Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Hirdey Narain Kapoor
  • Standing Counsel
  • for Arbitrator
Judges
  • Hon'ble Mr. Bind Bansi Prasad
  • Hon'ble Mr. Ram Narain Gurtu
Acts
  • provisions in Sections 3 and 4 of the Requisitioned Land (Continuance of Powers) Act, 1947
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. XVII of 1947).
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947, (Act XVII of 1947)
  • provisions of the Requisitioned Land (Continuance of Powers) Act, 1947
  • Section 4 of the India (Central Government and Legislature) Act, 1946,
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947,
  • Section 19(1)(b) of the Defence of India Act, 1939 (Act XXXV of 1939),
  • SECTION 21 GENERAL CLAUSES ACT 1897
  • Act according to Sub-section (3) of Section 1
  • Section 3 and to the provisions of Section
  • Rule 75A of the Defence of India Rules.
  • Defence of India Act, 1939.8.
  • Defence of India Act, 1939
  • Powers) Act, 1947.10.
  • Powers) Act, 1947
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Hirdey Narain Kapoor
  • Standing Counsel
  • for Arbitrator
Judges
  • Hon'ble Mr. Bind Bansi Prasad
  • Hon'ble Mr. Ram Narain Gurtu
Acts
  • provisions in Sections 3 and 4 of the Requisitioned Land (Continuance of Powers) Act, 1947
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. XVII of 1947).
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947, (Act XVII of 1947)
  • provisions of the Requisitioned Land (Continuance of Powers) Act, 1947
  • Section 4 of the India (Central Government and Legislature) Act, 1946,
  • Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947,
  • Section 19(1)(b) of the Defence of India Act, 1939 (Act XXXV of 1939),
  • SECTION 21 GENERAL CLAUSES ACT 1897
  • Act according to Sub-section (3) of Section 1
  • Section 3 and to the provisions of Section
  • Rule 75A of the Defence of India Rules.
  • Defence of India Act, 1939.8.
  • Defence of India Act, 1939
  • Powers) Act, 1947.10.
  • Powers) Act, 1947
See more information ...
Smart Summary

Judgment Summary — Bind Basni Prasad, J.

Factual and Procedural Background

This opinion arises from an application under Article 226 of the Constitution filed by the owner of the premises known as "Gopal Niwas" (the applicant) against the State of Uttar Pradesh and Sri M.M. Ansari (appointed District Judge of Unnao), who had been appointed as an arbitrator under Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947.

Key factual and procedural milestones contained in the opinion:

  • 13 August 1943: The District Magistrate of Unnao requisitioned the applicant's house under Rule 75A of the Defence of India Rules for use as the Civil Surgeon's residence.
  • 11 November 1943: A further District Magistrate order stated the house was requisitioned for the Civil Surgeon "until such time as this order is not cancelled."
  • 4 May 1946: The Commissioner of Lucknow communicated to the applicant that Government had ordered restoration of the house to him and that the Civil Surgeon should shift to another house.
  • 8 May 1946 onwards: The applicant sought restoration from the Deputy Commissioner; thereafter he served notices and in November 1946 brought a suit for ejectment of the Civil Surgeon occupying the building. A decree for ejectment was given on 14 April 1947, which was then reversed on appeal by the District Judge of Unnao. A second appeal was filed in 1948 and remained pending before the Lucknow Bench.
  • For compensation: The State appointed an arbitrator under Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947 — initially Sri Babu Ram Verma on 17 March 1950; following his transfer, Sri M.M. Ansari was appointed by notification dated 10 September 1951 to determine the amount of compensation for "Gopal Niwas." The applicant challenged this appointment as illegal and ultra vires.

Legal Issues Presented

  1. Whether the appointment of Sri M.M. Ansari as arbitrator under Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947 for determining compensation in respect of "Gopal Niwas" was legal or ultra vires.
  2. Whether the State Government's order communicated on 4 May 1946 amounted to a derequisition (cancellation of the requisition) such that the building was not "requisitioned land" at the commencement of the Requisitioned Land (Continuance of Powers) Act, 1947 and therefore not within the scope of that Act.
  3. Whether, in the absence of an express provision in Defence of India Rule 75A for release from requisition, the power to rescind a requisitioned order nevertheless existed (including by virtue of Section 21 of the General Clauses Act, 1897 and general principles of administrative power).

