Roy Estate vs State Of Jharkhand & Ors

after a string of victories over the Allies in South East Asia and

upto Burma brought the Imperial Japanese Army to India's

Eastern doorstep. It was thereafter thought prudent to shift

the headquarters of the Indian Army's Eastern Command from

Kolkata to Ranchi. Vast areas of land and other residential

property were accordingly requisitioned under Rule 75 (A) ibid.

Katras House too was requisitioned for this purpose. The

World War ended in 1945 but the property continued to be

remain under requisition. The Requisitioning and

Acquisitioning of Immovable Property Act 1952 ( hereinafter

called `the Act') was thereafter promulgated and Section 23

thereof provided that all the old requisitions were now deemed

to have been made under Section 3 of the Act but by virtue of 3

an amendment made in 1970 Section 6 (1-A), the Central

Government was not authorized to retain any property under

requisition for a period beyond 17 years. The Deputy

Commissioner, Ranchi however, on a misconception of the law

transferred Katras House, undoubtedly a requisitioned

property, to the Civil Surgeon, Ranchi without the consent of

its owner and on vacation of the said property by the Civil

Surgeon, vide by Order dated 30th April 1958, transferred the

property to the Principal, Ranchi Women's College

(Respondent no.3 herein) under Section 11 (2) (b) of the Bihar

Building Lease Rent and Eviction Control Act 1947

(hereinafter called the `Rent Act' ) subject to a monthly

payment of rent directly to the owner. In July 1995, the then

owner of the property through his attorney, filed an Eviction

Title suit no.8 of 1995 under the provisions of the Rent Act for

eviction of Respondent no.3 alleging that the college was a

tenant in the demised premises. Respondent No. 3 as well as

the Deputy Commissioner, Ranchi appeared in the said Suit

as Defendants and filed their written statements. Respondent

no.3 took a categorical stand that Katras House had been

requisitioned for purposes of the Army during World War-II 4

and had been allotted to it by the Deputy Commissioner under

the Act, and an application for its vacation would lie before the

Deputy Commissioner, and as such the Court Civil had no

jurisdiction to entertain the Suit. This Suit was eventually

dismissed in default for non-prosecution in the year 1998.

The compensation payable under Section 8 (2) of the Act was,

however, regularly paid by Respondent no.3 to the owner.

Katras House was purchased by Shri L.N. Dey from its owner

by a registered sale deed dated 9th January 2001 and

pursuant thereto the necessary mutations were made in the

revenue record and it is the admitted position that the

rent/compensation is now being received by the new owner. It

is the case of the Appellant that a letter dated 23rd November

2002 was received from the Administrator, Ranchi Municipal

Corporation that on inspection it had been found that Katras

House was in a dangerous and uninhabitable state and a

direction was issued under Section 247 (1) of the Ranchi

Municipal Corporation Act 2001 that the building which had

been declared as dangerous, should either be demolished or

subjected to extensive repairs to make it habitable. The

Appellant thereupon served a copy of this notice on the 5

Deputy Commissioner on 8th July 2003 requesting him to de-

requisition the building so that it could be demolished or

repaired, as the case may be, failing which there was a

possibility that the girls residing in the building which was

being used as a hostel, may suffer some injury. The request

of the Appellant was accepted and an order was made by the

Deputy Commissioner on 8th July 2003, de-requisitioning the

property and directing its return to its owner. Vide order

dated 25th August 2003, however, the Deputy Commissioner,

in partial supersession of the order of 8th July 2003, referred

the matter to the Secretary, Human Resource Development,

Government of Jharkhand, Ranchi and the Vice Chancellor,

Ranchi University to take a final decision with respect to the

ownership and title of the said property. On receiving the

revised order, the Appellant approached the Secretary,

Department of Education on 14th October 2003 giving evidence

as to his ownership of the property. The Joint Secretary of the

Ministry, however, wrote a letter of 1st March 2004 to the

Secretary, Building & Construction Department to arrange for

an inspection of the property and to ascertain as to whether it

was unsafe and unfit for habitation. The inspection was held 6

over several days in May & June 2004 and a report was

tendered that as the building had been constructed before the

year 1919 and as the quality of the construction had

deteriorated, the building was no longer fit for habitation.

