judgement:
il Appeal No. 1049 of 1968.
167 Appeal by special leave from the order, dated August 11, 1967 of the Delhi High Court in L.P.A. No. 85 of 1967.
Niren De, Solicitor General, B.P. Maheshwari and R.K. Maheshwari, for the appellant.
M.C. Chagla and Urmila Kapoor, for the respondents.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by the Municipal Corporation of Delhi, by special leave, is directed against the judgment and order, dated August 11, 1967 passed by the High Court of Delhi High Court, dated May 10, 1967 whereby a writ of manda Patent Bench had confirmed an order of the learned Chief Justice, Delhi High Court, dated May 10, 1967 whereby a writ of Mandamus had been issued to the appellant to approve the plans submitted by the respondents and grant the sanction asked for.
The circumstances leading up to the issue of the writ of mandamus against the appellant may be briefly adverted to.
The respondents are the owners and are.
in possession of the building bearing municipal door Nos. 3766 to 3776, situated in the main Chawri Bazar, Delhi.
As the building was an old construction and required urgent and extensive repairs, on October 16, 1965 the respondents submitted to the appellant plans for its sanction for execution of work consisting of repairs, additions as well as alterations to the said building.
The Commissioner of the appellant Corporation, by letter, dated February 4, 1966 informed the respondents that their application for execution of construction work in respect of house Nos.
3766 to 3776 had been refused on the grounds "that the proposal was under acquisition and also effected in the ROW and the land was residential against proposal of commercial".
A controversy appears to have been raised by the appellant before the High Court that the application, by the respondents, related also.
to certain other municipal door numbers, but as that is not material for the present purpose, we do not refer to the same.
Attempts made by the respondents to satisfy the Commissioner that their application was quite legal and that there was no violation of any law or rules having failed, they filed Civil Writ Petition No. 410 D of 1966 in the Circuit Bench of the Punjab High Court at Delhi, under article 226 of the Constitution praying for the issue of an order or direction in the nature of mandamus directing the appellant to accord sanction to the plan for execution of work in respect of the building.
as per their application of October 16, 1965.
According to the respondents it was.
incumbent on the Commissioner of the appellant, under section 336 of the Delhi Municipal Corporation Act, 1957 (Act LXVI of 1957) (hereinafter referred to as the Corporation Act), to sanction the plans of a building or 168 execution of a work unless such a building or work contravened any of the provisions, of sub section
(2) of section 336 or section 340 of the Corporation Act.
It was further stated that the plan submitted by them did not contravene any of the provisions of sub section
(2) of section 336 or section 340 of the Corporation Act.
The reasons given for rejection, by the Commissioner, were also challenged as being vague and unintelligible apart from being extraneous to the provisions of the Act.
The respondents further averred that the build Lags required extensive repairs.
as was clear from the notice, dated March 3, 1966, issued by the Commissioner of the appellant stating that the building posed a danger to the residents of the area and that the necessary repairs had to be carried out immediately, after obtaining sanction from the building department, and threatening penal consequences if the respondents did not comply with the notice.
On these grounds.
they urged that the order, dated February 4, 1966 passed by the Commissioner refusing to accord sanction was illegal and ultra vires and in consequence they prayed for the issue of a writ of mandamus directing the appellant to accord sanction, as asked for by them.
On behalf of the appellant, the Assistant Engineer had filed a counter affidavit.
The material averments, relevant for the present purpose, are that the respondents are the owners of the premises and that the construction was old and required repairs; but the plans submitted by the respondents did not conform to bye laws and contravened section 336(2) (a) in respect of land use and section 340(2) with respect to requisitioning of land by the Delhi Development Authority for their Scheme and that the plans were also affected by road widening.
In their reply affidavit the respondents controverted the averments of the Assistant Engineer that the plans did not conform to bye laws or the provisions of section 336(2) or any other law in respect of land use.
They stated that according to.
the Master Plan prepared under the Delhi Development Act, 1957 certain areas, including Chawri Bazar, would be the Central Business District of Delhi and that the proposed user, mentioned by them in the plan sent for sanction was not in contravention of the Master Plan.
They also denied that the Delhi Development Authority had any scheme for road widening.
They further referred to a letter, dated April 30, 1966 of the Delhi Development Authority stating that the Zonal Development Plan has not been prepared for the area in question.
They finally reiterated the plea that the order refusing sanction was not based on any of the grounds envisaged by section 336(2) or section 340 or any other provision of the Corporation Act or of any other Act.
The learned Chief Justice of the Delhi High Court, who heard the writ petition in the first instance, by his judgment and order 169 dated May 10, 1967 accepted the writ petition filed by the respondents and issued a mandamus to the appellant to approve the plans and grant the sanction asked for '.
The learned Chief Justice has expressed the view that the Commissioner could decline the sanction only if there was a contravention of sub section
(2) of section 336 or section 340 of the Corporation Act.
