Holding

On derequisition, possession must be restored to the person from whom it was taken at the time of requisition, unless a final allotment exists, leading to restoration of plot 60 to Nigam and dismissal of the appeal of Amar Singh.

Summary

Harish Chandra Nigam and Amar Singh were allotted industrial plots on a provisional basis in 1956, but the provisional allotments were cancelled in 1962. Before eviction could be effected, the District Magistrate requisitioned the plots under section 29 of the Defence of India Act, 1962, and took possession from the appellants. Upon derequisition in 1967, the magistrate ordered the possession to be given to the Director of Industries, who subsequently allotted one plot to Mrs. B. K. Anand. The appellants challenged the derequisition orders, arguing that possession should revert to them as the persons from whom it was taken. The Supreme Court held that under section 35(1) the property must be released to the person from whom possession was taken at the time of requisition, unless a final allotment exists, and that the inquiry need not examine antecedent title. Consequently, the Court directed the return of plot 60 to Nigam, subject to the Government’s right to retake it, and dismissed the appeal of Amar Singh as the plot had been lawfully allotted to Mrs. Anand.

Issues considered

Whether derequisition under s.35 of the Defence of India Act, 1962 requires an inquiry into title antecedent to the requisition.
Whether possession on derequisition must be restored to the person from whom it was taken at the time of requisition.
Whether the appellants, whose provisional allotments were cancelled, have locus standi to claim possession of the plots.
Whether the Government may lawfully allocate the derequisitioned plot to a third party instead of the original possessor.

Legislation cited

Defence of India Act, 1922s. 29
Defence of India Act, 1962s. 29, s. 35(1), s. 35(2)

Subjects

Defence of India Actrequisitionderequisitionpossessionprovisional allotmentland allocationlocus standimandamus

Judgment

809

HARISH CHANDRA NIGAM A
v.
STATE OF U.P.
January 21, 1980
[N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.] B ~

Defence of India Act, 1962, se!ctions 29 and 35(1) scope of-RequiSitioii
..-,, crders issued to the person actually in possession, but while issuing re'ijuisl-
tion orders, possession ordered to be given to the State and not to the individuals
.from whom taken-Propriety of the order.

The appellants in both the appeals were allotted a plot each "provisionally c
subject to the final approval of Government" and possession thereof was
also given in 1956. Six years later by letter dated 31-10-62 they were
informed that "the State Government has not approved· the allotment in your
favour and the provisional allotment made in your favour stands cancelled".
Steps were to be taken for the eviction as per the said J~tter of cancellation.
but before any action was taken, the District Magistrate requisitioned the
·said plots for defence· purposes under section 29 of the Defence of India D
Act, 1922. The letters of requisition were addressed to the apjiellants and
poosession taken. No steps were taken by the Department for taking formal
-or symbolical possession of the plots in question after they were requisitioned
'by the Magistrate. Later on, while derequisitioning the said plots under section
35(1) of the Defence of India Act 1962, the Magistrate "specified the Direc-
tor of Industries, Kanpur as the person to whom the possession of tlte said
plots shall be given". Possession was given accordingly and the Director of E
Industries in CA 560/70 in turn allotted the-plot covered in it to one Mrs. B. K.
Anand respondent 5 therein.

The writ Petitions filed by the appellants in the High Court challenging
...__ 1he said orders falled and hence the appeal by special leave.

Allowing CA 559/70 and dismissing CA 560/70, the Court, F

HELD : Tb,e inquiry envisaged under sub section (I) of section 35 of the
Defence of India Act, 1962, is necessitated only if facts and events taking
place after' ~equ~ition necessitate it. Otherwise not. As for example, sup·
pose, possession Of a property is taken from X and after requisition be
dies and dispute starts between his heirs as to who is. entitled to get back the
:Property. A summary and prima facie inquiry may be made under sul>~s. (1) G
and property may be released in favour of the person who may be entitled to the
·possession of it in the opinion of the Government. Of course such a· decision
would be subject to the adjudication of the rights of the parties in accordance
with sub-s. (2). [814 C-BJ