This report was forwarded to the Secretary, Human Resource

Development Department by the Chief Engineer, Building

Construction Department on 21st June 2004 but it appears

that no result followed on which the Appellant filed Writ

Petition (Civil) No.4955 of 2004 in the High Court seeking a

direction to the Respondents, specifically to Respondent No.3

to relinquish the possession of the property forthwith to the

owner so that the building could be demolished or repaired to

make it safe. Respondent No.3 filed its counter affidavit

admitting that Katras House had been originally requisitioned

for Army purposes during World War-II and had later been

allotted to the Civil Surgeon and on its vacation by the Civil

Surgeon, had been allotted to the respondent on 30 th April

1958 under Section 11(2)(b) of the Rent Act and that it had

been in use as a hostel for girls for more than 45 years. The

matter was heard by a learned Single Judge, who in his

Judgment dated 20th September 2005 observed that it was not 7

possible to determine the question of right, title and

possession over the land and building in writ proceedings

under Article 226 of the Constitution of India and that this

matter could not be decided by the Secretary, Human

Resource Development Department or the Vice Chancellor of

the Ranchi University and therefore, the Order dated 25th

August 2003 was bad to extent. It was, however, left to the

Competent Authority under the `Act' to determine whether the

building in question should be de-requisitioned or retained by

the Government.

3. Aggrieved by the aforesaid Judgment, the Appellant

preferred a Letters Patent Appeal before the Division Bench on

6th January 2006, but simultaneously pursued the liberty

granted by the Single Bench in the judgment dated

20th December 2005 and filed a representation before the

Deputy Commissioner, Ranchi (being the Competent Authority

under the Act) seeking an order of de-requisition of Katras

House. The Deputy Commissioner by his Order dated

4th April 2006 ordered that the property should be released

and handed over to the Appellant with effect from

4th April 2006. Faced with this situation Respondent No.3, the 8

Principal, Women's College, Ranchi filed Title Suit No.134 of

2006 in the Court of the Munsif, Ranchi challenging the Order

dated 4th April 2006 pleading that the aforesaid Order was

without jurisdiction and also seeking on interim injunction

during the pendency of the Suit. The Appellant filed its

written statement on 2nd August 2006 pleading inter alia that

the jurisdiction of the Civil Court was barred under Section 19

of the Act, and also an application under Order VII, Rule 11 of

the CPC that the question of jurisdiction be treated as a

preliminary issue. This prayer was rejected by the Munsif vide

Order dated 14th November 2006. The Appellant thereupon

preferred Writ Petition (Civil) No.7497 of 2006 pleading that

the proceeding before the Civil Court were barred by Sections

18 and 19 of the Act. The High Court disposed off the writ

petition with the direction that the Munsif should re-consider

the pleas raised in the application aforesaid without being

prejudiced by his earlier Order dated 14th November 2006.

This order of the High Court was challenged by way of a Letter

Patent Appeal. The Appellant also moved an application for

review of the Order dated 14th November 2006 which too was

rejected. These facts were brought to the notice of the Division 9

Bench of the High Court in the Letters Patent Appeal

proceedings vide an affidavit dated 7th September 2007. The

High Court, however, by its Judgment and Order dated

1st October 2007, dismissed the Letters Patent Appeal in spite

of the changed circumstances holding that the remedy of the

Appellant lay elsewhere and that it was for the Civil Court to

decide the question of jurisdiction raised in the application

under Order 7 Rule 11 of the CPC. It is in these

circumstances that the matter is before us by way of Special

Leave Petition.

