Section 23 is not enacted for guaranteeing or providing any
\ncontinuously lucrative market for the handloom wares manufactured by rural
\nweavers. The impugned order has to be judged in the light of the express
\nprovisions of Section 23 and not dehors them. In the light of the stand
\ntaken by the respondents for justifying the impugned order, it has,
\ntherefore, to be held that however laudable the object may be, of seeing
\nthat the economic condition of rural weavers in handloom industry is
\nimproved, the said object for which a showroom has to be constructed on the
\nlands in question would not justify the respondent-authority to invoke
\npowers under Section 23 as the said object would fall short for the
\nrequirement envisaged by the said Section for exercise of such power.
\nProvision for such showroom or its absence will have no impact on the
\nmaintenance of supplies and services essential to the life of the com-
\nmunity as such. It is difficult to appreciate the reasoning adopted by the
\nDivision Bench of the High Court in the impugned judgment that these shops
\nand showrooms are intended to be used by the State obviously for extending
\nhelp to a particular class of small and cottage industry of U.P. involving
\npoor weavers by protecting them from exploitation by middle traders and by
\nmarketing their products directly to the public through these shops and
\nshowrooms and therefore, establishment of such shops and showrooms had a
\nnexus with the maintenance of supplies and services essential to the life
\nof the weaving community. Even assuming that weaving community is a part of
\nthe community as a whole in the absence of such showrooms the weaving
\ncommunity cannot be said to have been deprived of any essential supplies or
\nservices. Nothing was required to be supplied to them by having such a
\nshowroom. On the contrary the showroom was to enable the weaving community
\nto supply their goods more effectively and lucratively to their customers
\nbeing other part of the community. It must, therefore, be held that such an
\nobject underlying the impugned requisition order had no nexus with the
\nmaintenance of supplies and services essential to the life of the community
\nand was totally dehors the provisions of Section 23. Consequently the
\nimpugned requisition order must be held to be ultra vires of Section 23,
\nunauthorised and incompetent.\n<\/p>\n
One additional aspect for challenging the said order was pressed in service
\nby Shri Sibal, learned senior counsel for the appellants. He sub-mitted
\nthat in any case the impugned requisition order was for a purpose which was
\nof a permanent nature, namely, to have showrooms and shops for respondent
\nno. 3 Corporation for being located on the land. That for such a permanent
\nor quasi-permanent purpose even assuming it to be a public purpose,
\nrequisitioning of premises could not be resorted to and the said
\nauthorities if at all could have resorted to the power of acquisition of
\nthe premises. In short it was contended that requisition of premises could
\nbe done only for a temporary purpose for a temporary period and not for a
\npermanent purpose requiring a prolonged existence of such an order. We
\nshall now deal with the said additional contention.\n<\/p>\n
It is no doubt true as laid down by a Constitution Bench of this Court in
\nthe case of Grahak Sanstha Manch and Others v. State of Maharashtra,<\/a> [1994]
\n4 SCC 192 that the requisition of premises under Bombay Land Requisition
\nAct, 1948 could be made even for a permanent public purpose. However the
\nsaid decision was rendered in the light of the express provisions of Bombay
\nLand Requisition Act, 1948 which death with requi-sitioningI of a premises
\nfor a public purpose while in the present case the requisition of premises
\nis contemplated to be resorted to during the internal and external
\nemergency which resulted in the enactment of the Act. Therefore, by the
\nvery nature of the parent Act under which this power is being exercised
\nsituations must be of such grave and urgent nature that they would compel
\nexercise of such emergent powers. Consequently it could not be said that
\npower to requisition under Section 23(1) of the Act for maintaining
\nsupplies and services essential to the life of the community could be
\nresorted to for catering to any permanent public purpose con-templated by
\nthe said provision. Sub-section (3) of Section 23 also is a pointer in the
\nsame direction. It has clearly enjoined that period of such requisition
\nshall not extend beyond the period for which such property is required for
\nany of the purposes mentioned in sub- section (1). Consequently it must be
\nheld that orders under Section 23(1) of the Act could be passed only for
\nemergent purposes contemplated by the provision and they are by their very
\nnature expected to be of limited duration. A perpetual emergency is not
\ncontemplated by that Act or the Presidential notification under which it
\ngot its birth. Section 30 of the Act is also relevant in this connection.
