JHANSI ELECTRIC SUPPLY CO LTD Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THE petitioner before me is Messrs. Jhansi Electric Supply Co. Ltd. which is a public Limited Company incorporated under the Indian Companies Act. Its registered office is situated at 359. Civil Lines, Jhansi. The said Company ran an Electric Supply Undertaking in the town of Gorakhpur under a licence granted by the Government of U.P. for supply of electricity to the consumers in the town. In that connection it has its offices in Gorakhpur and one of the premises which the said Company had taken on rent was Nawal Kishore Buildings situate at Mohalla Purdilpur and bplonginf1 to one Smt. Sudha Agrawal. With effect from 1st November 1963 the licence of the said company for supply of electricity in Gorakhpur stood revoked and the Undertaking was taken over by the U.P. Electricity Board Thereupon a skeleton office was kept by the said company at Gorakhpur for completing the formalities in connection with the handing over of the assets and for realisation of its dues from the consumers which run into several thousands The said company had kept a small office in the rented building in Purdilpur in which were kept its books, registers and some furniture One or two rooms in the rented premises were also kept reserved by the said company for lodging its officers who came to Gorakhpur in connection with the companies' business. Those rooms contained the necessary furniture, utensils and other paraphernalia for cooking of food etc. The rentrd premises were looked after by a Chaukidar on behalf of the Company. The District Magistrate, as the affidavit of the petitioner shows, had full knowledge of the address of the Head Office of the Company at Jhansi. It appears that on the 5th of June 1965 the District Magistrate of Gorakhpur passed an order in exercise of his powers under Section 29 of the Defence of India Act 1962 requisitioning the abovesaid rented premises in Purdilpur, professedly for maintaining services essential to the life of the community. It was ordered that possession of the said premises be delivered to Sri K.P. Misra, Assistant Commandant of P.A.C. Gorakhpur, by Messrs. Jhansi Electric Supply Company Ltd. who was the occupant latest by 10 a.m. on June 6, 1965. It was further ordered that the copy of the order was to be affixed prominently on the premises requisitioned. This notice of the District Magistrate was addressed to the Jhansi Electric Supply Company Ltd. at house No. 107, Mohalla Purdilpur, Gorakhpur, and not to the Head Office of the Company at Jhansi, though the District Magistrate had full knowledge of the Jhansi address of the Company. It is not even known on whom was this notice actually served and at what time. It is, however, stated in a supplementary affidavit on behalf of the petitioner that a copy of this notice was found posted at the requisitioned premises. It is also stated that a copy of the said notice was served upon Smt Sudha Agrawal, the landlady In the forenoon on the 6th of June 1965, which was a Sunday. Sri K.P Misra alone with P.A.C constables riding in a truck reached the requisitioned premises threw away the registers, books and other goods belonging to the petitioner on the open road and then forcibly occupied the requisitioned premises The servant of the petitioner stationed at Gorakhpur telegraphically informed the Head Office at Jhansi The representative of the petitioner then met the District Magistrate on the 8th of June 1965 and protested at the action taken in dispossessing the petitioner in such a highhanded manner The District Magistrate, however, did not redress the grievance of the petitioner.

(2.) ALL the facts narrated above are based on the affidavit and the supplementary affidavit of the petitioner. Despite the copies of the petition, the affidavit and the supplementary affidavit having been served on the Standing Counsel as early as July 1965, no counter-affidavits have been filed on behelf of the respondents who are the District Magistrate, Gorakhpur, the State of U.P. and the Union of India. To me it appears that the third respondent. Union of India, was not a necessary party as no relief is being sought against it and none of its officers were accommodated in the requisitioned premises. It is apparent that Union of India is not interested in the case as no appearance has been put on its behalf. However, on behalf of the first and second respondents though the learned Junior Standing Counsel has appeared to oppose the petition but no counter-affidavit has been filed establishing thereby that the facts which have been stated in the affidavit and supplementary affidavit by the petitioner cannot be controverted. At the commencement of hearing the learned Junior Standing Counsel prayed for adjournment of the hearing of the petition to enable him to take instructions and file affidavits. I gave due consideration to the prayer made. I enquired from the learned Junior Standing Counsel as to why instructions had not been given to him to file a counter-affidavit so far. The reply which the learned Junior Standing Counsel gave was that as early as December 1965 instructions were received to file a counter-affidavit but since then no local official turned up for swearing a counter-affidavit and no counter-affidavit sworn by any official at Gorakhpur was sent. This petition itself was shown in the next to be heard list a long time back and' was also on the Daily Cause List for a number of days before it could be reached yesterday. In these circumstances I think the prayer of the learned Junior Standing Counsel for adjournment of hear ths is not reasonable. There is one more circumstance which places the respondents in a difficult position. This writ petition was expedited on the orders of the learned Chief Justice. Under the Rules of this Court the order for expedited hearing is passed after hearing the respondents. It was at that stage that the respondents should have been warned that the case would come up for hearing soon and the counter-affidavit, if any should be filed. All this shows that the Standing Counsel and through his office the local authorities were all the time aware that the petition is to be heard. They also knew what were the allegations in the petition. Not filing of a counter-affidavit or controverting the facts alleged by the petitioner despite all this knowledge and warning, leads to only one conclusion alone and that is that the first and second respondents cannot possibly controvert any allegation of fact made on behalf of the petitioner in support of the petition

(3.) THE District Magistrate concerned had ample powers under other laws which could more properly be made use of for the purpose of providing accommodation to the Assistant Commandant of the P.A.C. It is not the case that in Gorakhpur at the relevant time some such circumstances had come into being that but for requisitioning the house in dispute and providing accommodation to Sri K.P. Misra, Assistant Commandant, it would not have been possible to maintain services essential to the life of the community. An argument was made by the learned Junior Standing Counsel that if the District Magistrate who was appropriate authority under Section 29 of the Defence of India Act 1962, thought that requisitioning the house in question was necessary in order to maintain services essential to the life of the community then his opinion in that respect would be final and the same could not be legally questioned before a court of law. Section 29 in its terms authorises the Central Government and the State Government to form an opinion. The powers for requisitioning can no doubt be delegated under Section 40 of the Act but I doubt if the power to form opinion can be delegated. The act of requisitioning takes place after an opinion has been formed. However. I do not want to further dilate upon this question as in my opinion it is not necessary for the purpose of deciding this writ petition to express any definite opinion whether the District Magistrate was competent to form an opinion Since the petitioner has attacked the impugned order on the ground that it was passed in mala fide exercise of power it is in that context that I consider the fact of providing a house to Sri K.P. Misra, the Assistant Commandant of P.A.C.. to be far and remote from what the District Magistrate regards as the need for requisitioning that is for maintaining services essential to the life of the community it was submitted by the learned Junior Standing Counsel that Sri K.P. Misra being a member of the Force whose avowed object is to protect the life and property of the citizen, to provide a house for residence of an Officer commanding that force would be a purpose connected with maintaining services essential to the life of the community. On the other hand, Sri Jagdish Swarup, learned counsel appearing for the petitioner, submitted that the phrase, maintaining services essential to the life of the community does not imply provision for any individual person howsoever important position he may be holding in Police Force. According to the learned counsel what the phrase connotes is requisitioning some accommodation for the purpose of opening any centre for essential services, depot for keeping implements for any such services, a superintending office and the like. Again it is a matter on which I would not like to carry on further discussion in my judgment, since I consider that it is not necessary for my present purpose. I have already observed that the action of the District Magistrate does appear to be ill thought and high handed