4. Several arguments have been addressed before us by Mr.

K. Venugopal, the learned Senior Advocate for the appellant.

He has emphasized that it was the admitted position that

Katras House had been requisitioned under Rule 75 A of the

Defence of India Rules in the year 1942 and by operation of

law, the said requisition would now deemed to have been

made under the Act. He has pointed out that the Order of the

Division Bench observing that only the Civil Court could to go

into the matter was not in accordance with law as the

provisions of the Act were applicable and Section 19 thereof

specifically barred any proceedings before the Civil Court. He 10

has further pointed out that Respondent No.3 in its written

statement filed in 1995 in the eviction suit filed by the power

of attorney holder of the earlier owner had admitted that the

property had been requisitioned for the army and had pleaded

that proceedings before the Civil Court were barred. He has

pointed out that this volte face had been made in order to

frustrate the Order of the Deputy Commissioner dated 4th April

2006 which had been validly made under Section 6 (1A) of the

Act. He has further pointed out that the requisition of a

property could not continue indefinitely as the original

purpose of the requisition had ceased to exist and more

particularly as the requisition could not continue beyond the

year 1987 i.e. a period of 17 years from the year 1970 as

provided by Section 6 (1A) ibidem. For these two submissions

Mr. Venugopal has placed reliance on H.D. Vora vs. State of

Maharashtra and Ors. (1984) 2 SCC 337, and Grahak

Sanstha Manch and Ors. Vs. State of Maharashtra (1994) 4

SCC 192. Mr. Venugopal has further pointed out that the

Deputy Commissioner was not authorized to transfer Katras

House to Respondent No.3 vide Order dated 30th April 1958 11

purportedly under Section 11 (2) of the Act as the conditions

for the applicability of this provision did not exist. He has also

pleaded that as RespondentNo.3 in the Suit filed in the year

1995 had claimed that the Civil Court had no jurisdiction in

the matter, it was now estopped from the claiming to the

contrary and saying that the Civil Court had the jurisdiction in

proceedings which were now pending in the Civil Court.

5. Mr. Dholakia, the learned senior counsel appearing for

Respondent No.3 has, at the very outset, very fairly conceded,

that the question of title was not disputed but as the question

as to whether the relationship of landlord and tenant existed

inter se the parties was a matter which could be examined

only by the Civil Court and that this procedure that had been

adopted by the respondent by filing a civil suit challenging the

order dated 4th April, 2006 of de-requisition made by the

Deputy Commissioner.

6. We have heard the learned counsel for the parties and

gone through the record. Although, a feeble attempt has been

made by the learned counsel for the Respondent doubting the

factum of the requisition made in the year 1942 for the

purpose of the Army, it stands virtually admitted now that 12

such an order had indeed been made under Rule 75 A of the

Defence of India Rules. It is also the conceded position that by

virtue of various provisions made in subsequent laws, the said

order would now be deemed to be one made under Section 3 of

the Act. In this view of the matter, the question would arise as

to whether the Civil Court would have jurisdiction in the

matter or that the remedy of the parties elsewhere. It is

significant that in the civil suit filed in the year 1995 by the

previous owner of the property, a comprehensive written

statement had been filed by the Principal of Respondent No.3,

and the positive stand taken was that the building in question

had been requisitioned by the Deputy Commissioner-cum-

District Magistrate, Ranchi for military purposes under the

Defence of India Rules in the year 1942 and that the Deputy

Commissioner had allotted the said premises to the Ranchi

Women's College by order dated 4th April 1958 under Section

11 (2) of the Rent Act and as such the civil suit was barred

and the remedy for de-requisition lay only before the

Competent Authority, that is the Deputy Commissioner-cum-

District Magistrate, Ranchi. Concededly, this suit was

dismissed in default and was not pursued any further. It is 13

equally true that the appellant herein too has taken a

vacillating stand with regard to the jurisdiction of the Civil

Court or otherwise in other legal proceedings inter se the

parties. However, as per findings of all the Courts and as per

written statement filed, the fact that the property had indeed

been requisitioned in the year1942 under Rule 75 A of the

Defence of India Rules stands virtually admitted. In this view

of the matter the controversy would be covered by Sections 3,

6 & 19 of the Act.