\nIt clearly lays down that even during emergency when such temporary
\nrequisition orders are passed if the requisitioning authority is shown to
\nhave spent large amounts on the requisitioned property under circumstances
\nmentioned in the said Sec-tion the said property may be acquired by the
\nGovernment. It must, therefore, be held that in the scheme of Section 23 of
\nthe Act the orders of requisition of immovable properties must necessarily
\nbe not of a permanent nature but must be of limited duration commensurate
\nwith the continuance of the emergent situations and the needs which
\nrequires such orders to be passed and continued for the requisite period of
\nsuch emergent need for which such orders are passed. As the impugned order
\nof requisition is as old as of 1976 and the respondents have persisted with
\nthe said order for all these years spread by now, over more than two
\ndecades it has to be held that such indefinite requisition of premises is
\ncontrary to the very scheme of Section 23 and even on that ground the order
\nwould fall foul on the touchstone of Section 23 itself. Before parting with
\nthis discussion we may refer to a decision of a Division Bench of the Patna
\nHigh Court in the case of M\/s. Speedcrafts Pvt. Ltd. v. The Dist.
\nMagistrate and Others, AIR<\/a> (1976) Patna 129. Inter-preting these very
\nprovisions of the Act it was held by the Division Bench in the said case
\nthat if the public purpose for which a property is acquired is not of a
\ntemporary character resort cannot be had to the provision of the Section\n<\/p>\n
23. In the context and the settings of the relevant provisions of the Act
\nthe aforesaid view of the Patna High Court is well sustained. We have
\nperused the departmental file and find that the Collector had agreed with
\nthe opinion that the property could be acquired for the purpose of
\nconstructing the showroom and not requisitioned, as the purpose is “outside
\nthe ambit of Section 23”. Why then did the department still proceed to
\n“requisition” and not take recourse to “acquisition” proceedings is not
\nintelligible. The first point is answered in the negative by holding that
\nthe impugned order of requisition was not validly made under section 23 of
\nthe Act.\n<\/p>\n
Point No. 2<\/span><\/p>\n
So far as this point is concerned we have to keep in view the fact that the
\noriginal Lease Deeds gave absolute option to the lessee to get the leases
\nrenewed for a further period of 30 years each time till the maximum ceiling
\nof 90 years of the duration of the original lease was reached. As noted
\nearlier both the leases had come into force from 1920 and 1932 respective-
\nly. Therefore, both these leases could validly be extended at the absolute
\noption of the lessee up to 2010 and 2022 A.D. respectively. There is
\nnothing on the record to show that extension of leases was ever refused by
\nthe respondents or the leased premises were resumed, being Nazul lands. On
\nthe contrary there is evidence on the record to show that the Nazul rent
\nwas being demanded and recovered from the appellants by the Municipal
\nauthorities of Kanpur from time to time. In any case the date on which the
\nimpugned requisition order was passed, that is, on 29th October 1976, both
\nthe leases were current. The efficacy of the impugned order has to be
\nexamined in the light of the fact situation that obtained on the date of
\nthe impugned order. By that time the original lessee had sufficient
\ninterest in the leases which could be validly transferred to the present
\nappellants and that is exactly what has been done by the original lessee.
\nIt could not be said, therefore, that the appellants had no locus standiI
\nto challenge the impugned order of requisition when they were having un-
\nexpired lease period with them entitling them to remain as lessees under
\nvalidly subsist-ing leases of these two Nazul lands. Even though the lands
\nwere Nazul lands till the leases were legally terminated by the
\nauthorities, the leasehold interest of the original lessee and the
\nappellants who are successor-in-in-terest of the original lessee remained
\nin tact. Whether the respondents can validly terminate the leases during
\ntheir extended periods or whether these Nazul lands which were subject-
\nmatter of leases cold be resumed by the authorities is a question with
\nwhich we are not concerned and, therefore, we do not express any opinion
\none way or the other on this question. For the present purpose, it is
\nsufficient to indicate that the appellants at the time when the impugned
\norder of requisition was passed and even till have sufficient locus siandi
\nto challenge the said order and to claim restoration of their leasehold
\nrights in the said lands and the possession thereof. Point No. 2 is
\nanswered in the affirmative in favour of the appellants and against the
\nrespondents.\n<\/p>\n
Point No, 3<\/p>\n
So far this point is concerned it has to be noticed that the impugned order
\nwas passed during the currency of proclamation of emergency, both internal
\nand external, and it sought its efficacy through the parent Act which has
\nsince long expired. Shri Altaf Ahmed, learned Additional Solicitor General,
\nhowever, vehemently submitted that as laid down by Section 1 sub-Section
\n(3) of the Act despite the expiry of the Act after six months from the
\ncessation of the operation of proclamation of emergency and which event has
