Case: The Union Of India Vs. Ram Kanwar And Others

2. One Babu Ram was the owner of Flat No. 5, Agarwal Building, Connaught Circus, New Delhi; respondents 1 to 6 are his sons and widow. By an order dated April 14,1943, the-Government of India requisitioned the said flat under R. 75-A (1) of the Defence of India Rules for a period of one year from April 15, 1943 to April 14, 1944. The said flat was put in the occupation of one Hardie of the Indian National Airways, The period of requisition was extended from time to time, and finally by an order dated April 2, 1946, the flat was requisitioned from April 15,1946, until further orders of the Central Government. After Mr. Hardie vacated the flat, it was allotted to other officers. Babu Ram requested the Government from time to time to de-requisition the said flat for his personal use. He represented that he was suffering from heart trouble and was continuously keeping indifferent health, that two of his sons had got married, and that in those circumstances it had become impossible for him to continue to live in their small house in a narrow lane; but the Government of India rejected his request on the ground that on surrender by the officers of the Indian National Airways it would be required for allotment to Central Government officers. Babu Ram died on October 24, 1951. It appears that four or five months in 1947 the at was vacant and thereafter it was occupied by refugees from West Pakistan. It was afterwards given to the present respondent No. 7, Triveni Kala Sangam. On November 4, 1952, respondent No. 1 again requested the Government to de-requisition the fat mainly on the ground that the said flat was not in use of the officers of the Central Government but was put in possession of Triveni Kala Sangam, which was a private dance and music school. As no reply was given to that request, the said respondent sent a reminder on June 26, 1953, and to that he received a reply to the effect that "the matter is receiving attention and further communication will follow in due course." On September 16, 1953, the Government informed the first respondent that he could execute a lease deed in favour of the Government in respect of the said flat. As the appellants did not put the respondents in possession of the said flat, they had no alternative but to file a petition for a writ of mandamus in the High Court of Punjab. The petition was heard by Falshaw. J., and the learned Judge issued a writ of mandamus on October 19, 1954, directing the appellants to put the respondents in possession of the flat. Against the said order, on November 26,1954, the appellants filed a Letters Patent Appeal in the Circuit Bench of the Punjab High Court at Delhi. The appeal was filed within 30 days from the date of the said order after excluding the time taken for obtaining certified copies of the necessary documents, but more than 20 days thereafter. The appeal was heard by a Division Bench of the said High Court consisting of the Chief Justice and Mehar Singh. J. The learned Judges held that the appeal was filed out of time and that there was not sufficient reason for excusing the delay. They also went into the merits of the case and agreed with Falshaw, J,, that a case had been made out for issuing a writ. With the result that the appeal was dismissed. Hence the present

Reasoning: It is clear from the aforesaid provisions that while under Art. 151 of the Limitation Act a period of 20 days is prescribed for preferring an appeal from an order of the High Court of Punjab in the exercise of its Original Jurisdiction, under R. 4 of the High Court Rules, for an appeal under cl.10 of the Letters Patent a period of limitation of 30 days is provided. If Art. 151 applies, the Letters Patent appeal in the present case was clearly barred. But if R. 4 could be invoked, then the appeal was well within time. The combined effect of the provisions may be stated thus : Under cl. 27 of the Letters Patent, the High Court of Judicature at Lahore has the power to make a rule prescribing the period of limitation in respect of appeals from orders made by that Court in exercise of its Original Jurisdiction to a division bench of that High Court. Under cl. 37 thereof, the provisions of the Letters Patent are subject to the legislative powers of the Governor- General in Legislative Council and therefore any rule made in exercise of a power conferred under the Letters Patent must necessarily be subject to the provisions of the Limitation Act which is a law made by the Legislative Council. Article l5l of the Limitation Act prescribes the period of limitation of 20 days for preferring an appeal against an order trade by the High Court in exercise of its original jurisdiction, and if there is no other limitation on that section, R. 4 of the High Court Rules must give way to the said Article. But