Arguments of the Parties

Applicant's Arguments

  • The applicant contended that the State Government's communication dated 4 May 1946 constituted derequisition or cancellation of the requisition, so that at the commencement of the Requisitioned Land (Continuance of Powers) Act, 1947 the building was not subject to requisition under the Defence of India Act, 1939 and the associated rules.
  • Consequently, the applicant argued, the Requisitioned Land (Continuance of Powers) Act, 1947 did not apply to his property and the appointment of an arbitrator under Section 6 of that Act to determine compensation was illegal and ultra vires.
  • The applicant also provided factual assertions about the property's nature, area, value, improvements (e.g., wire fencing), seizure of movables, and dates of possession and litigation relevant to his claim for compensation.

Standing Counsel for the State's Arguments

  • Learned Standing Counsel argued that the 4 May 1946 order did not amount to derequisition because Rule 75A of the Defence of India Rules did not expressly provide for release from requisition; specific release procedures appeared only in the Requisitioned Land (Continuance of Powers) Act, 1947.
  • He contended that the May 4, 1946 communication was defective in form and therefore did not cancel the requisition made under the Defence of India Rules.
  • He also pointed to the fact that the applicant actually obtained possession only on 17 September 1947 — after the commencement of the Requisitioned Land (Continuance of Powers) Act — suggesting the property remained effectively requisitioned at the relevant date.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded in a structured manner, focusing on statutory texts and general principles rather than case precedents:

  1. Statutory context and object of the Requisitioned Land (Continuance of Powers) Act, 1947:

    The court noted the Act's preamble which stated its object was to provide for the continuance of certain powers in relation to land that "when the Defence of India Act, 1939 expired, was subject to any requisition effected under the rules made under that Act." The definition of "requisitioned land" in Section 2(4) was emphasized: land which "at the commencement of this Act is subject to any requisition effected under the rules made under the Defence of India Act, 1939."

  2. Temporal and legislative boundaries:

    The court referenced Sub-section (3) of Section 1 of the Requisitioned Land Act providing that the Act would cease on the expiration of the period in Section 4 of the India (Central Government and Legislature) Act, 1946, and that by an Adaptation of Laws Order, 1950 that Act had effect only up to 1 April 1951 — points used to explain the limited and temporal scope of the 1947 Act.

  3. Was the 4 May 1946 order a derequisition?

    The court examined the 4 May 1946 Government order restoring the house to the applicant and directing the Civil Surgeon to shift elsewhere. The State argued the Defence of India Rules contained no provision for release; the court observed Rule 75A did not expressly provide for release but also did not prohibit it.

  4. Power to rescind and the role of Section 21, General Clauses Act, 1897:

    The court relied on Section 21 of the General Clauses Act, 1897, which provides that where a Central Act confers power to issue orders, the power includes a power to rescind such orders in like manner and subject to like sanctions and conditions. The court held that this supported the existence of a power to rescind a requisition order made under central legislation or rules.

  5. Principles of implication and form versus substance:

    On general principles, the court observed that an authority with power to requisition ordinarily has, by implication, the power to cancel a requisition and release the property. Where a specific form is required by law, that form must be followed; but Rule 75A prescribed no particular form for release, so the substance of the 4 May 1946 order had to be considered. The 4 May 1946 communication was clear in stating the Government had ordered restoration, and that the Civil Surgeon should shift. The fact that the applicant could only secure physical possession later (after pursuing court remedies) did not negate the legal effect of derequisition.

  6. Interaction with the Requisitioned Land (Continuance of Powers) Act, 1947:

    The court further reasoned that Sections 3 and 4 of the Requisitioned Land Act expressly provide for release from requisition, but these provisions were viewed as enacted "for abundance of caution." Their existence did not imply that no earlier power to rescind existed under the Defence of India Rules. Given the court's conclusion that the 4 May 1946 order effectively cancelled the requisition, the property was not "requisitioned land" at the commencement of the Requisitioned Land Act, 1947.