\ntaken place since long, the previous operation of the Act which was holding
\nthe field at the relevant time was not affected. The said provision reads
\nas under :\n<\/p>\n
“1. (3) It shall come into force at once and shall remain in force during
\nthe period of operation of the Proclamation of Emergency and for a period
\nof Six months thereafter, but its expiry under the operation of this sub-
\nsection shall not affect –\n<\/p>\n
(a)   the previous operation of, or anything duly done or suffered under,
\nthis Act or any rule made thereunder or any order made under any such rule,
\nor<\/p>\n
(b)  any right, privilege, obligation or liability acquired, ac-crued or
\nincurred under this Act or any rule made there-under or any order made
\nunder any such rule, or<\/p>\n
(c)  any penalty, forfeiture or punishment incurred in respect of any
\noffence under this Act or any contravention of any rule made under this Act
\nor of any order made under any such rule, or<\/p>\n
(d) any investigation, legal proceeding or remedy in respect of any such
\nright, privilege, obligation, liability, penalty, for feiture or punishment
\nas aforesaid.\n<\/p>\n
and any such investigation, legal proceeding or remedy may be instituted,
\ncontinued or enforced and any such penalty, forfeiture or punishment may be
\nimposed as if this Act had not expired.”\n<\/p>\n
It is difficult to appreciate how this contention can be of any avail to
\nthe contesting respondents. All that this provision shows is that if a
\nvalid order has been passed under Section 23 at the time when the Act along
\nwith the said Section was operative, merely because the parent Act expired
\nby efflux of time the efficacy of such a valid order would not get whittled
\ndown only on that score. But that does not mean that the validity of the
\nsaid order could not be examined on its own with a view to finding out
\nwhether the said requisition order under Section 23 was validity passed or
\nwas a still-born one and whether in any case such an order can be permitted
\nto continue indefinitely and is to be treated as almost immortal. It is
\nthis question which is on the anvil of scrutiny before us and it cannot be
\neffectively answered by the respondents in the light of the aforesaid
\nsaving clause.\n<\/p>\n
We, therefore, will have to examine the efficacy of the impugned order from
\nthe point of view of its prolonged duration uptill now which as seen
\nearlier had been spread over more than two decades from the date on which
\nit got its birth on 29th October 1976. For deciding this question we will
\nassume with the respondents, for the sake of argument, that on the day on
\nwhich it was passed it was validly passed under the provisions of Section\n<\/p>\n
23. Even then the moot question still remains whether such an emergency
\norder of requisition which might be justified in those days when it was
\npassed could now be permitted to continue indefinitely. For answering this
\nquestion we may usefully refer to the decision of the Constitution Bench of
\nthis Court in the case of Grahak Sanstha Manch (supra). The Constitution
\nBench has in terms laid down that even though a requisition order can be
\nissued for a permanent public purpose under the provisions of Bombay Land
\nRequisition Act, 1948 it cannot be continued indefinitely. “We may usefully
\nrefer to the relevant observations made in this connection by Bharucha, J.
\nSpeaking for the majority of the Constitution Bench, in paragraphs 16 and
\n17 of the Report :\n<\/p>\n
We find ourselves in agreement with the view taken in the cases of
\nCollector of Akola and Jiwani Kumar Paraid that the purpose of requisition
\norder may be permanent. But that is not to say that an order of
\nrequisitioning can be continued indefinitely or for a period of time longer
\nthan that which is, in the facts and circumstances of the particular case,
\nreasonable. We note and approve in this regard, as did this Court in jiwani
\nKumar Paraid case, the obser-vations of the Nagpur High Court in the case
\nof Mangilal Karwa v. State of M.P.,<\/a> which have been reproduced above. That
\nthe concept of requisitioning is temporary is also indicated by the Law
\nCommission in its Tenth Report and, as pointed out earlier, by the terms of
\nthe said Act itself, as it originally stood and as amended from time to
\ntime. There is no contradiction in concluding that while a requisition
\norder can be issued for a permanent public purpose, it cannot be continued
\nindefinitely. Requisitioning might have to be resorted to for a permanent
\npublic purpose to give an example, to tide over the period of time required
\nfor making permanent premises available for it. The concepts of acquisition
\nand requisition are altogether different as are the consequences that flow
\ntherefrom. A landlord cannot, in effect and substance, be deprived of his
\nrights and title to property without being paid due compensation, and this
\nis the effect of prolonged requisi-tioningI. Requisitioning may be
\ncontinued only for a reasonable period; what that period should be would
\ndepend upon the facts and circumstances of each case and it would
\nordinarily, be for the Government to decide.\n<\/p>\n
For the aforesaid reasons, we hold that the decision in H.D. Vora case does
\nnot require reconsideration. We, however, do not approve the observations
\ntherein that requisition orders under the said Act cannot be made for a