In this case, according to the learned Chief Justice, there was no such contravention established by the appellant and if that were so the Commissioner had no power to refuse to accord the sanction asked for by the respondents.
He was of the further view that the grounds on which the Commissioner refused sanction were wholly irrelevant and not germane to the sanction asked for.
Taking the further view that the Commissioner had a statutory duty to grant the sanction asked for, the learned Chief Justice directed the issue of a writ of mandamus.
This judgment of the learned Chief Justice as mentioned earlier, was affirmed by the judgment of the Letters Patent Bench of the Delhi High Court, dated August 11, 1967.
The learned Solicitor General, on behalf of the Corporation, has urged that the order of the Commissioner refusing sanction is legal and is justified by the provisions, of cl.
(a) of sub section
(2) of section 336 of the Corporation Act.
Even at the outset he has made it clear that he is relying upon only one of the grounds given in the order, dated February 4, 1966 of the Commissioner, viz., that the plan submitted was affected by the proposals contained in the Master Plan in respect of widening of the read in the area in question.
The expression 'ROW ' used in the order refers to 'right of way ' which is with reference to the road proposed under the Master Plan.
The Master Plan has been prepared under section 7 of the Delhi Development Act, 1957 (Act LXI of 1957 ) (hereinafter referred to as the Development Act) and it has come into operation, under section 11, in the area concerned.
The building operation proposed by the respondents as per the plans submitted by the:m will be contrary to.
the Master Plan and, as such, will be hit by section 14 of the Development Act.
In short, the contention of the ]earned Solicitor General is that the Master Plan prepared by the Authority for Delhi, which has statutory force, has come into effect under the Development Act.
Under section 336(2)(a) of the Corporation Act, the Commissioner is entitled to refuse sanction of a building or work if the building or work or use of the site for building or work would contravene 'any other law '.
As the proposed construction would not be in conformity with the Master Plan, section 14 of the Development Act will be violated, in which case there will be a contravention of 'any other law '.
Hence the order of rejection passed by the Commissioner is legal and valid.
In this connection the learned Solicitor General referred us to the Master Plan wherein it is stated that the proposed road (in Chawri Bazar, which is the area with which we are concerned) CI 69 12 170 from Hauz Kazi to Jama Masjid is recommended to have a width of 60 feet.
The width of the existing road is only 48 feet.
The object of the Development Act is to freeze new building constructions which will be inconsistent with the Master Plan; and, if the Master Plan mentions the width of a proposed road and the width of an existing road is less, no new construction will be permissible on either side of the road till the excess area required for the road is found.
The Solicitor General has further urged that though a Zonal Development Plan for each of the Zones in which Delhi will have to be divided will have also to be prepared and has not come into operation for the zone concerned, nevertheless, till such a Zonal Development Plan comes into operation, the Master Plan will hold the field.
If a Zonal Development Plan comes into force and has made any alteration, the Zonal Development Plan will then have effect and the Master Plan will stand abridged or modified.
At present, it is the Master Plan that holds the field and, as according to it an excess area of 12 feet for the proposed road will have to be found, all building operations on either side of the proposed road will have to come to a standstill.
That is, the learned Solicitor General was prepared to take the stand that, so to say, there is a freezing of all building operations, on either side of the existing road which, according to him, is warranted by section 14 of the Development Act.
In support of his contentions, the learned Solicitor General drew our attention to certain provisions contained in the Corporation Act and the Development Act.
The stand taken by the learned Solicitor General has been very strenuously controverted by Mr. M.C. Chagla, learned counsel for the respondents.
Mr. Chagla, apart from criticising the order, dated August 11, 1967 as laconic and unintelligible and not containing any valid reasons has urged that the Master Plan, so strongly relied on by the learned Solicitor General, does not, as such, refer to the survey numbers in respect of which the respondents had asked for sanction.
Before the High Court the appellant has not relied upon the Master Plan nor did it place any material to show that any part of the proposed road shown in the Master Plan will pass through any of the properties of the respondents.
The Master Plan prepared under the Development Act is nothing but a broad outline of what Delhi would look like, in future.
The plan, which may probably give more accurately the lands in the area which are reserved for roads, is the Zonal Development Plan, the preparation of which is mandatory under section 8 of the Development Act.
Admittedly no such plan has been prepared, much less has come into operation in the concerned zone.
So long as the Master Plan does not state that any part of the property belonging to the respondents will be covered by the proposed road, it cannot be stated that when the respondents are attempting to renovate the building they are using the land in the zone otherwise than in conformity with the Master Plan.
Mr. Chagla further points out 171 that if the contentions advanced on behalf of the appellant are accepted, the entire building operations in Delhi will have to come to a standstill for an indefinite number of years and, according to him, that position is not envisaged either by the Master Plan or the provisions of the Development Act.
He finally urged that section 14 of the Development Act has no application at all.
