# MADAN GOPAL AGARWAL v. DISTRICT MAGISTRATE, ALLAHABAD AND OTHERS

- **Citation:** [1973] 2 S.C.R. 610
- **Court:** Supreme Court of India
- **Decided:** 1972-10-10
- **Bench:** A. N. Ray, D. G. Palekar, M. H. BEG ANDS. N:DW!VEm
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madan-gopal-agarwal-v-district-magistrate-allahabad-and-others-5880
- **Pages:** 8

## Headnote

B
U.P. (Temporory) Accommodation Requisition Act 1947, S.3-0rder
of requisition 1nade lvithout hearing to owner occupant' whether valid.
1)\e appellal!t's house in Allahabad was let out to the State Government for a penod of five years.
Soon after the expiry of the period of
lease in September 1969 the District Magistrate passed an order under s.3
~f t.he U.P. (Temporary) Accommodation. Requisition Act 1947 ·rcquisittonmg the house to provide accommodation to a public
serva:nt.
The
app<:llant was asked to hand over possession of the house within 24 hours
after the expiry of 15 days from the date of the service of the order on
him. He challenged the order in a petition under Art. 226 of the Con· titution on the ground that tho order was issued without issui:ng any notice
to him and without giving him a hearing. The High Court dismi&5ed the
petition taking the view that since the house was taken away from
the
appellant's use for a temporary period only he did not stand deprived of
his property, and, therefore a detailed procedure wa' not :necessary. The
appeUant filed an appeal in this Court by special kave.
Allowing the appeal,
HELD : Although s,3 of the Act does not contain an expre" provision
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for notice and hearing before the making of the requisitioni;~g order, such
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a provision is to be read there by necessary implication.
The object of the
provision is to requisition nn ifumovable ptopcrty.
Requisitioning of the
property deprives the owner of the property of the right to hold and enjoy
the property as he likes. The right to hold and enjoy the property is a
cherished right.
It is difficult to assume that tho legislature would have
intended to deprive him of his cheri,hed right without noricc and hearing.
[6!3CJ
Under the main .part of s,3, the District Magistrate, after making up his
mind as to the existencr, of a. public purpose to warrant the making of an
order of requl,ition, has to decide whether, in view of that public purpo:-.e,
he has to requisition a particular accommodatio,D.
He has to con~idr.r the
suitability of the accommodation in the light of its location, size and com~
pcnsation payable.
These arc objective factors, and, there is no reason
w,by the District Magistrate should not hear the owner of the accommodation proposed to be requi'"itioned on these matters.
Under the first proviso to the S'>..,ction, the District Magi~tratc has to consider whether
the
building or part of a building is used for religious worship.
Under the
second proviso the District Magistrate is to see whether suitable alternative
accommodation ii available for the pe'rson in actual possession of the property. These matters cannot be fairly and satisfactorily determined without. giving a hearing to the owner or the person in occupation of the property. [613 H-61-4 GI
It is nece&sary to l>oar in mind that the Act d"".s not provide .for any
appeal or revision from the order of the D1str1ct Mag1~trate under s.3. The
J;Jistrict Magistrate is constituted the plenary authority. It s,eems reasonF
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M. G. AGARWAL v. DIST, MAGISTRATE (Dwivedi, J.)
611
able to think that the legislatuv~ intended that an order under s.3 should
be made after notice and hearing, so that no unfairness is done to anyone.
An elaborate proc~dure is not necessary. The barest minimum, however is a fair hearing. Notice ~hould be given to the person who will be
affected by the order of requisition asking him to show cause why his
accommodation should not be requisitioned.
He should be given reasonable time to file his reply to the notice.
T11> so~ cases it may :,e neces•
sary to give him an opportunity of producing his oral .and documentary
evidence. [615BJ
The contention that since an
order under s.3 is administrative it is
not necessary to hear th-o affected party could not be
aqcepted. This
Court, in Kraipak held that rules of 11>atural justice will apply to administrative enquiries. The decisions in Doud Ahmad and K. R. Errv hold that
in an enactment

