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Krishna Khandelwal v. Director Of Lands, Hirings & Disposals And Ors. Opposite Parties.
Structured Summary of the Opinion
Factual and Procedural Background
The petition was brought under Article 226(1) of the Constitution by two women residents of No. 3, Ashutosh De Lane, Calcutta, seeking restoration of possession of plot No. 352, Southern Avenue Extension (area: 47 cottas; built-up area: 17 cottas) and other reliefs. The opposite parties included: (1) Director of Land, Hirings and Disposal, Eastern Command; (2) Assistant Director of Land, Hirings and Disposal, Eastern Command; (3) State Manager, Government of India States, Calcutta Area; (4) Land Acquisition Collector, Calcutta; and (5) Postmaster-General, Bengal Circle.
Procedurally, a Rule was issued calling on the opposite parties to show cause why a writ in the nature of mandamus should not be issued and possession restored. The petition was supported by an affidavit sworn by Chandalal Khandelwal (husband of petitioner No. 2); the opposite parties filed a counter-affidavit sworn by opposite party No. 3; and a further affidavit for the petitioners was sworn again by Chandalal Khandelwal.
The disputed land was first requisitioned on 8 May 1943 under Rule 75(a) of the Defence of India Rules; possession was delivered to the Land Acquisition Collector on 25 May 1943 and the land was de-requisitioned on 3 July 1943. The petitioners claimed compensation (Rs. 16,555) on 19 October 1943; that claim was settled for Rs. 1,200, which the petitioners allege was not voluntary. The premises were again requisitioned on 11 March 1944. On 30 May 1945 the petitioners entered an agreement with the Government that the Government would remain in possession for the requisition period and pay Rs. 600 per month as compensation. From 19 May 1949 the petitioners demanded refixation of compensation; they allege their demands were ignored and thus sought relief under Article 226(1).
Legal Issues Presented
- Whether, upon successive legislative continuations of requisition powers after expiry of the Defence of India Act, a fresh order of requisition was necessary for continued lawful occupation (i.e., whether old requisitions continued in force without fresh orders).
- Whether the second requisition and continued possession were tainted by mala fides (bad faith) or improper motive, including whether delay and low compensation established such mala fides.
- Whether the Requisitioned Land (Continuance of Powers) Act, 1948 (Act XVII of 1947) is void under Article 31 of the Constitution as depriving the petitioners of property otherwise than by authority of law.
- Whether the impugned legislation is invalid under Article 14 of the Constitution (alleged discrimination in requisition and administration of compensation).
- Preliminary questions raised by the opposite parties: (a) whether the Union of India is a necessary party to the proceedings; (b) whether this Court has jurisdiction under Article 226(1) to grant relief against the Union of India because of location/jurisdictional concerns; and (c) whether the petition was defective for not being supported by the affidavit of the petitioners themselves.
Arguments of the Parties
Petitioners' Arguments
- A fresh order of requisition was required each time the legislative basis for requisition changed; in the absence of fresh orders the continued occupation is unlawful.
- The second requisition (and continued possession) was mala fide — inter alia because the compensation awarded for the first requisition was unduly low and the petitioners were compelled to accept a small settlement.
- The Requisitioned Land (Continuance of Powers) Act, 1948 is constitutionally invalid under Article 31 (deprivation of property without proper authority) and under Article 14 (discrimination).
- The arbitration clause (clause 5) in the 1945 agreement is oppressive and unmeaning because the Government can nominate the arbitrator and thereby delay or control the process.
Opposite Parties' Arguments
- The Union of India (on whose behalf requisition was made) is a necessary party to the application.
- Assuming the Union is a necessary party, this Court has no jurisdiction under Article 226(1) to issue the writs sought against the Union because the Union is not within the Court's territorial jurisdiction.
- The petition is defective and should be dismissed because it is not supported by an affidavit of any of the petitioners themselves.