Facts. anterior to the requisition are not necessary to be investigated for
release of the property because the property has to be released in favour of H
the person from whom possession was taken. If it were not so then it would
l>e enlarging the scope of the inquiry envisaged under sub-s. (I) of s. 35 of
810 SUPREME COURT REPORTS [1980) 2 S.C.R:

A the Act and the power of the Government to adjudicate upon anterior title
of the various claimants to the property. This is not the scope of the
inquiry. [814 E-F]
1"ecbnically speaking on a correct interpretation of the· law the property
on de~requisition; ought to have been released in favour of the· two appellants
in the two appeals from whom possession was taken at the time of requi·
B sition. The requisition was effected by an order in writing addressed to the
person in possession of the property in accordance with sub-s. (2) of s. 29.
He may not be the owner of the property. But on requisition possession was
taken from him. [814 C-D, F-G]
,...
[The Court, however, passed a qualified and conditional order in terms]. _j
_

c CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 559-560 of
1970.
Appeals by Special Leave from the Judgment and Order dated
24-1-1969 of the Allahabad High Court in Special Appeal No. 511
of 1968 connected with Special Appeal No. 512 of 1968.
D R. K. Garg and V. J. Francis for the Appellant.
Madan Bhatia for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-These two appeals by special leave have been
E heard together as common questioos of law and fact are involved in
them. We shall state the facts of Civil Appeal No. 559 of 1970
in which the appellant is Shri Harish Chandra Nigam. The facts of
the other appeal viz. Civil Appeal No. 560 of 1970 in which the
appellant is Shri Amar Singh are almost identical except ooe which
shall be stated hereinafter. The plot concerned in Nig:im's appeal is .......
F plot no. 60 aud in the other appe;ll it is plot no. 6. Nigam made an \
application to the Director of Industrie~, Uttar Pradesh for allotment
of the plot to him for industrial purposes. By an order dated
November 22, 1956 the applimtion was "provisionally accepted sub-
ject to the final approval of Government." Finally he~was inforined
G
by the Manager of Industrial Estate, Kalpi Road, Kanpur in his letter
dated 31-10-1962 "that the State Government has not approved the
allotment in your favour and the provisional allotment made in your
favour stands cancelled." But it appears after the provision~] allot-
ment Nigam was put in possession of the land. Steps were to be
taken for his eviction after giving information as to the cancellatfon
;B of the allotment in the letter aforesaid dated 31-10-1962. But
before these steps were taken and possession was recovered from hinl
the District Magistrate, Kanpur requisitioned the plot under section
H. c. NIGAM v. U.P. STATE (Untwalia, !.) 8 11

!< ·29 of the Defence of India Act, 1962; hereinafter called the Act. This A.
-order is dated 7-12-1963. The order reads as follows : -
• "Whereas in my opinion it is necessary and expedient
to requisition unit no. 60 in the GovJ Industrial Estate,
Kanpur specified below, of which you are the person in
possession for efficient conduct of Milijary operatiogs. B
And whereas the powers of requisitioning under Section
29 of the Defence of India Act, 1962 (Ct:;ntral Act. No.
~ 51 of 1962) have been conferred on me by the Govern-
) ment of Uttar Pradesh under Notification No. 5589/18-I-
LA/63, dated January 14, 1963 issued by Revenue (B) c
Department-/18 Bhardwaj, District Magistrate, Kanpur
hereby requisition the aforesaid Unit and or_der that posses-
sion thereof be delivered by 11-12-63 to the General Mana-
ger, Ordnance Factory, Kalpi Road, Kanpur, after remov-
ing therefrom any furniture or other articles.
D '
I further order that the Tahsildar, Kanpur shall arrange
for the delivery of possession of the aforesaid unit to
' the General Manager, Ordnance Factory, Kalpi Road, Kan-
pur at the expiry of the period indicated above, if the posses-
' sion is not delivered in compliance of"the above order."
•· E
Pursuant to the above order possession was taken from appellant
'Nigam on January 2, 1964 and was handed over to the General
Manager, Ordnance Factory, Kanpur. No steps were taken by the
Industries department for taking formal or symbolical possession of
the plot in question after it was requisitioned by the District Magis-
trate. Then came the derequisitioned order pa_ssed by the District
Magistrate under s. 35 of the Act on 20-1-1967. In passing it
may· b_!' mentioned here that the appellant had kept his stores in
two of the rooms standing in the land. But this fact is not very
material for the purpose of_ deciding the matter in issue before us.
' The de-requisition order reads as follows : -
' G
"Regarding requisition of Unit No. 6 and 60 Industrial
Estate for starting Artisan Training School by the
'Ordnance Factory, Kalpi Road, Kanpur.
ORDER
Whereas the property specified in the schedule hereto B
appended was requisitioned by the order of the District
Magistrate, Kanpur dated 7-12-1963 until further order.
812 SUPREME COURT REPORTS [1980] 2 S.C.R.

