MADAN GOPAL AGARWAL v. DISTRICT MAGISTRATE, ALLAHABAD AND OTHERS October 10, 1972 [A. N. RAY, D. G. PALEKAR, M. H. BEG ANDS. N:DW!VEm, JJ.] U.P. (Temporory) Accommodation Requisition Act 1947, S.3-0rder of requisition 1nade lvithout hearing to owner occupant' whether valid. 1)\e appellal!t's house in Allahabad was let out to the State Govern- ment for a penod of five years.
Soon after the expiry of the period of lease in September 1969 the District Magistrate passed an order under s.3 ~f t.he U.P. (Temporary) Accommodation. Requisition Act 1947 ·rcquisi- ttonmg the house to provide accommodation to a public
serva:nt. The app<:llant was asked to hand over possession of the house within 24 hours after the expiry of 15 days from the date of the service of the order on him. He challenged the order in a petition under Art. 226 of the Con· ti- tution on the ground that tho order was issued without issui:ng any notice to him and without giving him a hearing. The High Court dismi&5ed the petition taking the view that since the house was taken away from the
appellant's use for a temporary period only he did not stand deprived of his property, and, therefore a detailed procedure wa' not :necessary. The appeUant filed an appeal in this Court by special kave.
Allowing the appeal, HELD : Although s,3 of the Act does not contain an expre" provision c for notice and hearing before the making of the requisitioni;~g order, such a provision is to be read there by necessary implication.
The object of the provision is to requisition nn ifumovable ptopcrty. Requisitioning of the property deprives the owner of the property of the right to hold and enjoy the property as he likes. The right to hold and enjoy the property is a cherished right.
It is difficult to assume that tho legislature would have intended to deprive him of his cheri,hed right without noricc and hearing. [6!3CJ Under the main .part of s,3, the District Magistrate, after making up his mind as to the existencr, of a. public purpose to warrant the making of an order of requl,ition, has to decide whether, in view of that public purpo:-.e, he has to requisition a particular accommodatio,D.
He has to con~idr.r the suitability of the accommodation in the light of its location, size and com~ pcnsation payable. These arc objective factors, and, there is no reason w,by the District Magistrate should not hear the owner of the accommoda- tion proposed to be requi'"itioned on these matters.
Under the first pro- viso to the S'>..,ction, the District Magi~tratc has to consider whether the building or part of a building is used for religious worship. Under the second proviso the District Magistrate is to see whether suitable alternative accommodation ii available for the pe'rson in actual possession of the pro- perty. These matters cannot be fairly and satisfactorily determined with- out. giving a hearing to the owner or the person in occupation of the pro- perty. [613 H-61-4 GI
It is nece&sary to l>oar in mind that the Act d"".s not provide .for any appeal or revision from the order of the D1str1ct Mag1~trate under s.3. The J;Jistrict Magistrate is constituted the plenary authority. It s,eems reason- n
c M. G. AGARWAL v. DIST, MAGISTRATE (Dwivedi, J.) able to think that the legislatuv~ intended that an order under s.3 should be made after notice and hearing, so that no unfairness is done to any- one.
An elaborate proc~dure is not necessary. The barest minimum, how- ever is a fair hearing. Notice ~hould be given to the person who will be affected by the order of requisition asking him to show cause why his accommodation should not be requisitioned.
He should be given reason- able time to file his reply to the notice. T11> so~ cases it may :,e neces• sary to give him an opportunity of producing his oral .and documentary evidence. [615BJ
The contention that since an order under s.3 is administrative it is not necessary to hear th-o affected party could not be aqcepted. This Court, in Kraipak held that rules of 11>atural justice will apply to adminis- trative enquiries. The decisions in Doud Ahmad and K. R. Errv hold that in an enactment which deprives a petson of his property, there is neces· sarily implied the pre-requisite of a hearing. [617FJ
The order of requisition in the present case having been made without a hearing must be held to be illegal. A. K. Kraipak and others v. Union of India, [1970] I S.C.R. 457, Daud Ahmad v. The Dlwict Magistrate, Allahabad and others, A.LR. 1972 S.C. 896 State of Punjab v. K. R. Erry and Sobhag Rai Mehta, (1973] 2 S.C.R. 405, applied.
