SUBBA RAO, - (1.) THE following Judgment of the court was delivered by
(2.) THIS appeal by special leave is preferred against the judgment of a division bench of the Circuit bench of the Punjab High court at Delhi confirming that of a single Judge of that High court issuing a writ of mandamus against the Union of India directing it to restore possession of the flat requisitioned by the said government to the respondents. One Babu Ram was the owner of Flat No. 5, Aggarwal Building, Connaught Circus, New Delhi; respondents 1 to 6 are his sons-and widow. By an order dated 14/04/1943, the government of India requisitioned the said flat under r.75- A(1) of the Defence of India Rules for a period of one year from 15/04/1943. to Ap 14/04/1944. The said flat was put in the occupation of one Hardie of the Indian National Airways. The period of requisition was extended from time to time, and finally by an order dated 2/04/1946, the flat was requisitioned from 15/04/1946, until further orders of the central government. After Mr. Hardie vacated the flat, it was allotted to other officers. Babu Ram requested the government from time to time to de-requisition the said flat for his personal use. He represented that he was suffering from heart trouble and was continuously keeping indifferent health, that two of his sons had got married, and that in those circumstances it had become impossible for him to continue to live in their small house in a narrow lane ; but the government of India rejected his request on the ground that on surrender by the officers of the Indian National Airways it would be required for allotment to central government officers. Babu Ram died on 24/10/1951. It appears that four or five months in 1947 the flat was vacant and thereafter it was occupied by refugees from West Pakistan. It was afterwards given to the present respondent No. 7, Triveni Kala Sangam. On 4/11/1952, respondent No. 1 again requested the government to de- requisition the flat mainly on the ground that the said flat was not in use of the officers of the central government but was put in possession of Triveni Kala Sangam, which was a private dance and music school. As no reply was given to that request, the said respondent sent a reminder on 26/06/1953, and to that he received a reply to the effect that 'the matter is receiving attention and further communication will follow in due course.' On 16/09/1953, the government informed the first respondent that he could execute a lease deed in favour of the government in respect of the said flat. As the appellants did not put the respondents in possession of the said flat, they had no alternative but to file a petition for a writ of mandamus in the High court of Punjab. The petition was heard by Falshaw, J., and the learned Judge issued a writ of mandamus on 19/10/1954, directing the appellants to put the respondents in possession of the flat. Against the said order, on 26/11/1954, the appellants filed a Letters Patent appeal in the Circuit bench of the Punjab High court at Delhi. The appeal was filed within 30 days from the date of the said order after excluding the time taken for obtaining certified copies of the necessary documents but more than 20 days thereafter. The appeal was heard by a division bench of the said. High court consisting of the chief justice and Mehar Singh, J. The learned Judges held that the appeal was filed out of time and that there was not sufficient reason for excusing the delay. They also went into the merits of the case and agreed with Falshaw, J., that a case had been made out for issuing a writ. With the result that the appeal was dismissed. Hence the present appeal. Learned Attorney-General, appearing for the appellants, contends, that the Letters Patent appeal, it having been filed within 30 days from the date of the judgment of Falshaw, J., was within time, and that, in any view, having regard to the fluid state of the law on the question whether the and prescribed by the Limitation Act or the rule by the High court would govern that appeal, there Was sufficient cause for excusing the delay. On the merits he argues that the requisition made under r.75-A of the Defence of India Rules (hereinafter called the Rules) was continued unders.3 of the Requisitioned Land (Continuance of Powers) Act, 1947 (Act No. 17 of 1947) (hereinafter called the 1947 Act), whereunder the appropriate government was given the power to use or deal with a requisitioned land in such manner as may appear to it to be expedient, that in exercise of the said power the said government put Triveni Kala Sangam in possession of the same, and that under s.24(2) of the Requisitioning and Acquisitioning of Immovable Property Act, 1952 (hereinafter called the 1952 Act), the said requisition shall be deemed to be property requisitioned under s.3 of the said Act and that under the said section the said purpose must be deemed to be a public purpose, being the purpose of the Union and, as that purpose did not cease to exist, the respondents are not entitled to ask for de-requisition of the said flat. Mr. A. V. Viswanatha Sastri, learned counsel for the respondents, seeks to sustain the order of the High court both on the question of limitation as well as on merits. Three questions fall to be considered in this appear, namely (1) what is the period of limitation prescribed for an appeal against an order of a Single Judge of the Punjab High court to a division bench of the same High court ? (2) if the appeal was preferred out of time, was there a sufficient cause for excusing the delay in preferring the appeal ? (3) are the respondents now legally entitled to ask the central government to de-requisition the said premises under the 1952 Act ?