From the contentions of both the parties set out above, it will be noticed that according to the appellant ii building operations are allowed to be carried on, there will be a violation of the Master Plan, and in consequence of the provisions of section 14 of the Development Act; whereas, according to the respondent, there is no violation of either the Master Plan or any provisions of the Development Act or of any other law.
A reference to the material provisions of the Corporation Act and the Development Act, which will be made by us presently, will clearly establish that the contentions of the learned Solicitor General cannot be accepted.
We shall first take up the provisions of the Corporation Act.
Section 332 prohibits the erection or commencement of the erection of any building, or execution of any of the works specified in section 334, except with the previous sanction of the Commissioner.
Section 333 makes its mandatory on a person intending to erect a building to apply to the Commissioner in that behalf.
Section 334 makes it obligatory on a person, who intends to execute any of the works mentioned therein, to apply for sanction to the Commissioner.
Section 336 deals with sanction or refusal of building or work.
It is only necessary to refer to sub section
(1) and cl.
(a) of sub section
(2) of this section, because, as we have already stated, the order of rejection by the Commissioner is sought to be justified under this provision.
These provisions are:, "336.
( 1 ) The Commisioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub section (2) of this section or the provisions of section 340.
(2) The grounds on which the sanction of a building or work may be refused shall be the following, namely : (a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any byelaw made in this behalf or of any other law or rule, byelaw or order made under such other law; 172 Sub section
(3) of section 336 provides for the Commissioner communicating the sanction to the person who has given the notice; and in cases where he refuses sanction on any of the grounds specified in subs.
(2) of section 336 or under section 340, to record a brief statement of his reasons for such refusal and communication of the refusal along with the reasons to the party concerned.
It will be clear, from a perusal of section 336, that the Commissioner has to give sanction for the erection of a building or the execution of a work, unless such building or work would contravene any of the provisions of sub section
(2) of section 336 or the provisions of section 340.
Therefore, in order to sustain the validity of the order of rejection passed by the Commissioner the appellant has to establish, as it seeks to, that the proposed building or the use of the site for the building, by the respondents, would contravene the provisions of 'any other law '.
If the proposed building or use of the site for the building would contravene the provisions of any other law ', the Commissioner has ample powers under cl.
(a) of section 336(2) to refuse sanction.
Section 340 gives power to the Commissioner to refuse sanction for erection of any building on either side of a new street, under the circumstances mentioned therein.
We shall now refer to some of the provisions of the Development Act in order to appreciate the scheme of that statute.
The Development Act is an Act to provide for the development of Delhi according to plan and for matters ancillary thereto.
Section 2, clauses (d) and (e), define the expressions 'development ' and 'development area ' respectively.
Chapter II deals with the Delhi Development Authority and its objects.
Section 3, therein, provides for the Central Government constituting for the purposes of the Act an authority to be called the Delhi Development Authority.
It is referred to in the Act as the Authority.
Section 5 provides for the Authority constituting an Advisory Council for the purpose of advising the Authority on the preparation of the Master Plan and the Zonal Development Plans and on such other matters in connection with the administration of the Act.
Such Advisory Council also has been duly constituted.
Section 6 provides that the object of the Authority shall be to promote and secure the development of Delhi according to plan and clothes the Authority with the various powers mentioned therein.
Chapter III deals with Master Plan and Zonal Development Plans.
Section 7, therein, provides for the Authority carrying out a civic survey of and preparing a Master Plan for Delhi.
Under sub section
(2), the Master Plan shall (a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed 173 to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame work within which the zonal development plans of the various zones may be prepared '.
Section 8 provides for the preparation by the Authority of a zonal development plan for each of the zones into which Delhi may be divided and also refers to the various matters which are to be indicated in the same.
The material provisions of section 8 which, according to us, will have a vital bearing in considering the soundness of the stand taken by the appellant are as follows: "8.
(1 ) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided.
(2) A Zonal Development Plan may (a) contain a site plan and use plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other .public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses; (d) in particular, contain provisions regarding all or any of the following matters, namely : (ii) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; Section 9 (1 ) states that the expression 'plan ' in that section and in sections 10, 11, 12 and 14 means the Master Plan as well as the Zonal Development Plan for a zone.
Sub section
(2) provides for the plan which means the Master Plan as well as the Zonal Development Plan being submitted after preparation by the Authority to the Central Government for approval and it also gives power to the Government to approve the plan, without modification or with such modifications as it may consider necessary, or reject the plan with directions to the Authority to prepare a fresh plan.
174 Section 10 provides for the procedure to be followed in the preparation and approval of plans.
A perusal of that section shows that ample opportunity has to be provided for persons and every local authority to submit objections at the stage of the draft, and it also requires the authority to consider any objections, suggestions and representations that may have been made, before the final plan is prepared and submitted to the Central Government for its approval.