  7. Conclusion on arbitrator's appointment:

    Because the building was held not to be subject to requisition at the relevant commencement date, the court concluded the Requisitioned Land Act did not apply to it; consequently the appointment of Sri M.M. Ansari as arbitrator under Section 6 of that Act to determine compensation was illegal and ultra vires.

Holding and Implications

Holding: The application under Article 226 was allowed. The court held that the 4 May 1946 order restored the building to the applicant (i.e., amounted to derequisition), that the Requisitioned Land (Continuance of Powers) Act, 1947 did not apply to this building at its commencement, and that the appointment of Sri M.M. Ansari as arbitrator under Section 6 of that Act to determine compensation was illegal and ultra vires. A writ of prohibition was issued restraining the respondents from proceeding further with the determination of the amount of compensation payable to the applicant in pursuance of Government Notification No. A-4439-XXV/CX-343/1945 dated 10 September 1951. The application was allowed with costs.

Implications (direct effects):

  • The immediate practical consequence is that the arbitration proceedings initiated under the 10 September 1951 notification must cease; the State is restrained from proceeding with determination of compensation under the impugned appointment.
  • The court ordered return of the applicant's certified copies on the condition that he files true (non-certified) copies for comparison, a direction accepted by Learned Standing Counsel subject to that condition.
  • No broader precedent or novel legal principle beyond the direct application of statutory interpretation and general principles (as set out above) is announced in the opinion; the decision rests on the court's interpretation of the statutory scheme and the legal effect of the 4 May 1946 order in the circumstances narrated.

Disposition: Application allowed; writ of prohibition issued; costs awarded to applicant; documents to be returned on specified conditions.

Show full summary ...

    Durga Prasad v. State Of Uttar Pradesh

    Bind Basni Prasad, J.:— This is an application under Article 226 of the Constitution directed against the State of Uttar Pradesh and Sri M.M Ansari, District Judge of Unnao, who has been appointed also as an arbitrator under Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. XVII of 1947). The contention is that the appointment of Sri M.M Ansari as an arbitrator in the dispute for compensation which has arisen between the applicant and the State of Uttar Pradesh is illegal and ultra vires. The prayer, therefore, is for the issue of a writ of prohibition against the opposite parties restraining them from proceeding further with the proceedings for the determination of the amount of compensation payable to the applicant. The relevant facts are as follows:—

    2. The applicant is the owner of the premises known as “Gopal Niwas” situated in the Civil Lines of the city of Unnao. It was requisitioned by the District Magistrate of Unnao on the 13th August, 1943, under Rule 75A of the Defence of India Rules. The order of requisition is as follows:—

    “Whereas it is necessary for public safety and to maintain the medical services essential for the life if the community that Civil Surgeon, Unnao, should have suitable residence, I, T.N Kaul, District Magistrate, Unnao, hereby requisition under Rule 75A of the D.I.R powers under which have been delegated to me by notification No. 3862 G.C.C.D dated 7.5.1942, the building in the Civil Lines belonging to Rai Bahadur Lala Durga Prasad and at present occupied by Major S.S Gupta, Civil Surgeon, for the residence of Dr. R.S Gupta, the new Civil Surgeon, Unnao, on the same rent as paid by Major S.S Gupta hereto.

    “Any contravention of this order shall be punishable with imprisonment for a term which may extend to 3 years or with fine or with both.”

    3. On the 11th November, 1943, another order was passed by the District Magistrate in the following terms:—

    “In furtherance of my order dated the 13th August, 1943, under Rule 75A of the Defence of India Rules which did not specify the period for which the Civil Surgeon's house was requisitioned I hereby order that the said house is requisitioned for the use of the Civil Surgeon, Unnao, whoever he may happen to be until such time as this order is not cancelled.”