. Province of Bombay v. Kusaldas S. Advani and othe.rs, [1950] S.C.R. 621. Ram Chandra v. The District Magistrate of AligGrh and Othe,.., A.LR. 1953 Allahabad 520, The State ·of Bombay v. Bhanji Munji and another, [1955]) I S.C.R. 777 and Collector of Ako/a and others v. Ramchartdra and others, [1968] I S.C.R. 401 dist~nguished.
C1v1r. AP PELI.I.TE JURISDICTION : 'Civil Appeal. No. 80 of 1972. Appeal by certificate from the judgment and order dated January 23, 1970 of the Allahabad High Court in Civil Misc.
Writ No. 392 of 1970. V. M. Tarlwnde !. B. Go);al and R. A. Gupta, for the appel- lant. G. N. Diksliit und M. V. Goswami, for the respondent. The Judgment of the Court was delivered by.
DWIYEDI, J.-The appellai!lt is the owner of 32, Balrampur House, Mumfordganj, Allahabad. After residing therein for some time, he started living in 33 Pan Dariba, Allahabad with his mother. His own house he let out on September 9, 1964 to the State Gov,,rnment for a period of 5 years on a monthly rent of Rs. 300/-.
The State Government obtained the lease for the purooses of residence or office of the Directorate of Geology and Mining, U.P. The lease was ~..'igned by Shri P, N. Singh, Geologist, SUPREME COUil T llEPOll TS
on behalf of the State Government. In 1967 the appellant had shifted from the house No. 33, Pan Dariba to house No. 398/5, Meerapur, Allahabad. In Meerapur he was living as a tenant. The period of lease with respect to .his own house expired on September 9, 1969. The District Magistrate, Allahabad passed an order under s. 3 of the U.P. (Temporary) Accommodation
Requisition Act, 194 7 (hereinafter referred to as the Act). The order was made on October 4, 1969. By the order the District Magistrate requisitioned the house to provide accommodation to Shri P. N. Singh, Geologist, Directorate of Geology and Mining, U.P. The appellant was directed to hand over possession of the hous'! within 24 hours after the expiry of 15 days from the date of"the service of the order on him.
The appellant filed a writ petition in the Allahabad High Court 'challenging the validity of the order. One of the grounds of challenge, was that the order was made without issuing any notice to him and without giving him a hearing.
The petition was dismissed summarily by a Division Hench of the High Court. The argument of want of notice and hearing was not accepted by the High Court. Feeling aggrieved with the decision of the High Court, the appellant has filed this appeal by special leave. Counsel for the appellant has submitted before us that ihe requisitioning order is' invalid for want of notice and hearing. Counsel for the District Magistrate says that we should not enter- tain the argument as it was not rais~d before the High Court. But we arc satisfied on a reading of the .iudgment of the High Court that the point was raised by the appellant before the High Court. Rejecting the argument, the High Court said : "Where a person is being deprived of his property, it can be said that he should be given an opportunity before the land is acquired; but by requisition the property is taken away from his use for a temporary period and for sttch requisition such a detailed pro- cedure is not necessary.
We are of opinion that the order of requisition is not invalid, nor can s. 3 of the Act be said to be ultra vires simply because it does not provide for a show cause notice to be served on the owner before .tbe order of requisition can be passed."
Coming to the argument, s. 3 of the Act reads : "Jf in the opinion of the District Magistrate Jt ts necessary to requisition any accommodati011 for any c public purpose, he may, by order in writing. requisition
i: such accommodation and may direct that tl)e possession thereof shall be delivered to him within such period as may be specified in the order; provided thai the period c M. G. AGARWAL v. 01sr. MAGISTRATE (Dwivedi, J.)
so specified shall not be Jess than 15 days from the date of the service of the order; l'rovided also that no building or part of a building exclusively used for religious worship shall be requisi-
tioned under' this section. Provided further that no accommodation which is in the actual occupation of any person shall be requisi- tioned unless the District Magistrate is further of the
opinion that suitable alternative accommodation exists for his needs or has been provided to him." The section consists of three parts : the main part and the two provisos Evidently it does not contain an express provision for notice and hearing before the making of the requisitioning order. But it appears to us that such a provision is to be read thereby necessary implication. The object of the provision is to requisition an immovable property.
Requisitioning of the pro- perty deprives the owner of the property of.the r_ight to hold and enjoy the property as he likes. The right to hold and enjoy the property is a cherished right. It is true that the Act is a temporary measure, but it has remained on the statute book for 25 years. There is acute scarcity of accommodation in the State, and. an accommodation once requisitioned is ordinarily not expected to be restored early to the owner. We find it difficult to assume that the legislature would have intended to deprive him of his cherished right without notice and hearing.
