Smt. Kishanibai vs A.P.K. Jogi and Others

S.K. Jha, C.J.

In this application under Articles 226/227 of the Constitution of India, the petitioner challenges the legality and validity of the order dated 24-11-1983 passed by the Collector and Requisitioning Authority of Indore respondent No. 1. A copy of the aforesaid order purported to have been passed u/s 3-A of the M.P. Accommodation (Requisition) Act, 1948 (No. LXIII of 1948) has been marked as Annexure-J to the writ petition. By the impugned order, the respondent No. 1 exercising the delegated authority of the State Government has directed the petitioner to give possession of the premises in question within 30 days of the order to the competent authority.

2-3. The accommodation in question consists of five rooms of a one storeyed building bearing House No. 29 Gopal Bag, Indore. Admittedly, the petitioner is the owner of the building (the accommodation) in question. The public purpose within the meaning of Section 2(d) of the Act is said to be the general scarcity in the matter of allotment of houses to such Government servants who come to Indore on transfer for providing them with accommodation facility. It seems that on 2-9-1985 a notice purporting to be passed u/s 3-A of the Act was issued to the petitioner. The entire procedure seems to have been misconceived by respondent No. 1 while purporting to issue the notice dated 2-9-1983 u/s 3-A of the Act, a copy whereof has been marked as Annexure-F to the writ petition. It has also been stated that the aforesaid building or accommodation shall be allotted to the Government servants or officers under the M.P. Accommodation Control Act, 61 u/s 39(2) thereof. While on the one hand the notice Annexure-F purports to have been passed u/s 3A of the Requisition Act, on the other it is meant to be allocated to officers as on when they require the accommodation u/s 39(2) of the Accommodation Control Act, 61. That is, to say the least, putting the cart before the horse. Even before the subjective opinion of the competent authority under the Act is yet to be formed with regard to the specific public purpose within the meaning of Section 2(d) of the Act, the Requisition Authority is already obsessed with the idea of allotment being made u/s 39(2) of the Accommodation Control Act. The Requisition authority has to give a reasonable opportunity to the petitioner before an order u/s 3 of the Act is passed. After the notice purporting to have been passed u/s 3-A of the Act dated 2-9-1983 Annexure-F was served, a reply thereto was filed by the petitioner on 12-9-83 a copy thereof has been marked as Annexure-G to the writ petition. The petitioner submitted therein that she and her family members are in possession of only this accommodation, which is not quite fit for the purpose of requisition. Having received this reply the petitioner''s case is that no opportunity at any time was given to her to be heard, much less any reasonable opportunity. The petitioner ought to have been heard in the matter to make the representation effective before the Requisitioning Authority before the impugned order Annexure-J to the writ petition was passed on 24-11-1983.

A return has been filed on behalf of the respondent. On a meticulous examination of the averments made in the petition, those found in the reply and the materials produced before us by the learned counsel for the parties, we do not find that there were materials even for the formation of the subjective satisfaction of the competent authority for coming to a conclusion of there being a public purpose within the meaning of Section 2(d) of the Act. The question of any allotment u/s 39 of the Accommodation Control Act, 1961 could arise only after a valid order u/s 3 with regard to the formation of an opinion regarding''s public purpose'' by the competent authority is passed followed by a valid order u/s 3-A of the Act. We are not satisfied that petitioner was given any effective opportunity of either filing a show cause or being reasonably heard nor we are satisfied on the basis of the record produced before us that ''a public purpose'' has been established on evidence aliunde as is required in terms of the Full Bench decision of this Court in Jagdish Narain Babulal Jaiswal Vs. Collector and Others, The Competent Authority under the Act should always keep in mind the principle to be applied in such cases, which has been called from the Full Bench decision of this Court in Jagdish''s case (supra) and repeated in quite a number of decisions subsequent thereto.

The expression, namely, allotment of house/ accommodation to Government servants'' is too laconic and incomplete a statement to justify ''a public purpose''. The non-mention or incomplete mention consequent upon which the State Government could justify the requisition in question, would render the order invalid. In the case of Jagdish Jaiswal (supra) it was held by this Court that the simple ipse dixit of the respondent-State that the collection and the storage of foodgrains is undertaken by the State Government under its scheme of fair distribution of foodgrains to deficit areas on the non-profit basis cannot make it ''a public purpose'' unless it is established that to requisition of every kind of accommodation as defined in the Act, occupied or unoccupied, occupied as a human dwelling, for a business or for storing of goods was either necesary or justified in order to successfully implement the scheme reasonable, will not make it sufficient for the purpose of its being declared to be necessary for requisition for a public purpose under the Act The formation of such a subjective opinion of the Requisitioning Authority must be justified on the ground of a public purpose, which has to be ascertained by the Courts on all the relevant date given by the authorities. Mere statement that for the purpose of allocation or allotment of premises to Government servants or officers u/s 39 of the M P Accommodation Control Act, 1961 will not make it a public purpose as envisaged by Section 2(d) at the Requisition Act.

Horn the dates given earlier, it will have to be seen that the first notice, which was given to the petitioner was dated 2nd September, 1983. The accommodation in question still remained in possession of the petitions by virtue of an interim order passed by this Court. Much water having flown down the river since 2nd September, 1983, we are not quite sure as to whether the existence of any such public purpose within the contemplation of the Requisitioning Authority still continues.

On the facts and in the circumstances we leave it to the State Government or the competent authority to choose its future course of action. If on the facts any further proceeding is warranted in future and orders under the Requisition Act are warranted, the Authorities will be at liberty to act in accordance with law, as this order cannot be held to be a shield for all times to come. As a result, this application succeeds and the impugned order as contained in Annexure J dated 24-4-1983 is quashed. Secuurity deposit, if any, be refunded after verification. There shall be no orders as to costs.