It also empowers the Central Government to call for any information that it thinks necessary from the Authority for the purpose of approving any plan submitted to it.
Section 11 provides for the date of operation of the plan.
There is no controversy, in this case, that the Master Plan has been prepared under section 7 by the Authority on September 1, 1962 and it has also come into force, as contemplated by section 11.
Though section 8 contemplates the preparation of a Zonal Development Plan simultaneously with the preparation of the Master Plan, or as soon as may be thereafter, no Zonal Development Plan for the zone concerned has been prepared up to now.
It may also be pointed out that if and when such a Plan is prepared, containing the various matters referred to in sub section
(2) of section 8, before it is finalized and sent to the Central Government for approval, parties and local authorities will have to be given an opportunity of sending their objections and suggestions and representations, which have all to be duly and properly considered by the Authority concerned.
Chapter III A deals with modifications to the Master Plan and the Zonal Development Plan.
Section 1 I A, therein, provides for the Authority and the Central Government making modifications in the Master Plan or the Zonal Development Plan under the circumstances and after following the procedure, mentioned therein.
Chapter IV deals with development of lands.
Sub section
(1 ) of section 12 gives power to the Central Government, by notification in the Official Gazette, to declare any area in Delhi to be a development area for the purposes of the Act.
Sub section
(2) prohibits the Authority, except as otherwise provided for in the Act, to undertake or carry out any development of land in any area which is not a development area.
Sub section
(3) provides that after the commencement of the Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) except in the manner provided therein.
Section 14, on which considerable reliance has been placed, on behalf of the appellant, is as follows: "14.
After the coming into operation of any of the plans in a zone no person shall use or permit to be 175 used any land or building in that zone otherwise than in conformity with such plan: Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.
" A copy of the Master Plan for Delhi has been placed before us by the learned Solicitor General.
Chapter I deals with the Land Use Plan under various sub heads.
Chapter II deals with Zoning and Sub division Regulations.
There are certain maps annexed to this Plan.
Under the heading 'Proposed rights of way in Old City ', in paragraph 11 of Chapter I, item 7 refers to the area concerned, viz., Chawri Bazar.
Against that it is stated that the road from Hauz Kazi to Jama Masjid, which is approximately 1,800 feet long is recommended to have a road width of 60 feet.
There is no controversy that the existing .road is only 48 feet wide.
Our attention has also been invited to two of the maps annexed to this Master Plan, viz. the Zonal Map and the Proposed Circulation Pattern of Walled City and it was stated that the area marked 'A ' in the Zonal Map refers to the Walled City which is divided into 27 zones.
The second map viz. the Proposed Circulation Pattern of Walled City, is an enlargement of the area 'A ' shown in the Zonal Map and the Chawri Bazar is shown there.
As stated earlier, considerable reliance has been placed by the learned Solicitor General on the statement in the Master Plan that the road in Chawri Bazar is to have a width of 60 feet and on the two maps annexed to the Master Plan which, according to him, will show the lay out of the proposed road.
The Master Plan and the two maps relied on by the appellant do not give any indication that any part of the land belonging to the respondents will be covered by any portion of the proposed road.
The provisions of section 7 of the Development Act clearly indicate and that is borne out by the various matters mentioned in the Master Plan that the Master Plan will only give a very broad outline of DeLhi as it will look in future.
Though there is an obligation on the Authority to prepare the Zonal Development Plan simultaneously with the preparation of the Master Plan, or as soon as there may be thereafter, no such Zonal Development Plan has been prepared.
That assumes considerable importance in this case because it is the Zonal Development Plan, under section 8(2)(a) which will show the approximate locations and extents of land uses proposed in a zone for roads; further, under sub cl.
(ii) of cl.
(d) of sub section
(2) of section 8, the said Zonal Development Plan will also contain provision regarding the allotment or reservation of land for roads.
It is only when such allotment or reservation of land for roads is made that it will be possible to know clearly as to which part of 176 a person 's land and what portion thereof is allotted or reserved for a road.
If such an indication is made available by the Zonal Development Plan, then section 14 will quite naturally stand attracted, because any user of a land or building otherwise than in conformity with the Zonal Development Plan will be hit by that section.
In the absence of any indication in the Master Plan, in this case, that any part of the land of the respondents will be covered by a road, or portion of a road it is not possible to accept the contention of the learned Solicitor General that there will be any violation of section 14 of the Development Act if the respondents be permitted to use the land, as.
asked for by them.
To attract section 14, the appellant will have to establish that any land or part of a land or a building in a Zone has been dealt with in a particular manner by the Master Plan and that it is proposed to be used in a different manner.
If a Zonal Development Plan is prepared for the area, before it comes into operation in the Zone, the procedure indicated in section 10 will have to be followed and parties will have to be given an opportunity of placing any objections or making any representations or offering any suggestions.
So far as we can see, it is certainly not the scheme of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period.