The District Magistrate may requisition an accommodation if he is of opinion that it is necessary to requisition it for any public purpose. He is accordingly to make up his mind on two matters : (1 ) there exists a public purpose to warrant the making of an order of requisition; and (2) in view of that public purpose it is necessary to requisition a particular accommodation.
On the second aspect he shall have to consider whether the particular accommodation is adequate for the public purpose for which the requisitioning order is sought to be made. Fer instance, if a
particular accommodation is sought to be requisitioned for any public office, the District Magistrate has to satisfy himself whether it is sufficient for the needs of that public office and whether its location and structure are suitable for that office. He should also consider whether anv other equally gOod or better accommodation may be requisitioned for that public office on payment of a lesser amount of cori1pensation than the one which will be payable for the particular accommodation proposed to be reauisitioned. These :ire objective factors. and there is no reason wh'y the District Ma~is~rate should not hear the owner of the accommodation pro- posed to be requisitioned on these matters.
The owner may '6 14 SUPRBMB COURT REPORTS .suggest to h_im equally good accommodation for the public office for which the Government will be required to pay a lesser amount of compensation than the one which will be payable for his ac- commodation.
The first proviso to s. 3 pr9vides that no building or part of a building "specially used for religious worship" shall be requisi- tioned by the District Magistrate. Whether a building or part of a .building is being exclusively used for. religious worship, is a question of fact.
In some cases it may become a hotly disputed question. The District Magistrate may be informe"d by his sub- .ordinates that the building is not being used at all or is being used partially for religious worship; the owner, on the other harid, may assert that the building is being used exclusively for religious worship.
Fairness, demands that the District Magistrate should hear the owner of the accommodation sought to be requisitioned by him, so that the owner may be able to satisfy him in any parti- cular case that the building is being exclusively used for religious worship. It seems to us that the first proviso 'strongly su_ggests the implication of notice and hearing in the main part of s. 3. The second proviso also seems to support that inference.
It provides that no accommodation "which is in the actual posses- sion of any person" shall be requisitioned unless the District Magistrate is of opinion that suitable altern:itive accommodation exists for his needs or has been provided to him. Here the Dis- trict Magistrate has to consider two things : ( 1) the accommoda- tion sought to be requisitioned is in tl!e actual possession of any person; and (2) a· suitable alternative' accommodation exists- for his needs and has been provided to him. If the accoqimodation sought to be requisitioned is actually not occupied by any person, it is not necessary to consider the seoond matter. But whether the accommodation proposed to be requisitioned is in the actual occupation of any person or not is a question of fact and cannot satisfactorily be determined unless the person claiming to be occupying it is given a hearing by the District Magistrate. So in every case where the District Magistrate proposes to requisition any accommodation, it will be just artd fair to hear at least the owner of the accommodati-.,n for he may set up a claim that he is actually occupying it.
It is necessary to bear in mind that the Act does not provide for any appeal or revision from the order of the District Magis- trate under s. 3. The District Magistrate is constituted the ple-
nary authority. It seems reasonable to think that the legislature intended that an order under s. 3 should be made after notice and hearing, so that no unfairness is done to anyone.
The High Court rejected the argument of the appellant simply on the ground that the order of requisition deprives the owner of c .A c M. G. AGARWAL v. DIST. MAGISTRATE (Dwivedi, !.)
the property of the use thereof for a temporary period. It is not 11asy to follow what the High Court meant when it said that it was not necessary to follow "a detailed procedure." An elaborate procedure like the one provided for in the Code of Civil Procedure Should undoubtedly be not followed. The dimension of hearing will vary according to the circumstances of each case. The barest minimum, however, is a fair hearing. Notice should be given to the person who will be affected by the order of requisitioning asking him to show why his accommodation should not be re- quisitioned. He should be given reasonable time to file his reply to the notice. In some cases it may b_e necessary to give him an opportunity of producing his oral and documentary evidence. As for instance, where he pleads that he needs the accommodation for his own residence.