- On the merits, the opposite parties denied allegations of mala fides, improper motive and undue delay in fixing compensation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lloyds Bank Limited v. The Lloyds Bank Indian Staff Association (Calcutta Branches) — Bench decision disposed 17 January 1951 (referred to under Ch. V, Rule 3 of the Original Side Rules) | Authority on whether relief can be granted under Article 226 against the Union of India and related jurisdictional practice. | The Court noted that this matter "has been answered in favour of the Union" by that Bench decision and relied on that answer when considering jurisdictional objections raised by the opposite parties. |
| P.K. Banerjee v. L.J. Simonds (A.I.R. 1947 Cal. 307) | Interpretation of affidavit requirements under Section 45 (and Section 46) of the Specific Relief Act: whether a petition is properly supported by a manager's affidavit rather than the petitioner. | The Court distinguished this decision as it concerned the Court's Ordinary Original Jurisdiction and the Specific Relief Act; therefore the strict affidavit requirement there did not apply to the present Article 226 petition. The Court refused to apply that case's rule to dismiss the petition for want of a petitioner-sworn affidavit. |
Court's Reasoning and Analysis
The Court addressed each contention in turn and explained the legal basis for acceptance or rejection of the arguments strictly on the materials before it.
1. Continuity of Requisition Power: The Court examined the statutory mechanism by which requisition powers were continued after expiration of the Defence of India Act (Act XXXV of 1939). It noted the Defence of India Act expired six months after the official termination of the War, and that the power to requisition was preserved first by the Requisitioned Land (Continuance of Powers) Ordinance, 1946, and later by the Requisitioned Land (Continuance of Powers) Act, 1948 (Act XVII of 1947). The Court quoted Section 3 of the 1948 Act, which provides that "all requisitioned lands shall continue to be subject to requisition until the expiry of this Act" and allows the appropriate Government to use or deal with requisitioned land. On that statutory text the Court concluded that an earlier requisition remains in force under successive continuance statutes without any fresh order being necessary; therefore the petitioners' contention that fresh orders were required was overruled.
2. Mala Fides and Delay: The petitioners alleged mala fides grounded in low initial compensation, coercion to accept a small settlement, delay in refixing compensation, and an oppressive arbitration clause. The opposite parties denied mala fides. The Court observed that the Rule issued dealt only with derequisitioning and not with the precise amount of compensation. It held that delay alone does not establish an improper motive, and that the petitioners had not discharged the burden to show mala fides. The allegation that petitioners were compelled to accept a small sum was traversed by opposite parties and not proved. Consequently, the Court overruled the mala fides contention.
3. Article 31 Challenge (Deprivation of Property): The petitioners argued the 1948 Act was void under Article 31 because it operated to deprive them of possession. The Court held that Article 31(1) was not contravened because possession had been taken under a valid legislative provision. It further held that Article 31(2) did not apply adversely because the impugned legislation was enacted more than eighteen months before the Constitution came into force and was therefore saved by Articles 31(5)(a) and 31(6). This challenge was therefore overruled.
4. Article 14 Challenge (Equality/Non-Discrimination): The petitioners alleged local officers discriminated against them compared with nearby landowners. The Court explained that such a local administrative decision cannot be equated with discrimination of the kind contemplated by Article 14 and therefore that contention failed.
5. Preliminary Objections — Parties and Jurisdiction: The Court addressed whether the Union of India was a necessary party and whether relief could be granted against the Union under Article 226. The Court referred to pre-Constitution practice (Short & Mellor's The practice of the Crown office) and noted that writs should be issued on persons interested in supporting the legal process; while it was unclear whether the requisition was on behalf of the Union, the Court considered that a further notice to the Union could be issued if necessary. The Court also referred to the Lloyds Bank Bench decision (January 1951) as having "answered in favour of the Union" the related jurisdictional question.
6. Preliminary Objections — Affidavit Support: Concerning the complaint that the petition was not supported by an affidavit of the petitioners themselves, the Court examined procedural rules. It noted Rule 43, Ch. II, Part II of the Appellate Side Rules and the Rule 6 of Order XXXV of the Supreme Court Rules, 1950, which require an affidavit but do not state it must be sworn by the petitioners personally. The Court distinguished P.K. Banerjee v. L.J. Simonds (which applied strict Specific Relief Act requirements in ordinary original jurisdiction cases) and observed practical difficulties in insisting on petitioner-sworn affidavits in all circumstances (e.g., corporations, illiterate petitioners). On these grounds the Court found the affidavit sworn by the husband of petitioner No. 2 to be sufficient compliance and overruled the objection.
7. Conclusion of Analysis: After resolving these points, the Court stated it had already held that the petition failed on the merits.
Holding and Implications
Core Ruling: The Rule issued on the petition is discharged.