\npermanent purpose. We make it clear that the said decision does not lay
\ndown, as has been argued, a period 30 years as the outer limit for which a
\nrequisition order may continue, The period of 30 years was mentioned in the
\ndecision only in context of the date of the requisition order there
\nconcerned. An order of requisition can continue for a reasonable period of
\ntime and it was held, as we hold, that the continuance of an order of
\nrequisition for as long as 30 years was unreasonable.”\n<\/p>\n
We have already shown that in the context of the emergency provision of the
\nAct in question the powers which could be exercised for requisitioning
\nproperties under Section 23 by their very nature could not be utilised for
\nrequisitioning immovable properties for an indefinite period. Such
\nrequisition virtually amounts to acquisition. In the facts and
\ncircumstances of this case it must be held that when years back the parent
\nAct had ceased to operate and the internal and external emergency decla-
\nrations had stood withdrawn, now obviously there is no rhyme or reason why
\nsuch a requisition order, which by efflux of time has become stale and its
\nvery purpose has become obsolete, should be permitted to be continued any
\nfurther and the appellants’ properties should be still permitted to remain
\nrequisitioned and in possession of the respondents. In the facts and
\ncircumstances of the case, therefore, it must be held that continued requi-
\nsition of the appellants’ leasehold premises by now at least must be
\ntreated to have become unreasonable and it would necessarily indicate abuse
\nof power and a colourable exercise thereof. It must be held that the
\nimpugned requisition order even assuming that it was valid and kicking and
\nwas not still-born when it was passed in 1976, by now it has lost its
\nefficacy and has become a dead letter, in the prese , set of circumstances
\nobtaining today. Even on this ground the continuance of the impugned
\nrequisition order cannot be sustained and has to be put an end to. The
\nthird point is also, therefore, answered in the affirmative in favour of
\nthe appellants and against the respondents.\n<\/p>\n
In this connection we may also note that it is not the case of the
\nrespondents that now they require to acquisition the requisitioned premises
\non a permanent basis for the purpose for which they were initially requi-
\nsitioned, by exercise of powers under Section 30 of the Act. In fact the
\nsaid provision could have been pressed in service by respondent no. 3, if
\nat all, during the currency of the Act which provision is obviously not
\navailable to them now. Non-exercise of powers under Section 30 for
\nacquiring these requisitioned properties during the time the Act was in
\nforce itself shows [ that even according to the respondents the Government
\ndid not require the said requisitioned land to be acquired for its purposes
\nor that it was felt that the cost of restoration of the requisitioned
\nproperty by the Govern-ment would be excessive. During the pendency of
\nthese proceedings this Court had earlier directed by order dated 21st
\nSeptember 1984 that status quo will remain so far as the construction in
\nany part of the open space is concerned. That status quo was continued by
\nan order of 29th October 1984. However by a latter order dated 9th February
\n1987 while granting special leave this Court had refused to grant stay but
\nhad made it clear that the respondents will not be entitled to claim the
\nbenefit of Section 30 of the Defence and Internal Security of India Act,
\n1971 in the event of the appeal being allowed. Any further construction
\neffected by the respondents will not be pleaded as defence during the
\nhearing of the appeal. Under these circumstances, therefore, there cannot
\nremain any valid defence for the respondents against the restoration of
\npossession of the requisitioned premises to the appellants once the
\nimpugned order of requisition is found to be invalid in view of our
\nfindings on the aforesaid points for determina-tion.\n<\/p>\n
In the result the appeal is allowed. The judgment and order of the High
\nCourt are set aside. The writ petition filed by the appellants before the
\nHigh Court is allowed. The impugned order of requisition of the premises in
\nquestion dated 29th October 1976 is quashed and set aside. The respondents
\nare directed to restore the possession of these requisitioned properties
\nforthwith to the appellants by clearing off whatever construction may be
\nexisting on spot and making available the requisitioned properties in their
\noriginal form and shape to the appellants. The respon-dents are directed to
\ncomply with this order within eight weeks from the date of receipt of copy
\nof this order at their end. In the facts and circumstances of the case
\nthere will be no order as to costs,<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajendra Kumar Gupta And Anr vs State Of U.P. And Ors on 10 February, 1997 Bench: Dr. A.S. Anand, S.B, Majmudar CASE NO.: Appeal (civil) 373 of 1987 PETITIONER: RAJENDRA KUMAR GUPTA AND ANR. RESPONDENT: STATE OF U.P. AND ORS. DATE OF JUDGMENT: 10\/02\/1997 BENCH: DR. A.S. ANAND & S.B, MAJMUDAR […]<\/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":[30],"tags":[],"class_list":["post-230022","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajendra Kumar Gupta And Anr vs State Of U.P. 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