The reasonable interpretation to be placed on section 14 will be that if any particular and definite use of land is indicated in a Master Plan, a different use of that land cannot be permitted.
Similarly, if a Zonal Development Plan provides for a particular use of any land or any building in that zone, it cannot be put to a different use.
If neither of the plans provide for the particular use of any land or building in the area or Zone, section 14 will have No. application whatsoever.
We have already stated that the respondents ' lands are not in any manner indicated as being taken up by any part of the proposed road, mentioned in the Master Plan and, if that is so, there is no violation of section 14 of the Development Act.
It .also follows that there is no violation of 'any law ' under cl.
(a) of sub section
(2) of section 316 of the Corporation Act.
The High Court was perfectly justified, in the circumstances, in issuing the writ of mandamus.
The result is that the appeal fails, and is dismissed.
The appellant will pay the costs of the respondents.
Appeal dismissed.

summary/full:
The Commissioner of the appellant (Municipal Corporation of Delhi) issued notice to the respondents stating that the building owned by them posed a danger to the residents of the area and that necessary repairs may be carried out immediately after obtaining sanction.
The respondents thereupon submitted plans to the Corporation but the Commissioner of the Corporation refused the sanction on the ground that the land belonging to me respondents would be covered by a road proposed in the Master Plan prepared .by.
the Delhi Development Authority.
The respondents filed a writ petition in the High Court praying for a direction to the Corporation to accord the sanction.
The High Court allowed the petition, holding that the Commissioner could decline the sanction only if there was a contravention of section 336(2) or section 340 of Delhi Municipal Corporation Act, 1957 and that in this case there was no such contravention.
In appeal to this Court, the appellant contended that the Commissioner was, trader section 336(2) (a), entitled to refuse sanction of a building or work if the building or work or use of the site for building or work contravened any other law ', that the Master Plan prepared had come into effect under the Development Act and that as the proposed construction would not be in conformity with the Master Plan it would contravene section 14 of the Development Act.
HELD: The appeal must fail.
The provisions of section 7 of the Development Act indicate that the Master Plan will only give a very broad outline of the Development Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period.
Under section 14, if any particular and definite use of land is indicated in a Master Plan, different use of that land cannot be permitted.
Similarly, if a Zonal Development Plan, the preparation of which is mandatory under section 8, provides for a particular use of any land or any building in that Zone, it cannot be put to a different use; if neither of the plans provide for the particular use of any land or building in the area or Zone, section 14 will have no application whatsoever.
The respondents ' lands were not in any manner indicated as being taken up by any part of the proposed road mentioned in the Master Plan, nor was a Zonal Development Plan prepared, in the present case.
Therefore, there was no violation of section 14 of the Development Act and hence there was no violation of 'any other law ' under section 336(2)(a) of the Corporation Act.
[175 F 176G]


judgement:
Appeal No. 681 of 1966.
sup CI/69 14 202 Appeal by special leave from the judgment and order dated April 22, 1965 of the Punjab High Court in Civil Writ No. 719 of 1964.
B.P. Maheshwari and Sobhag Mal Jain, for the appellant.
W.S. Barlingay, Brij Mohan Lal and Ganpat Rai, for respondents Nos. 1 and 3.
Hardev Singh, R.N. Sachthey, and B.D. Sharma, for respondents Nos. 2, 4 and 5.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from the judgment of the Punjab High Court in which the sole question involved is whether the Additional District Magistrate, Gurdaspur who had been invested with all the powers of the District Magistrate under section 10(2) of the Code of Criminal Procedure could make an order under section 29(1) of the Defence of India Act, 1962, hereinafter called the "Act", requisitioning a shop belonging to Batala Engineering Co. Ltd. which was in occupation of the appellant as.
a tenant.
The facts may be shortly stated.
The appellant claims to have been carrying on the business of a Commission Agent in machines in the said shop at Batala for the last 10 years as a tenant on a monthly rental of Rs. 20.
According to the allegations made by the appellant herein in the petition which he filed in the High Court under articles 226 and 227 of the Constitution, Batala Engineering Co. Ltd. (respondent No. 1 herein) had filed an application for his ejectment in January 1964 before the Rent Controller, Batala but realising the weakness of its case the said respondent resorted to the device of getting the shop requisitioned at the instance of the Labour Commissioner who wrote to the Additional District Magistrate that the shop was required for setting up a Cooperative Consumer Store.
On March 24, 1964, the Additional District Magistrate (respondent No. 2 herein) issued a requisitioning order purporting to be under section 29 of the Act requisitioning the shop in question and directing the tenant to surrender and deliver possession thereof to the Manager, Cooperative Consumer Store, Batala, within two days of the service of the order.