## Text

610
MADAN GOPAL AGARWAL
v.
DISTRICT MAGISTRATE, ALLAHABAD AND OTHERS
October 10, 1972
A
[A. N. RAY, D. G. PALEKAR, M. H. BEG ANDS. N:DW!VEm, JJ.]
B
U.P. (Temporory) Accommodation Requisition Act 1947, S.3-0rder
of requisition 1nade lvithout hearing to owner occupant' whether valid.
1)\e appellal!t's house in Allahabad was let out to the State Government for a penod of five years.
Soon after the expiry of the period of
lease in September 1969 the District Magistrate passed an order under s.3
~f t.he U.P. (Temporary) Accommodation. Requisition Act 1947 ·rcquisittonmg the house to provide accommodation to a public
serva:nt.
The
app<:llant was asked to hand over possession of the house within 24 hours
after the expiry of 15 days from the date of the service of the order on
him. He challenged the order in a petition under Art. 226 of the Con· titution on the ground that tho order was issued without issui:ng any notice
to him and without giving him a hearing. The High Court dismi&5ed the
petition taking the view that since the house was taken away from
the
appellant's use for a temporary period only he did not stand deprived of
his property, and, therefore a detailed procedure wa' not :necessary. The
appeUant filed an appeal in this Court by special kave.
Allowing the appeal,
HELD : Although s,3 of the Act does not contain an expre" provision
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for notice and hearing before the making of the requisitioni;~g order, such
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a provision is to be read there by necessary implication.
The object of the
provision is to requisition nn ifumovable ptopcrty.
Requisitioning of the
property deprives the owner of the property of the right to hold and enjoy
the property as he likes. The right to hold and enjoy the property is a
cherished right.
It is difficult to assume that tho legislature would have
intended to deprive him of his cheri,hed right without noricc and hearing.
[6!3CJ
Under the main .part of s,3, the District Magistrate, after making up his
mind as to the existencr, of a. public purpose to warrant the making of an
order of requl,ition, has to decide whether, in view of that public purpo:-.e,
he has to requisition a particular accommodatio,D.
He has to con~idr.r the
suitability of the accommodation in the light of its location, size and com~
pcnsation payable.
These arc objective factors, and, there is no reason
w,by the District Magistrate should not hear the owner of the accommodation proposed to be requi'"itioned on these matters.
Under the first proviso to the S'>..,ction, the District Magi~tratc has to consider whether
the
building or part of a building is used for religious worship.
Under the
second proviso the District Magistrate is to see whether suitable alternative
accommodation ii available for the pe'rson in actual possession of the property. These matters cannot be fairly and satisfactorily determined without. giving a hearing to the owner or the person in occupation of the property. [613 H-61-4 GI
It is nece&sary to l>oar in mind that the Act d"".s not provide .for any
appeal or revision from the order of the D1str1ct Mag1~trate under s.3. The
J;Jistrict Magistrate is constituted the plenary authority. It s,eems reasonF
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M. G. AGARWAL v. DIST, MAGISTRATE (Dwivedi, J.)
611
able to think that the legislatuv~ intended that an order under s.3 should
be made after notice and hearing, so that no unfairness is done to anyone.
An elaborate proc~dure is not necessary. The barest minimum, however is a fair hearing. Notice ~hould be given to the person who will be
affected by the order of requisition asking him to show cause why his
accommodation should not be requisitioned.
He should be given reasonable time to file his reply to the notice.
T11> so~ cases it may :,e neces•
sary to give him an opportunity of producing his oral .and documentary
evidence. [615BJ
The contention that since an
order under s.3 is administrative it is
not necessary to hear th-o affected party could not be
aqcepted. This
Court, in Kraipak held that rules of 11>atural justice will apply to administrative enquiries. The decisions in Doud Ahmad and K. R. Errv hold that
in an enactment which deprives a petson of his property, there is neces·
sarily implied the pre-requisite of a hearing. [617FJ
The order of requisition in the present case having been made without
a hearing must be held to be illegal.
A. K. Kraipak and others v. Union of India, [1970] I S.C.R. 457,
Daud Ahmad v. The Dlwict Magistrate, Allahabad and others, A.LR. 1972
S.C. 896 State of Punjab v. K. R. Erry and Sobhag Rai Mehta, (1973]
2 S.C.R. 405, applied.
. Province of Bombay v. Kusaldas S. Advani and othe.rs, [1950] S.C.R.
621. Ram Chandra v. The District Magistrate of AligGrh and Othe,.., A.LR.
1953 Allahabad 520, The State ·of Bombay v. Bhanji Munji and another,
[1955]) I S.C.R. 777 and Collector of Ako/a and others v. Ramchartdra
and others, [1968] I S.C.R. 401 dist~nguished.
·
C1v1r. AP PELI.I.TE JURISDICTION : 'Civil Appeal. No. 80 of
1972.
Appeal by certificate from the judgment and order dated
January 23, 1970 of the Allahabad High Court in Civil
Misc.
Writ No. 392 of 1970.
V. M. Tarlwnde !. B. Go);al and R. A. Gupta, for the appellant.
G. N. Diksliit und M. V. Goswami, for the respondent.
The Judgment of the Court was delivered by.
DWIYEDI, J.-The appellai!lt is the owner of 32, Balrampur
House, Mumfordganj, Allahabad. After residing therein for some
time, he started living in 33 Pan Dariba, Allahabad with his
mother. His own house he let out on September 9, 1964 to the