(3.) TO appreciate the first contention it is necessary to read the relevant provisions of the Limitation Act, the clauses of the Letters Patent and the rules made by the High court. The Indian Limitation Act, 1908. 'Section 29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule......' The First Schedule JUDGEMENT_247_AIR(SC)_1962Html1.htm LETTERS PATENT FOR THE HIGH court OF LAHORE. Clause 27. And WE do further ordain that it shall be lawful for the High court of Judicature at Lahore from time to time to make, rules and orders for regulating the practice of the court and for the purpose of adopting as far as possible the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the governor-General in council and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction respectively. Clause 37. And We do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the governor-General in Legislative council, and also of the governor-General in council under section seventy-one of the government of India Act, 1915; and also of the governor-General in cases of emergency under section seventy-two of that Act, and may be in all respects amended and altered thereby. Rules and Orders of the High court of Punjab. Rule 4: No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from thedate of the judgment appealed from, unless the admitting bench in its discretion, for good cause shown, grants further time for the presentation. It is clear from the aforesaid provisions that while under Art. 151 of the Limitation Act a period of 20 days is prescribed for preferring an appeal from an order of the High court of Punjab in the exercise of its Original Jurisdiction, under r. 4 of High court Rules for an appeal under cl. 10 of the Letters Patent a period of limitation of 30 days is provided. If Art. 151 applies, the Letters Patent appeal in the present case was clearly barred. But if r. 4 could be invoked, then the appeal was well within time. The combined effect of the provisions may be stated thus: Under cl. 27 of the Letters Patent, the High court of Judicature of Lahore has the power to make a rule prescribing the period of limitation in respect of appeals from orders made by that court in exercise of its Original Jurisdiction to a division bench of that High court. Under el. 37 thereof, the provisions of the Letters Patent are subject to the legislative powers of the governor-General in Legislative council and, therefore, any rule made in exercise of a power conferred under the Letters Patent must necessarily be subject to the provisions of the Limitation Act which is a law made by the Legislative council. Article 151 of the Limitation Act prescribes the period of limitation of 20 days for preferring an appeal against an order made by the High court in exercise of its original jurisdiction, and if there is no other limitation on that section, r. 4 of the High court Rules must give way to the said Article. But s. 29(2) of the Limitation Act limits the scope of that section, for it says that where a special or local law prescribes for an appeal a period prescribed therefore in the said Schedule, the provisions of s. 3 shall apply as if such period were prescribed therefor in that Schedule, that is, if there is a special or local law prescribing a period of limition, it will be deemed to be the period of limitation prescribed by the First Schedule to the Limitation Act in respect of an appeal covered by that rule. TO state it differently, if r. 4 is a special law, the Limitation Act itself must be deemed to prescribe the period of limitation mentioned under that rule for the class of cases covered by the said rule, and to that extent the rule derogates from Art. 151 of the First Schedule to the Limitation Act. Article 151 must be read subject to the special law. In this view, the argument that cl. 37 of the Letters Patent makes the rule made by the High court subject to the Limitation Act and, therefore, that Art. 151 shall prevail over r. 4 has no force. Briefly stated, the legal position is this: Under el. 27 of the Letters Patent, the High court has power to make a rule prescribing the period of limitation for a Letters Patent appeal against an order of a single Judge made in exercise of the original jurisdiction of the High court, and by reason of cl.37 thereof, the said rule is subject to the provisions of the Limitation Act; but the Limitation Act itself saves the operation of the said rule. With the result that r. 4 applies to such an appeal, whereas Art. 151 of the Limitation Act will govern appeals not covered by r. 4 or appeals, from orders made by other High courts in exercise of their original jurisdiction, if no rule similar to r. 4 is made by the said High court or High courts. In the premises the only question to be decided is whether r. 4 is a special law within the meaning of s. 29(2) of the Limitation Act. Rule 4 is made by the High court in exercise of the legislative power conferred upon the said High court under cl. 27 of the Letters Patent. As the said rule is a law made in respect of special cases covered by it, it would certainly be a special law within the meaning of s. 29(2) of the Limitation Act. This view was accepted by the Punjab High court in Punjab Co-operative Bank Ltd. v. Official Liguidators, punjab Cotton Press Company, Ltd. (in liquidation) (1). There, a full bench of that High court held that the statutory rules framed by the High court under cl. 27 of the Letters Patent under the authority delegated to it by His Majesty who, in turn, was acting under the powers conferred on him by Act of Parliament, are a 'special law'. We agree with this view. It is not necessary to deal with other decisions cited at the Bar, for in none, of them the scope of s. 29 of the Limitation Act was considered. Indeed, Mr. A.V. Viswanatha Sastri has not contended that r. 4 is not a special law within the meaning of s. 29 of the Limitation Act. If so, it follows that under r. 4 an appeal could be filed within 30 days from the date of the order of Falshaw, J., and the appeal having been filed on the twenty-third day, it was well within time. ;