The requisitioning order was challenged by means of a writ petition on two grounds; the first was that it had been made mala fide and the second was that the notification which had been issued under section 40 (1 ) of the Act by the Central Government empowering among others the District Magistrate to exercise powers which were exercisable by the Central Government under section 29 in addition to other sections (which it is unnecessary to mention) was illegal and invalid.
The petition was resisted by respondents 1 and 2 and the assertions and contentions of the appellant were controverted.
203 The Division Bench of the High Court (the writ petition had been referred by a learned Single Judge to a Division Bench) held that the allegation of mala fides had not been proved.
It further held that the Additional District Magistrate was competent to make the requisitioning order since he had been empowered to exercise the powers of a District Magistrate under section 10(2) of the Cr. P. Code.
The writ petition was consequently dismissed.
It is necessary first to notice certain provisions of the Act.
Section 29 empowers the Central Government or the State Government to requisition any immoveable property in the circumstances mentioned in the section by an order in writing.
Section 40 which provides for the power to delegate may be set out in entirety: "section 40( 1 ) The Central Government may, by order, direct that any power or duty which by this Act or by any rule made under this Act is conferred or imposed upon the Central Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also (a) by any officer or authority subordinate to the Central Government, or (b) whether or not the power or duty relates to a matter with respect to which a State Legislature has power to make laws, by any State Government or by any officer or authority subordinate to such Government, or (c) by any other authority.
(2) The State Government may, by order, direct that any power or duty which by this Act or by any rule made under this Act is conferred or.
imposed on the State Government or which, being by this Act or any such rule conferred or imposed on the Central Government, has been directed under sub section (1) to be exercised or discharged by the State Government, shall, in such circumstances and under such conditions, if any as may be specified in the direction, be exercised or discharged by any officer or authority not being (except in the case of a Union territory) an officer or authority subordinate to the Central Government." On December 13, 1962 the Central Government promulgated a notification delegating its power under certain sections of the Act including section 29.
This notification need not be set out in extensor.
Its material part is as follows : 204 "G.S.R. 1716 In exercise of the powers conferred by sub section (1) of section 40 of the Defence of India Act 1962 (5 of 1962) and of all other powers enabling it in this behalf, the Central Government hereby directs that the powers exercisable by it under the provisions the said Act specified in column (2) of the Schedule hereto annexed shall also he exercisable by each of the authorities mentioned in the corresponding entry in column (3) of the said schedule in respect of any immovable property situated within its jurisdiction.
Schedule S.No.
Provision of the Act Authorities.
1 2 3 1.Section 29,30(ex All collectors, District Mag cept the provise the istrates and Deputy Commission reto),31,32,33,35, and ers in the State and all politi 36 and sub ss.(1)and (3) officers in Nefa.
of section 37.
It is necessary now to turn to.
the relevant provisions of the Criminal Procedure Code in order to.
determine whether the Additional District Magistrate would be one of the authorities mentioned in column 3.
In Part II which is headed 'Constitution and Powers of Criminal Courts and Offices ', section 6 gives the classes of criminal courts and section 7 deals with Sessions, divisions and districts.
Section 9 provides for establishment of court of Session.
Section 10 lays down that in every district outside the presidency towns the State Government shall appoint a Magistrate of the first class who shall be called the District Magistrate.
It is further provided that the State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the State Government may direct.
It may be mentioned that in the State of Punjab after the separation of judiciary from the executive by the Punjab Separation of Judicial & Executive Functions Act, 1964 (Act XXV of 1964) certain amendments were made in section 10 but in the present case we are not concerned with them because the impugned order requisitioning the shop in question was made before the said Act (XXV of 1964) came into force.
It is well known that the object of appointing an Additional District Magistrate is to relieve the District Magistrate of some 205 of his duties and that he is subordinate to the District Magistrate to the extent specified in sub section
(3) of section 10.
It is equally well known that the District Magistrate occupies a very important position in the district and is the head of the Executive there and he exercises powers of superintendence and control over the other Magistrates in the district.
Apart from the powers which have been conferred by the Code of Criminal Procedure on him the District Magistrate is also.
known as the Collector for purposes of revenue laws.
He is variously called Collector in some States and Deputy Commissioner in other States.
Under section 11 of the Code whenever in consequence of the office of District Magistrate becoming vacant, any officer succeeding temporarily to the Chief executive administration of the district such officer also exercises all the powers and performs all the duties conferred and imposed by the Code on the District Magistrate.
The Additional District Magistrate as has previously been noticed, can similarly exercise all or any of the powers of a District Magistrate if the State Government makes a direction under section 10(2) of the Code but even an officer who heads the chief executive administration of the district temporarily under section 11, exercises all the powers of a District Magistrate.
The scheme of section 10 of the Code leaves no, room for doubt that the District Magistrate and the Additional District Magistrate are two different and distinct authorities and even though the latter may be empowered under sub section
(2) to exercise all or any of the powers of a District Magistrate but by no stretch of reasoning can an Additional District Magistrate be called the District Magistrate which are the words employed in sub section
(1) of section 10.