S. 29 (2) of the Limitation Act limits the scope of that section, for it says that where a special or local law prescribes for an appeal a period of limitation different from the period prescribed therefor in the said. Schedule, the provisions of S. 3 shall apply as if such period were prescribed therefor in that schedule that is, if there is a special or local law prescribing a period of limitation, it will be deemed to be the period of limitation prescribed by the First Schedule to the Limitation Act in respect of an appeal covered by that rule. To state it differently, if R. 4 is a special law, the Limitation Act itself must be deemed to prescribe the period of limitation mentioned under that rule for the class of cases covered by the said rule, and to that extent the rule derogates from Art. 151 of the First Schedule to the Limitation Act. Art. 151 must be read subject to the special law. In this view, the argument that cl. 37 of the Letters Patent makes the rule made by the High Court subject to the Limitation Act and, therefore, that Art. 15l shall prevail over R. 4 has no force. Briefly stated, the legal position is this :Under- cl. 27 of the Letters Patent the High Court has power to make a rule prescribing the period of limitation for a Letters Patent appeal against an order of a single Judge made in exercise of the original jurisdiction of the High Court, and by reason of cl. 37 thereof, the said rule is subject to the provisions of the Limitation Act; but the Limitation Act itself saves the operation of the said rule. With the result that R. 4 applies to such an appeal, whereas Art. 151 the Limitation Act will govern appeals not covered by R. 4 or appeals from orders made by other High Courts in exercise of their original jurisdiction, if no rule similar to R. 4 is made by the said High Court or Highno notice stating the purpose is contemplated under R. 75A of the Rules. the requisition could have been made only for the four public purposes mentioned in R. 75A of the Rules. We have pointed out that the requisition for the said purposes only continued under the 1947 Act. The purposes for which it was requisitioned must, therefore, be deemed to be the purposes mentioned in R. 75A of the Rules. Even if S. 5 of the Act was excluded on the ground that no notice was issued under R. 75A of the Rules, the proviso to S. 6 of the Act would be attracted. Under that proviso, where the purposes for which any requisitioned property was being used ceased to exist, the Central Government shall release the property, as soon as may be, from requisition. In the present case, on the facts it is manifest that the flat was not used for any of the purposes for which it was requisitioned for a number of years; and indeed, when the Act came into force, it was used only for locating the Triveni Kala Sangam, which is clearly not one of the purposes for which the flat was requisitioned. If so, it must he held that the purpose for which the property was requisitioned ceased to exist and the respondents have acquired a right to be put in possession thereof under the said proviso.12. Even so, the learned Attorney General contends that the purpose for which the building is now utilised, namely for the Triveni Kala Sangam, is a public purpose being the purpose of the Union, within the meaning of S 3 of the Act, and, therefore the respondents are not entitled for de-requisition under the proviso to S. 6 of the Act.13. It is argued that every Union purpose is a public purpose. The argument Proceeds that under the Constitution the Parliament may make laws with respect to any of the matters enumerated in List I of the Seventh Schedule to the Constitution and also in respect of any matters enumerated in List III thereof, that under Art. 73 the executive power of the Union extends to the said matters and that, therefore the requisition of property made for any of the purposes connected with such matters, whether in regard thereof laws were made or not, would be a requisition for a public purpose, being a purpose of the Union, within the meaning of S. 3 (1) of the 1952criterion is not therefore, whether a particular purpose for which a building was used when the Act came into force was a public purpose, being the purpose of the Union, within the meaning of S. 3 of the 1952 Act, but whether it was requisitioned for one of the purposes mentioned in R.75A of the Rules. If those purposes ceased to exist, the proviso to S. 6 of the 1952 Act made it obligatory for the Government to release the property As the flat was being used for a purpose other than that for which it was requisitioned, the respondents were entitled to be put in possession thereof. In this view, we do not propose to express our opinion on the validity of the contention raised by the learned Attorney-General based upon the decision of this Court.