7. Section 3 of this Act gives power to the Competent

Authority to requisition any immovable property for any public

purpose, being a purpose of the Union and Section 4 thereof

gives the power to the Competent Authority to take over the

possession of the requisitioned property. Section 6 deals with

release from requisition and insofar as is relevant, is

reproduced below:

6. Release from requisitioning.

(1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by 14

reasonable wear and tear and irresistible force:

Provided that where the purposes for which any requisitioned property was being used cease to exist, the Central Government shall, unless the property is acquired under section 7, release that property, as soon as may be, from requisition.

"(1-A) Notwithstanding anything contained in sub-section (1), the Central Government shall release from requisition, -

(a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of Requisitioning and Acquisition of Immovable Property (Amendment) Act, 1970, on or before the expiry of a period of [seventeen years] from such commencement;

(b) any property requisitioned under this Act after such commencement, on or before the expiry of a period of [seventeen years] from the date on which possession of such property was surrendered or delivered to, or taken by, the competent authority under section 4,unless such property is acquired under section 7 15

within the period of" [seventeen years] aforesaid.]

(2) Where any property is to be released from requisition, [under sub-section (1) or under sub-section (1-A)] the competent authority may, after such inquiry, if any, as it may in any case consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the property shall be given and such possession shall, as far as practicable, be given to the person from whom possession was taken at the time of the requisition or to the successors-in-

interest of such person.

[3] The delivery of possession of the property to the person specified in an order under sub-section (2) shall be full discharge of the Central Government from all liability in respect of the property, but shall not prejudice any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is given.

8. A bare perusal of Section 6 (1-A) and 6(2) would show

that the property cannot be requisitioned permanently and

that the maximum period fixed by the Amendment Act of 1970

is 17 years from that date and that Section 6 (2) further

provides that unless the requisitioned property is acquired

under Section 7 within the period of 17 years aforesaid, it 16

shall be released to its owner and as far as practicable, be

given to the person from whom the possession had been taken

at the time of the requisition or to the successor in interest of

such person. Concededly, the appellant herein is the

successor in interest of the owner from whom the property had

been requisitioned in the year 1942. It is, therefore, obvious

that the requisition could not have been continued beyond the

year 1987 unless the property had been acquired, which is

concededly not the case before us.

9. Mr. Dholakia has, however, emphasized that the status

inter se the parties was that of landlord and tenant, the

appellant being the landlord, and as the appellant had been

accepting rent and had also sought and received an

enhancement thereof on several occasions , the suit could not

be dismissed on the ground that the civil court's jurisdiction

was barred. We are of the opinion, however, that the payment

of rent in such matters would not change the legal position

with regard to the rights and obligations of the requisitioning

authority and the person from whom the property had been

requisitioned. It is impossible to accept the plea that if the

appellant whose property has been requisitioned in 17

desperation seeks an enhancement of the rent, that would

ipso-facto create a tenancy so as to preclude the obligations

imposed on the Central Government under the Act. While

repelling a similar submission in H.D. Vora's case this is what

this Court had to say:

"There was also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as his possession of the flat is concerned. This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order or requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State 18

Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukkanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of his occupation of the flat or make him a tenant of Rukmanibai in respect of the flat".

Some of the observations in H.D. Vora's case were modified on

some other matters in Grahak Sanstha Manch case (Supra)

but the observation in paragraph 7 afore-quoted were duly

affirmed.

10. To our mind there exists yet another circumstance which

militates against the case of Respondent No. 3 with regard to

the creation of a tenancy vis-`-vis the appellant. Admittedly,

Respondent No.3 had been inducted into Katras House under

the order of the Deputy Commissioner dated 30th April 1958, 19

under Section 11 (2) of the Rent Act. This provision reads as

under:

"(2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building, he shall give fifteen day's previous notice in writing of his intention to do so to the landlord, and to the District Magistrate who shall under intimation to the landlord, within a week of the receipt of the notice either allot building to any other servant of the Government whom the District Magistrate thinks suitable, subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government, or direct that the landlord shall be put in possession of the building:

Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.