The argument which prevailed in the High Court and which the appellant has had to seriously meet in this Court, is that the Additional District Magistrate when invested by the State Government under section 10 (2) of the Code with all or any of the powers of the District Magistrate under the Code or under any other law for the time being in force, would squarely fall within the expression "District Magistrate" employed in column 3 of the notification dated December 13, 1962 by means of which the Central Government delegated its power under certain sections of the Act including section 29.
The reasoning of the High Court was that on a proper construction of the notification it was clear that the "Central Government was desirous of delegating its power in favour of the officers in fact and actually discharging duties and functions in exercising the powers of Collectors, District Magistrates and Deputy Commissioners.
The High Court also looked at the other provisions in respect of which the powers had been delegated and drew the conclusion that the delegation was not confined only to officers appointed as such under section 10(1 ) of the Code of Criminal Procedure.
Learned counsel for the appel 206 lant has assailed the decision of the High Court principally on two grounds for which he has sought support from a decision of the Nagpur High Court in Prabhulal Ramlal Kabra vs Emperor(1).
In that case an order had been made under Rule 26 of the Defence of India Rules by the Additional District Magistrate of Raipur directing the detention of one Bharatchandra Kabra.
That Rule conferred power of detention on the Central Government and the Provincial Government but by virtue of the provisions relating to delegation the District Magistrate had been empowered by the Provincial Government to exercise those powers.
The Additional District Magistrate who made the order of detention had been conferred powers under section 10(2) Cr.
Code almost in similar terms as are to be found in the present case.
In other words he could exercise all the powers of a District Magistrate under the Code or under any other law for the time being in force.
Two points were agitated before the Nagpur court; the first was that the word "law" in "any other law" occurring .in section 10(2) of the Code was not meant to include an executive order but only legislative enactments, and rules, regulations or orders which had the force of law.
The second was that the Act and the Rules made thereunder were special laws enacted to meet an emergency and they conferred extraordinary and drastic powers on the executive and it was precisely for that reason that it was imperative that those powers must be exercised with due sense of responsibility and with circumspection by an officer or authority of a certain status and experience and, therefore, that power had been delegated to the District Magistrate.
Both these contentions prevailed with the Nagpur High Court and it was held that the Additional District Magistrate could not exercise powers under Rule 26 of the Defence of India Rules simply by virtue of the notification under section 10(2) of the Code of Criminal Procedure.
There is an exhaustive discussion on the first point in the Nagpur judgment but it is altogether unnecessary to examine its correctness because we are of the opinion that most of the reasons given in support of the determination of the second point are clear and cogent and must be accepted as correct.
These reasons may be summarised as follows (i) very wide, 'almost autocratic, powers are conferred on the Government in the matter of detention .and therefore they must be exercised with a due sense of responsibility and circumspection by an officer of a certain status and experience; (ii) when the Government delegates its power to an officer or authority subordinate to it, is not unreasonable to assume that it fully considers the fitness of the delegate before making the order in respect of delegation: (iii) the Additional District Magistrate who is invested with the powers of a District Magistrate does not thereby attain the status of a District Magistrate as there can be only one person (1) A.I.R. 1944 Nag.
207 in the district who can be a District Magistrate and (iv) the Government when it conferred the power on the District Magistrate conferred it on the officer actually holding the office of the District Magistrate and no one else.
It has not been disputed that the powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under article 19(1)(f) of the Constitution.
The Central Government while making the delegation of its power under section 29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it was for that reason that an officer or authority of the high status of a District Magistrate in the district was empowered to exercise that power.
Apart from these considerations we see no reason to deviate from the normal rule that the expressions or words which have been used in the notification must be read as such and not in any other manner unless the context requires that the latter course should be followed.
In the present case the words "District Magistrate" could not possibly be read as Additional District Magistrate and it is only by resorting to the notification issued under section 10(2) of the Code that the Additional District Magistrate can be said to have empowered to exercise the powers of the District Magistrates.
The reasons which prevailed with the Nagpur court and which have already been summarised adequately meet the contrary view that the Additional District Magistrate should be held to be competent to act under section 29 of the Act even though the Nagpur case was one of detention.
Coming to.
the decisions of this Court not much assistance can be derived from them.
In Ajaib Singh vs State of Punjab(1) the Additional District Magistrate of Amritsar who had been invested with the powers of a District Magistrate under section 10(2) of the Code was incharge of the office of the District Magistrate when the latter was transferred.
He passed an order detaining a person under Rule 30(1)(b)of the Defence of India Rules 1962.
It was held that the Act and the Rules showed unmistakably that the powers of detention could be exercised only by the State Government or by an officer or authority to whom it might be delegated but who.
shall, in no case, be lower in rank than a District Magistrate.