A And whereas it has now been decided that the said
property shall be released from requisition with immediate
effect.
•
Now, therefore, in exercise of the powers conferred
by sub-section (1) of Section 35 of the Defence of India
B Act, 1962 (Act No. 51 of 1962), I, S. S. Sidhu, District
Magistrate, Kanpur being the competent authority do here-
by declare that the said property is released fro!Il requisi-
tion, and hereby specify the Director of Industries, Kanpur
as the person to whom the poss<:SSion of the said property
shall be given.
c
Thereupon the petitioner filed a writ petition in the Allahabad
High Court to issue a writ in the nature of mandal!lus against the
respondent directing to deliver possession of the property in dispute
!o the appellant and not to deliver possession to any other person.
It appears, however, thaJ possession of the property had been given
D to the Industries departme11t. The petitioner unsuccessfu!Jy prose-
cuted his writ petition before the learned single Judge of the High
Court. He failed in appeal also. Hence the prese11t appeal. '

One extra fact which need be mentioned in regard to the case of >
Amar Singh is that after de-requisition and after possession of the
E plot was taken by the Industries department of the Government of •
Uttar Pradesh the plot was allotted to Mrs. B. K. Anand, respondent
no. 5 in CTvil Appeal No. 560 of 1970. The other facts of his case
are identical.

Learned Counsel for the appellants submitted before us that irres-
F pective of the disputed question of fact whether there was final allot-
ment in favour of the appellant or not, since requisition orde~ had
l;>een served on him and possession had been taken from him, the
property and its possession on de-requisition ought to have been
released to him. It could not be made in favour of the Industries
department. Learned counsel for the State, on the other hand, sub-
G
mitted that since the appellant had not semblance of right, title or
interest left in the plot after cancellation of the provisional allotment
in his favour he had no locus standi to ask for· a writ of mandamus
for delivery of possession of the plot to him. Direction was given
for releasing the plot in favour of the Industries department and if
~ H the appellant is so advised he may recover possession of the plot on
es.tabgshme.nt of his right, title or interest in the plot in a competent
court in accordance with sub-s.(2) of section 35 of the Act. It was
•
H. c. NIGAM v. U.P. STATE (Untwalia, !.) 813

further submitted in case of Amar Singh that the plot had been A
allotted to-:Mrs. B. K. Anand and she c_annot be dispos~essed now.
We shall read the two provisions first and enunciate the law
engrafted in them and .then proceed to pass the final orders in the
two appeals as their respective facts and circumstances may warrant.
B
Sections 29 and 35 read as follows :--
"29. (l) Notwithstanding anything contained in any
\ other law for the time being in force, if in the opinion of
I the Central Government or the State Government it is
necessary or expedient so to do for securing the defence
of India, civil defence, public safety, maintenance of public
c
order or efficient conduct of military operations, or for
maintaining supplies and services essential to the life of the
community, that Government may by order in writing re-
quisition any immovable property and may make such
further orders as appear to that Government to be neces- D
sary or expedient in connection with the requisitioning :
Provided that no property or part thereof which is exclu ·
sivdy used by the public for religious worship shall be re-
quisitioned.
(2) The requisition shall be effected by an order in E
writing addressed to the person deemed by the Central
Government or the State Government, as the case may be,
to be the owner ur person in possessiop. of the property,
and such order shall be served in the prescribed manner on
the person to wl,om it is addressed.
F
(3) Whencver any property is requisitioned under sub-
section ( 1), tl1e period of such requi§.ition shall not extend
beyond the period for which such property is required for
any of th~ purposes mentioned in that sub-section.
' 35. (1) Where any property requisitioned under section G
29 is to be released from such requisition, the Govern-
ment by which or under whose authority the property was
requisitioned or any person generally or specially authorised
by it in this behalf may, after such inquiry, if any, as it or
he may in any case, consider necessary to make or cause
to be made, specify by order in writing the person to whom H
possession of the property shall be given and such posses-
sion shall, as far as practicable, be given to the person who
•
814 SUPREME COURT REPORTS Ll98UJ 2 S.C.R.