(a] xxx xxx xxx xxx

(b) Where a building is vacated by a servant of the Government, any person occupying such building other than the persons referred to in clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed:

20 Provided that, after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person".

11. It would be clear from a bare perusal of Section 11(2)

(a) that it postulates several conditions for the transfer of a

building already in possession of a Servant of the Government

to any other servant of the Government, but it does not

authorize the transfer of such a building to any other person.

It has been conceded before us that respondent No.3, the

Ranchi Women's College, is not run or controlled by the

Government but is a private college under private

management. To our mind, therefore, the very order of

allotment made on 30th April, 1958 was completely

unauthorized. Concededly also Katras House was under

requisition with the Union of India for purpose of the Union

and there is no provision under the Act for transfer of such a

property to any other person. Even assuming for a moment,

the Act did authorize such a transfer, the condition of transfer

visualized under section 11(2)(a) did not exist and the transfer

was thus, bad at the very outset.

21 12. In this background, the question now arises is as to

whether the jurisdiction of the Civil Court was barred and

whether the appellant should undergo a trial on facts which

are admitted. Section 19 of the Act is reproduced hereunder:

"Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the competent authority or arbitrator is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act".

13. A bare perusal of this provision would show that it is

only the Competent Authority (read Deputy Commissioner)

who would have jurisdiction in respect of any matter under

the Act, and the jurisdiction of the Civil Court was explicitly

barred. We also find that in the suit filed in the year 1995,

Respondent No.3 had taken a specific plea that it was only the

Competent Authority under the Act who could make an order

of de-requisition sought by the owner and the jurisdiction of

the Civil Court was barred. Mr. Dholakia has, however, (and

rightly), pointed out that Appellant too had been taken a 22

vacillating stand in a different set of proceedings. We find that

both appellant and the respondent have been equally

ambivalent with respect to their relationship and rights inter-

se with the sole purpose of defeating the other party's rights by

whatever means possible. To our mind, this ambivalence

would not be determinative of the legal issues that have been

raised on the basis of admitted facts. It is the admitted fact

that the property had been requisitioned in the year 1942 for

Army purposes under Rule 75 A of the Defence of India Rules

which would be deemed to be a requisition under Section 3 of

the Act. The maximum period for requisition in such cases is

17 years and ought to have ended in the year 1987, but has in

fact continued for almost 22 years thereafter. The creation of

the so called tenancy in favour of a respondent of a

requisitioned property is not visualized under the Act and even

otherwise the conditions for the creation of such a tenancy by

virtue of Section 11 (2) of the Rent Act do not exist. The

Competent Authority under the Act was, therefore, under an

obligation imposed under Section 6(2) to return it to its owner.

To our mind, therefore, the observations of the Munsif and

High Court, that the appellant must have his remedies in the 23

Civil Court is adding insult to injury in a situation where

almost none of the material facts are in dispute.

14. Mr. Venugopal has also raised a plea of estoppel based

on the conflicting stand on the question of jurisdiction taken

by respondent no.3 from time to time. In view of the fact that

the appellant has been equally guilty of a similar stand and

our findings on the other issues, we are disinclined to go into

this aspect.

15. We accordingly allow the appeal, set aside the Order of

the Division Bench and direct that Katras House and the

entire requisitioned property shall be released in favour of the

appellant by the end of this year. The respondent is directed

to pay all the arrears of rent due as of now and the rent upto

December and also files an undertaking to vacate the premises

as ordered within a period of two months from today. Should

such an undertaking not be filed, we issue a direction to the

Competent Authority, that is the Deputy Commissioner,

Ranchi to take steps to evict the respondent and hand over the

property to the appellant forthwith. The appellant will also

have its costs from Respondent No.3 which we determine at

Rs. One lakh.

24

...................................J. (DALVEER BHANDARI)

..................................J. (HARJIT SINGH BEDI) New Delhi, Dated: May 1, 2009