GROVER, - (1.) THE following Judgment of the court was delivered by
(2.) 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 s. 10(2) of the Code of Criminal Procedure could make an order under s. 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. 20.00. According to the allegations made by the appellant herein in the petition which he filed in the High court under Arts. 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 24/03/1964, the Additional District Magistrate (respondent No. 2 herein) issued a requisitioning order purporting to be under s. 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 s. 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 s. 29 in addition to other S. (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. 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 s. 10(2) of the Cr. P. Code. The writ petition was consequently dismissed.
(3.) 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: `S. 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 subsection (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 13/12/1962 the central government promulgated a notification delegating its power under certain S. of the Act including s. 29. This notification need not be set out in extensor. Its material part is as follows :-`G.S.R. 1716---In exercise of the powers conferred by Ss. (1) of s. 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. JUDGEMENT_483_AIR(SC)_1969Html1.htm ;