Consequences and immediate effects:
- The petition seeking derequisition and restoration of possession was dismissed on the merits.
- Costs were awarded to the appearing opposite parties; the hearing fee was assessed at five gold mohurs.
- The Court rejected the petitioners' challenges that (a) a fresh requisition order was required after the enactment of continuance statutes, (b) the requisition was mala fide, (c) the Requisitioned Land (Continuance of Powers) Act, 1948 contravened Article 31, and (d) there was a violation of Article 14.
Broader implications: The opinion resolves the specific disputes between these parties and interprets Section 3 of the Requisitioned Land (Continuance of Powers) Act, 1948 as preserving existing requisitions without fresh orders; it also clarifies that practical considerations may permit affidavits by persons other than the petitioners in Article 226 petitions under the procedural rules cited. The Court did not state that it was laying down any new broad precedent beyond its rulings in the particular case.
The Judgment of the Court was as follows:
1. This Rule was obtained by the petitioners calling upon the opposite paries to show cause why a writ in the nature of mandamus should not be issued and possession of the premises mentioned in the petition should not be restored to the petitioners or such other or further order should not be made as to this Court may seem fit and proper.
2. The petitioners are two ladies who are residents of No. 3, Ashutosh De Lane in the city of Calcutta. The opposite parties to the Rule are: (1) Director of Land, Hirings and Disposal, Eastern Command, (2) Assistant Director of Land, Hirings and Disposal, Eastern Command, (3) State Manager, Government of India States, Calcutta Area, (4) Land Acquisition Collector, Calcutta, and (5) Postmaster-General, Bengal Circle. The petition was supported by an affidavit of Chandalal Khandelwal, husband of petitioner No. 2. The counter-affidavit on behalf of the Opposite parties was sworn to by opposite party No. 3. The further affidavit on behalf of the petitioners was also sworn to by Chandalal Khandelwal, husband of petitioner No. 2.
3. The premises in respect of which the dispute has arisen is plot No. 352, Southern Avenue Extension. The area of the said plot is 47 cottas out of which 17 cottas is alleged to be covered with buildings. The petitioners are the owners of the said premises. On the 8th of May, 1943, the aforesaid premises were requisitioned under Rule 75(a) of the Defence of India Rules and the petitioners were directed to place at the disposal of the Additional Land Acquisition Collector the said premises from the 20th of May, 1943. In pursuance of the said requisition possession of the said premises was delivered to the Land Acquisition Collector on the 25th of May, 1943. The premises were de-requisitioned on the 3rd of July, 1943. On the 19th of October, 1943, the petitioners submitted a bill claiming compensation to the tune of Rs. 16,555.
4. On the 11th of March, 1944, the said premises were again requisitioned under Rule 75(a) of the Defence of India Rules. The petitioners allege that the premises were placed in the possession of the military authorities and thereafter they are in the possession of the employees of the Postal Department who have opted to West Bengal from East Pakistan. It may be noted that the bill which was submitted by the petitioners claiming Rs. 16,555 was settled for a sum of Rs. 1,200. The petitioners allege that this settlement was not a voluntary one. On the 30th of May, 1945, the petitioners entered into an agreement with the Government that the latter would remain in possession of the said premises for the period of the requisition and a sum of Rs. 600 per month was settled as the compensation to be paid to the petitioners for the occupation by the Government. On the 19th of May, 1949, and thereafter there were demands by the petitioners for payment of adequate compensation. The petitioners allege that these demands were unheeded by the opposite parties. The petitioners, therefore, allege that they have made a demand for justice and that they have accordingly made this application under Art. 226(1) of the Constitution.
5. Mr. Roy appearing on behalf of the petitioners has raised several contentions. In the first place, he contends that there should have been a fresh order made under the different legislations extending the operation of the Defence of India Act for requisitioning the premises. He also contends that the requisition of the premises was a mala fide one. He also contends that the impugned legislation, namely, the Requisitioned Land (Continuance of Powers) Act, 1948 (Act XVII of 1947), is void of the Constitution under Art. 31 thereof. He also contends that the said Act is void under Art. 14 of the Constitution.