"A appears to the Government or, as the case may be, the per-
son authorised as aforesaid, to be entitled to the possession
of the property at the time such order is made.
(2) The delivery of possession of the property to the
person specified in the order under sub-section ( 1) shall
B be a full discharge of the Government from all liabilities
in respect of the property, but shall not prejudice by 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 delivered."

c The requisition was effected by an order in writing addressed to
the person in possession of the property in accordance with sub-s.
(2) of s. 29. He may not be the owner of the property. But on
requisition possession was taken from him. The inquiry envisaged
under sub-s. (1) of s. 35 is necessitated only if facts and events
taking place after requisition necessitate it. Otherwise not. As for
D example, suppose, possession of a property is taken from x and after
requisition he dies and dispute starts between his heirs as to who is
entitled to get back the property. A summary and prima fade inquiry
may be made under sub-s. (1) and property may be released in
favour of the person who may be entitled to the possession of it in
the opinion of the Government. Of course such a decision would
E
be subject to the adjudication of the rights of the parties in accord-
ance with sub-s. (2). Facts anterior to the requisition are not
necessary to be investigated for release of the property because the
property has to be released in favour of the person from whom pos-
session was taken. If it were not so then it would be enlarging the
F scope of the inquiry envisaged under sub-s. (1) of s. 35 of the ;.ct
and the power of the Government to adjudicate upon anterior title
of the various claimants to the property. This is not the scope of
the inquiry. It is, therefore, clear to us that technically speaking on
a correct interpretation of the Jaw the property on de-reguisition
ought to have been released in favour of the two appellants in the
G two appeals from whom possession was taken at the time of requi-
sition. But on the special facts of these two appeals we do not feel per-
suaded to make our unqualified or unconditional order in these
appeals filed on grant of special leave under Art. 136 of the Consti-
tution as justice requires only a qualified and conditional order. It
is plain on the facts placed before us that there was no final allot-
B ment of the plots in favour of the appellants. The allotment was
only provisional subject to the approval of the Government. Pos-
session had been given to them and before requisition the Industries
S~-Lf1.1M

H. c. NIGAM v. U.P. STATE (Untwalia, !.) 815

.department had not recovered back posse~sion of either of the two A
plots. In such a situation we make the following orders in the two
appeals separately.

Civil Appe.al No. 559 of 1970.
The possession of plot no. 60 is directed to be delivered to appel- 11
fant Nigam within a period of six months from today. If during the
said period of six months the Government takes adequate and legal
-steps for takirig back fo;mal possession of the plot from him, then
lJOSsession need not be delivered back to Nigam. But on their
failure to do so our girection will hold good and possession of plot
no. 60 will have to be given to Nigam subject to its recovery back by C
the Government even later. It will be open to the aggrieved party,
if necessary, to initiate a proceeding in accordance with sub-s. (2)
of s. 35. We allow this appeal in part to the extent and in the
manner indicated above.

Civil Appeal No. 560 of 1970. D
Since in this case allotment of the plot was made in favour of
Mrs. B. K. Anand, we do not consider it just and expedient to direct
the Government to take steps for completing the formality of taking
• possession and to dispossess Mrs. Anand. On the special facts of
'>this case we dismiss this 11ppeal in toto. E
There will be no order as to costs in either of the appeals.

'\/.D.K. C.A. 559 /70 allowed.
C.A. 560/70 dismissed.