    4. The applicant's contention is that the premises consist of “a large spacious bungalow and a beautiful garden.” A fruit orchard situated close to the house and owned by the applicant is also said to have been taken possession of with the said premises. The total area of the land thus taken over was 60,-165 square ft. It is said that the property was very well maintained and was in good condition at the time of the requisition. A wire fencing valued at Rs. 2,400 is said to have been added to the property under the orders of the authorities. The property is said to have been of the value of Rs. 1,08,434. It is also alleged that the movables worth four to five, hundred rupees were also seized along with this property. The property admittedly remained under requisition upto the 4th May, 1946 when the applicant received the following communication from the Commissioner of Lucknow:—

    “You are informed that Government has ordered that your house should be restored to you and the Civil Surgeon should shift to some other house. The Deputy Commissioner, Unnao, has been advised accordingly.”

    5. On the 8th May, 1946, the applicant approached the Deputy Commissioner of Unnao for the restoration of the property to him. It is alleged that the Deputy Commissioner ordered that the necessary steps were being taken for the restoration of possession. On the 7th October, 1946, the applicant served a notice on the Chief Secretary and Dr. Yar Muhammad Siddiqi, the then Civil Surgeon of Unnao, who was then occupying this building. In November 1946, he brought a suit for the ejectment of Dr. Siddiqi. It is said that he obtained permission of the trial court to sue subsequently for arrears of rent and for damages. The suit for ejectment was decreed on the 14th April, 1947. There was an appeal against that decree by Dr. Siddiqi to the District Judge of Unnao who reversed the decree of the Civil Judge and held that the order of the Government did not amount to derequisition. The applicant filed a second appeal in 1948 which is still pending before the Lucknow Bench of this Court. This closes one chapter of the dispute. As regards the compensation payable to the applicant the State Government acting under Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947, first appointed Sri Babu Ram Verma, the then District Judge of Unnao, as an arbitrator on the 17th March, 1950. Sri Babu Ram Verma was transferred from Unnao and by the order dated the 10th September, 1951, Sri M.M Ansari, the present District Judge of Unnao, has been appointed as the arbitrator. The order runs as follows:—

    “In super session of Notification No. A-456-XXV/CX, dated March 17, 1950 and in exercise of the powers conferred by Section 6 of the Requisitioned Land (Continuance of Powers) Act, 1947, (Act XVII of 1947) the Governor of Uttar Pradesh is pleased to appoint Sri M.M Ansari, District Judge, Unnao, vice Sri Babu Ram Verma transferred, as arbitrator under Section 19(1)(b) of the Defence of India Act, 1939 (Act XXXV of 1939), for determining the amount of compensation, if any, payable to the owner of the building known as ‘Gopal Niwas’, Civil Lines, Unnao.” A copy of this order was forwarded to the applicant as the owner of the house.

    6. The contention by the applicant is that this order is illegal. He has based this contention on various grounds, but it is sufficient to consider only one of them as it is enough to dispose of the matter. The preamble to the Requisitioned Land (Continuance of Powers) Act, 1947 provides as follows:

    “Whereas it is expedient to provide, in relation to land which, when the Defence of India Act, 1939, expired, was subject to any requisition effected under rules made under that Act, for the continuance of certain powers theretofore exercisable under the said Act of the said rules.”

    7. It is clear that the object was the continuance of the powers of requisition for a certain period. This Act according to Sub-section (3) of Section 1 was to cease to have effect on the expiration of the period mentioned in Section 4 of the India (Central Government and Legislature) Act, 1946, except as respects things done or omitted to be done before the expiration thereof. By the Adaptation of Laws Order, 1950, it was provided that the last mentioned Act shall have effect only up to the 1st day of April, 1951. The scope of the Act will be apparent from the definition of the expression “requisitioned land” given in Sub-section (4) of Section 2. The definition provides:

    “‘requisitioned land’ means immovable property which at the commencement of this Act is subject to any requisition effected under the rules made under the Defence of India Act, 1939.”