6. On behalf of the opposite parties Mr. Meyer has raised certain preliminary objections. In the first place, he contends that the Union of India on whose behalf the requisition was made was a necessary party to the application. In the second place, he contends that assuming that the Union of India is a necessary party, this Court has no jurisdiction under Art. 226(1) of the Constitution to issue the writs prayed for. He also contends that the petition should be thrown out on the ground that it is not supported by the affidavit of any of the petitioners. I shall deal with these preliminary contentions after I have disposed of the contentions raised on behalf of the petitioners.
7. As regards the first contention raised by Mr. Roy, it is not disputed that the powers to requisition the premises for the purposes for which they were requisitioned have been continued by successive legislations passed since the expiry of the Defence of India Act. The Defence of India Act (Act XXXV of 1939) expired six months after the official termination of the War. The power to requisition was, however, preserved by Requisitioned Land (Continuance of Powers) Ordinance, 1946. The power was further continued by the Requisitioned Land (Continuance of Powers) Act, 1948 (Act XVII of 1947). The question which has been urged is that on every occasion that the power was continued by the different Acts, a fresh order of requisition was necessary and in the absence of such orders the opposite parties had no right to continue in possession and their possession must be deemed to be that of trespassers.
8. Sec. 3 of the Requisitioned Land (Continuance of Powers) Act, 1948, runs as follows:
“Notwithstanding the repeal of the Defence of India Act, 1939 (Act XXXV of 1939), and the rules made thereunder and the repeal of the Ordinance of 1946 (XIX of 1946), all requisitioned lands shall continue to be subject to requisition until the expiry of this Act and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to be expedient— provided that the appropriate Government may at any time release from requisition any requisitioned land.”
9. The section expressly states that the requisition made shall continue which means, in my opinion, that the old requisition continues in force without any fresh order made under the different Statutes. The operation of the requisition which was made under the Defence of India Rules in 1944 must therefore be deemed to, have continuous operation in spite of the fact that the power of requisition was conferred by different legislative enactments and Ordinances from time to time. The first contention raised by Mr. Roy must therefore be overruled.
10. The second contention raised concerns the mala fides of the opposite parties in requisitioning the premises for the second time. It is pointed out that the compensation which was awarded by the opposite parties for the period of the first requisition was unduly low. It was also pointed out that the petitioners have been compelled to agree to a monthly payment of Rs. 600 as compensation in spite of the fact that the premises in question cover an area of 47 cottas in Southern Avenue Extension and the built-up area measures 17 cottas. It is also pointed out that the opposite parties have been unnecessarily delaying compliance with the demands made for refixing the amount of compensation. It is also pointed out that clause 5 which contains an agreement to refer disputes to arbitration is unmeaning and oppressive because the clause confers on the Government the power of nominating an arbitrator which means that the Government may refuse or may make unreasoned delay in appointing the arbitrator and the arbitrator would be a person to be nominated by the party liable to pay compensation.
11. On behalf of the opposite parties the allegations of mala fides and unnecessary delay and the presence of an improper motive in requisitioning the premises once again have been denied. The Rule which was issued by this Court merely refers to the prayer of the petitioners for the derequisitioning of the premises. No Rule was issued as regards the amount of compensation to be paid in respect of the premises. The mere fact that there has been delay in refixing the compensation is not sufficient to show that the opposite parties were actuated by an improper motive. The allegation that the petitioners were compelled to accept a small sum as compensation for the period of the first requisition has been traversed on behalf of the opposite parties. In these circumstances in my opinion the petitioners have failed to discharge the burden which rested on them to show mala fides on the part of the opposite parties. The second contention raised on behalf of the petitioners must also be overruled.
12. The third contention raised by Mr. Roy concerns the validity of the impugned legislation. It is contended that the impugned legislation is void of Art. 31 of the Constitution because the effect of the requisition is to deprive the petitioners of the possession of their lands. It cannot be disputed that Art. 31(1) of the Constitution has not been transgressed because possession has been taken under a valid piece of legislation. Art. 31(1) of the Constitution merely says that no person shall be deprived of his property save by authority of law. Nor has Art. 31(2) of the Constitution been contravened. The impugned legislation was passed more than 18 months before the Constitution came into force. It is therefore saved by the Arts. 31(5)(a) and 31(6) of the Constitution. This contention must therefore be overruled.