The Additional District Magistrate was below the rank of a District Magistrate and even though he had been invested with all the powers under the Code and also under any other law for the time being in force he was still not the District Magistrate unless the Government appointed him as such under section 10(1).
This case would have been most apposite for the present case but for the clear distinction that in provisions (1) ; 208 under which the detention was made it was provided that the powers could be delegated to no one who.
was lower in rank than a District Magistrate.
There is no such provision in the matter of delegation in the present case.
One rule, however, emerges quite clearly which is even otherwise unexceptionable that unless a person has been appointed under section 10( 1 ) of the Code he cannot be called a District Magistrate and that an Additional District Magistrate is below the rank of a District Magistrate.
The Central Talkies Ltd. Kanpur vs Dwarka Prasad(1) on which reliance was placed by the counsel for the respondents related to interpretation of certain provisions of the U.P. (Temporary) Control of Rent and Eviction Act 1947.
Section 3 of that Act enabled a landlord to file a suit for eviction of the tenant with the permission of the District Magistrate.
Section 2(d) defined District Magistrate as including an officer authorised by the District Magistrate to perform any of his functions under the Act.
By a notification issued under section 10(2) of the Code of Criminal Procedure one Mr. Seth was appointed as an Additional District Magistrate with a, Il the powers of the District Magistrate.
The landlord applied to the District Magistrate for permission to file a suit for ejectment against the tenant.
The District Magistrate transferred that application to the Additional District Magistrate who granted permission.
The tenant challenged the same on the ground that the permission granted by the Additional District Magistrate was invalid as the District Magistrate mentioned in section 3 of the aforesaid Act was persona designate.
This contention was repelled by this Court and it was observed that a persona designate was a person selected as an individual in his private capacity, and not in his capacity as filling a particular character or office.
This case is clearly distinguishable on the ground that under section 3 of the U.P. Act the District Magistrate himself could authorise any officer to perform any of his functions.
That showed that the legislature did not intend that the functions to be performed under section 3 must be performed by the District Magistrate alone and by no one else.
Counsel for the appellant has called attention to a Bench decision of the Punjab High Court in Guru Datt vs Sohan Singh & Another(2) in which a question arose whether the Deputy Commissioner for the purposes of an election petition under the Punjab Panchayat Samities and Zila Parishads.
Act 1961 and the Rules framed thereunder was a persona designate and it was held that it was the Deputy Commissioner alone who could perform the functions which the statute and the rules conferred on him even though the Governor had made an order declaring the ex cadre posts of Additional Deputy Commissioners to be equivalent in (1) ; (2)I.L.R. 1969 Punj.
134. 209 status to the cadre posts of Deputy Commissioners.
This decision may be open to some criticism owing to the observations made in Central Talkies ' case(1).
However, in the present case we are not basing .our decision by taking into consideration the line of argument of persona designata.
For the reasons which have already been stated the appeal is allowed with costs, with the result that the writ petition filed in the High Court succeeds and the impugned order shall stand quashed.
G.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
By notification under section 40(1) of the Defence of India Act, 1962 the powers of the Central Government in respect of certain sections of the Act including section 29 thereof were conferred on Collectors, District Magistrates, Deputy Commissioners and political officers in Nefa.
The Additional District Magistrate of Batala in the Punjab acting under section 29 of the Act passed an order requisitioning a shop belonging to the respondent which was occupied by the appellant as a tenant.
The appellant challenged the order of requisition in a writ petition to the High Court without success.
In appeal before this Court the question that fell for consideration was whether an additional District Magistrate was empowered under section 10(2) of the Code of Criminal Procedure to exercise the powers under section 29 of the Defence of India Act delegated by the Central Government to District Magistrates.
HELD: The powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under article 19 ( 1 ) (f) of the Constitution.
The Central Government while making the delegation of its power under section 29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it was for that reason that an officer or authority of the high status of a District Magistrate in the District was empowered to exercise that power.
There was also No. reason in the present case to deviate from the normal rule that the expressions or words used in the notification must be read as such and not in any other manner unless the context requires that the latter course should be followed, and the words "District Magistrate" could not be possibly read as "Additional District Magistrate".
[207 B D] The notification issued under section 10(2) of the Code of Criminal Procedure could not serve to confer on the Additional District Magistrate the powers of the District Magistrate under section 29 of the Defence of India Act for the same reasons as prevailed with.
the Nagpur High.
Court in Prabhulal Ramlal Kabras case in denying to the Additional District Magistrate the power of the District Magistrate under R. 26 of the Defence of India Rules.
[207 E, 206 E F] Prabhulal Ratnlal Kabra vs Emperor, A.I.R. 1944 Nag. 84, approved and applied.
Ajaib Singh vs State of Punjab, ; , Central Talkies Ltd. Kanpur vs Dwarka Prasad, ; and Guru Dutt vs Sohan Singh & Ant.
I.L.R. 1965 Punj.
134, referred to.