The High Court disposed of the point without examining the scheme and setting of s. 3. In our view the scheme and setting of s. 3 imply a notice and hearing to the person who will be affected by the proposed requisitioning order. Counsel for the District Magistrate ha~ submitted that the District Magistrate acts in an administrative capacity under s. 3. According to him, it is not necessary to hear the affected party in an administrative proceeding. He has relied on Province of Bombay v. Bhanji Munji and another(~) and Collector of Ako/a The District Magistrate of Aligarh and others('), The State of Bombay v. Bhanji Munji 11.nd another(') and Collector of Ako/a and others v. Ramchandra and others('). In none of these cases the issue of notice and hearinr, directly arose for consideration. In the first case, certain property was requisitioned under s. 3 of the Bombay Land Requisition Ordinance, 1947, by an order of the'Oovemment, dated February 6, 1948. The order was made before the commencement of the Constitution. It was challenged by a petition in the High Court of Bombay. The petitioner pray- ed for the issue of a writ of certiorari to quash the order. The JJombay High Court issued the writ of certiorari. The argument on behalf of the Government in this Court was that as the
Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial.
The argument that the existence of a public- purpose required judicial considera- tion was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purnose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned under the (I) [1950] S. C. R. 621.
(2) A. !. R. 1952 Allahabad 520. (3) [19551 1 S. C. R. 777. (4) [1968] I S. C. R. 401. .[1973] 2 S.C.R. Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include a temporary as well as a durable purpose. Section 5 of the Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power.
Counsel for the appellant has relied on A. K. Kraipak and others v. Union of India('), Daud Ahmad v. The District Magistrate, Allahabad and others(") and State of Punjab v. K. R. Erry and Sobha11 Rai Mehta('). In A. K. Krai[Jak, certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service.
The selections were made solely on the basis of the record of officers. Their suitability was not decided by' oral or written examination, nor were they interviewed. A. K. Ktaipak contended before this Court that the selections were bad as they were made Without fol!owmg the principles Of
natural justice. The contrary argument was that the principles of natural justice would not apply to the administrative act of .selection of officers for appointment to the Indian Forest Service. Hegde, J. said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being ~radually .obli- terated." At pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it. has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gra- dually evolving the principles to be observed while exercising such powers.
In matters like these, public good is not advanced by a ri\!id adherence to precedents. New problems call for new soh.µions." Assuming that the committee making selection of offi- ters for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the 1 ules of natural justice is to secure iustice or to put it negatively to prevent miscarriage of justice. These rules can ooerate only in areas not covered by any law "<"Jlidlv made.
In other word~. thev do not suoolant the law of the land but supolement it …. If the. numose of the rules of natural justice is to prevent miscarriage. one fails to see whv those rules should be made inaop!icable to administrative· enauiries.
Often times it is not easy to draw the line that demarcates administrative enauiries from judicial en- quiries.. Enquiries which were considered administrative at one time are now beim? considered as quasi-judicial
in character. (i)(l(i70) 1 S. C. R. 457. (2) A. T. R. 1972 S. C. 8%. M. G. AGARWAL v. DIST. MAGISTRATE (Dwivedi, J.) Arriving at a just decision is the aim of both quasi-judicial en- quiries as well as administrative enquiries.
An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry." Jn K. R. Erry, this Court held that the pensionary right of. a B superannuated Government Servant is 'property'
and that his pension cannot be reduced without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad is a direct authority for the point before us.
There the Court was concerned with an order upder s. 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisition- ed by the District Magistrate without notice and hearing.
This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray J.) said: "Th.e principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circum- stances and conditions under which it is exercised that will occa- sion the invocation of the principle of natural justice.
Depriva- tion of property affects rights of a person. If under .the Requisi- tion Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommoda- tion for the petitioner or the District Magistrate was to provide alternative accommodation."
Counsel for the District Magi~Jrate has s\lbmittcd that Da11tl Ahmad is distinguishable from the present case, for there the Court was concerned witllinterpreting the second proviso to s. 3. Daud Ahmad aJ1d K. R. Erry hold that in an enactment which deprives a per,son of his property, there is necessarily implied the F . pre-requisite of hearing.
These cases support our construction !hat notice and hearing to the affected party is necessarily implied in s. 3. It is not disputed on behalf of the District Magistrate that the rcqu~sitioning order was ·made by him without giving notice and hearing to the appellant. .So we hold that his order is illegal. The appeal is allowed with costs.
The order of the District Magistrate dated October 4, 1969 requisitioning the accommoda- tion is quashed. G.C. Appeal allowed ..