13. It is further contended that the impugned legislation is void of Art. 14 of the Constitution. Art. 14 of the Constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This means that every person has a right to protection of equal laws. It is not suggested that the impugned legislation suffers from this defect. What is contended for is that in the matter of the requisition of the disputed premises the local officers have discriminated the petitioners from other persons owning lands nearabout. This cannot be regarded as discrimination within Art. 14 of the Constitution. This contention must also be overruled.
14. It now remains for me to consider the preliminary objections raised by Mr. Meyer.
15. It is first contended that the Union of India must be made a party to these proceedings. The question as to the parties on whom these prerogative writs can be issued depends largely on the practice which prevailed before the Constitution came into force. The matter is dealt with in Short & Mellor's “The practice of the Crown office”. It is obvious that the writs should be served on all persons interested in supporting the legal process which was the occasion for the petitioners seeking relief under Art. 226(1) of the Constitution. It does not appear that in the present case the petitioners cannot get adequate relief by a direction on the opposite parties. The order of requisition was made by the Land Acquisition Collector, Calcutta. It is not clear as to whether the requisition was made on behalf of the Union of India but even so, in my opinion, this may be a ground for issuing a further notice on the Union of India. It is also contended by Mr. Meyer that no relief can be granted under Art. 226 as against the Union of India because the Union of India is not located within the jurisdiction of this Court. This matter has been answered in favour of the Union by a Bench of this Court in the matter of Case reported under Ch. V, Rule 3, of the Original Bide Rules and In the matter of Lloyds Bank Limited v. The Lloyds Bank Indian Staff Association (Calcutta Branches) (1) disposed of on the 17th of January, 1951. It is also contended that the petition should be thrown out on the ground that it is not supported by the affidavit of the petitioners. Reference was made to the case of P.K Banerjee v. L.J Simonds (2) (A.I.R 1947 Cal. 307). The decision relied on is a Bench decision of this Court and concerned an application under Sec. 45 of the Specific Relief Act. The Bench was of the opinion that the petition in that case which was supported by an affidavit of the Manager of the petitioners and on which the Rule was issued did not fulfil the statutory requirements of Sec. 46 of the Specific Relief Act. The Bench also held that the defect was not cured by the fact that the affidavit in reply was sworn to by the petitioner himself. That case, however, is distinguishable from the facts of the present case. That was a case which related to a subject-matter which was situated within the Ordinary Original Jurisdiction of this Court. Sec. 46 of the Specific Relief Act was therefore attracted. It is not necessary for me to consider whether the procedure which was held to be obligatory in that case would have to be followed in applications under Art. 226(1) of the Constitution. This is a matter with which I am not concerned. In the present case the disputed property is situate in Southern Avenue Extension. The requisition was made of that property. The subject matter in dispute is therefore property which is outside the Ordinary Original Jurisdiction of this Court. The prayer for derequisition and restoration of possession has also to be complied with at a place outside the said jurisdiction. The question therefore arises whether in such cases the petition must be supported by the affidavit of the persons swearing the petition. Rule 43, Ch. II, Part II of the Appellate Side Rules lays down that the procedure in applications on the Appellate Side must conform to the procedure which is adopted in Civil Revision cases on the Appellate Side. There are no specific rules on the Appellate Side which require that the petition should be supported by the affidavit of the petitioners themselves. The rules of the Supreme Court, 1950, do not lay down that the affidavit supporting a petition under Art. 32 of the Constitution must be sworn to by the petitioners themselves. Rule 6 of Order XXXV of the Rules of the Supreme Court, 1950, merely says that the application for a writ under Art. 32 shall be supported by an affidavit. It does not state that the persons swearing the affidavit must be the petitioners themselves. A strict compliance with these requirements may lead to complexities. The petitioner may be a Corporation or the petitioner may be a person who is illiterate, deaf and dumb, in which case it would be impossible for the petitioner to strictly comply with the requirements contended for. In such cases even in an application under Sec. 45 of the Specific Relief Act the rule was relaxed if the petitioners sufficiently explained the reason for their inability to verify the petition. In these circumstances, I am of the opinion that the affidavit of the husband of one of the petitioners is a valid compliance with the requirements of the law. This objection, in my opinion, cannot be given effect to.
16. I have already held that the petition fails on the merits.
17. The Rule is accordingly discharged with costs to the appearing opposite parties,— hearing fee being assessed at five gold mohurs.
A.K.D.G
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