    8. The applicant's contention is that when the order of the State Government dated the 4th May, 1946, was communicated to him by the Commissioner of Lucknow it amounted to derequisition and as such on the date of the commencement of the Requisitioned Land (Continuance of Powers) Act, 1947 this building was not subject to requisition effected under the rules made under the Defence of India Act, 1939 and that being so the first mentioned Act is not applicable to this building.

    9. Learned Standing Counsel contends that the order, dated the 4th May, 1946 does not amount to de-requisition. He argues that there was no provision in the Defence of India Rules for de-requisitioning of property and it is only in the Requisitioned Land (Continuance of Powers) Act, 1947 that there are provisions for the release from requisition. He invites our attention to the proviso to Section 3 and to the provisions of Section 4. He contends further that the order which was communicated to the applicant was defective in form and had not the effect of cancelling the requisition made under the Defence of India Rules. He points out also that in fact the applicant was able to get possession of this building on the 17th September, 1947, that is to say, after the commencement of the Requisitioned Land (Continuance of Powers) Act, 1947.

    10. It is true that the Defence of India Rule 75A does not expressly provide for the release of property from requisition, but there is no prohibition also in that rule to that effect. We are of opinion, that, having regard to the provisions of Section 21 of the General Clauses Act, 1897, the power to rescind the order of requisition existed. That section provides that where by any Central Act a power to issue orders is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind that order. On general principles also where an authority has got power to requisition a property, by implication it possesses the power to cancel the requisition and release the property. The express provisions in Sections 3 and 4 of the Requisitioned Land (Continuance of Powers) Act, 1947 for release from requisition are in our view for abundance of caution and it cannot be inferred from these provisions that their absence in the Defence of India Rule 75A means that such a power did not exist. Where a law prescribes a particular form for an order that form must be followed, but where no such form has been prescribed then the pith and substance of the matter must be seen and not the form. The Defence of India Rule 75A does not prescribe any form for release from requisition. The order dated the 4th May, 1946, passed by the State Government and communicated by the Commissioner of Lucknow to the applicant is clear enough that from that day onward the State Government took no responsibility about the property as an authority which had requisitioned it. It is a different matter that the applicant was able to obtain possession actually on the 17th September, 1947. In the order dated the 4th May, 1946, the Civil Surgeon for whose residence the bungalow was requisitioned was ordered to shift to some other house. If he did not shift the, applicant could not take the law into his own, hands. He had to seek redress in a court of law and that is what he actually did and was, during the pendency of the litigation, able to obtain possession on the 17th September, 1947 when the Civil Surgeon, Dr. Yar Muhammad Siddiqi, was transferred. We are of the opinion that when the State Government passed the order dated the 4th May, 1946, restoring the building to the applicant and directing the Civil Surgeon to shift to some other house the building was de-requisitioned or the requisition was cancelled. From that day there was no obstacle in the way of the applicant to take possession of the house by due process of law. It is a building to which the provisions of the Requisitioned Land (Continuance of Powers) Act, 1947 did not apply as it was not under requisition on the date of the commencement of this Act, and that being so the appointment of Sri M.M Ansari as arbitrator under Section 6 of the said Act for determination of the amount of compensation payable to the applicant for the building known as ‘Gopal Niwas’ was illegal and ultra vires.

    11. The application is allowed with costs and a writ of prohibition is issued to the opposite parties restraining them from proceeding further with the determination of the amount of compensation payable to the applicant for the building known as ‘Gopal Niwas’ situated in the Civil Lines, Unnao, in pursuance of the Government Notification No. A-4439-XXV/CX-343/1945, dated the 10th September, 1951. The applicant Durga Prasad desires that the certified copies which he has filed may be returned to him as he would require them in connection with some other proceedings that he wishes to take and they would cost him about Rs. 50 or 60 Learned Standing Counsel has no objection to this provided, he files true copies of those documents. Let the documents filed by the applicant fee returned to him on his filing true copies which need not be certified copies. These true copies will be compared by the office with the copies on the record.

    12. Application allowed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Durga Prasad v. State Of Uttar Pradesh
    (Jul 30, 1952)