State Gov,,rnment for a period of 5 years on a monthly rent of
Rs. 300/-.
The State Government obtained the lease for the
purooses of residence or office of the Directorate of Geology and
Mining, U.P. The lease was ~..'igned by Shri P, N. Singh, Geologist,
612
SUPREME COUil T llEPOll TS
[1973] 2 S.C.R.
on behalf of the State Government. In 1967 the appellant had
shifted from the house No. 33, Pan Dariba to house No. 398/5,
Meerapur, Allahabad. In Meerapur he was living as a tenant.
The period of lease with respect to .his own house expired
on September 9, 1969. The District Magistrate, Allahabad passed
an order under s. 3 of the U.P. (Temporary) Accommodation
Requisition Act, 194 7 (hereinafter referred to as the Act). The
order was made on October 4, 1969. By the order the District
Magistrate requisitioned the house to provide accommodation to
Shri P. N. Singh, Geologist, Directorate of Geology and Mining,
U.P. The appellant was directed to hand over possession of the
hous'! within 24 hours after the expiry of 15 days from the date
of"the service of the order on him.
The appellant filed a writ petition in the Allahabad High
Court 'challenging the validity of the order. One of the grounds
of challenge, was that the order was made without issuing any
notice to him and without giving him a hearing.
The petition
was dismissed summarily by a Division Hench of the High Court.
The argument of want of notice and hearing was not accepted by
the High Court. Feeling aggrieved with the decision of the High
Court, the appellant has filed this appeal by special leave.
Counsel for the appellant has submitted before us that ihe
requisitioning order is' invalid for want of notice and hearing.
Counsel for the District Magistrate says that we should not entertain the argument as it was not rais~d before the High Court.
But we arc satisfied on a reading of the .iudgment of the High
Court that the point was raised by the appellant before the High
Court. Rejecting the argument, the High Court said : "Where a
person is being deprived of his property, it can be said that he
should be given an opportunity before the land is acquired; but
by requisition the property is taken away from his use for a
temporary period and for sttch requisition such a detailed procedure is not necessary.
We are of opinion that the order of
requisition is not invalid, nor can s. 3 of the Act be said to be
ultra vires simply because it does not provide for a show cause
notice to be served on the owner before .tbe order of requisition
can be passed."
Coming to the argument, s. 3 of the Act reads :
"Jf in the opinion of the District Magistrate Jt ts
necessary to requisition any accommodati011 for any
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public purpose, he may, by order in writing. requisition
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such accommodation and may direct that tl)e possession
thereof shall be delivered to him within such period as
may be specified in the order; provided thai the period
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M. G. AGARWAL v. 01sr. MAGISTRATE (Dwivedi, J.)
613
so specified shall not be Jess than 15 days from the date
of the service of the order;
l'rovided also that no building or part of a building
exclusively used for religious worship shall be requisitioned under' this section.
Provided further that no accommodation which is
in the actual occupation of any person shall be requisitioned unless the District Magistrate is further of the
opinion that suitable alternative accommodation exists
for his needs or has been provided to him."
The section consists of three parts : the main part and the
two provisos Evidently it does not contain an express provision
for notice and hearing before the making of the requisitioning
order. But it appears to us that such a provision is to be read
thereby necessary implication. The object of the provision is to
requisition an immovable property.
Requisitioning of the property deprives the owner of the property of.the r_ight to hold and
enjoy the property as he likes. The right to hold and enjoy the
property is a cherished right. It is true that the Act is a temporary
measure, but it has remained on the statute book for 25 years.
There is acute scarcity of accommodation in the State, and. an
accommodation once requisitioned is ordinarily not expected to
be restored early to the owner. We find it difficult to assume that
the legislature would have intended to deprive him of his cherished
right without notice and hearing.
The District Magistrate may requisition an accommodation if
he is of opinion that it is necessary to requisition it for any public
purpose. He is accordingly to make up his mind on two matters :
(1 ) there exists a public purpose to warrant the making of an
order of requisition; and (2) in view of that public purpose it is
necessary to requisition a particular accommodation.
On the
second aspect he shall have to consider whether the particular
accommodation is adequate for the public purpose for which the
requisitioning order is sought to be made.
Fer instance, if a
particular accommodation is sought to be requisitioned for any
public office, the District Magistrate has to satisfy himself whether
it is sufficient for the needs of that public office and whether its
location and structure are suitable for that office. He should also
consider whether anv other equally gOod or better accommodation
may be requisitioned for that public office on payment of a lesser
amount of cori1pensation than the one which will be payable for
the particular accommodation proposed to be reauisitioned. These
:ire objective factors. and there is no reason wh'y the District
Ma~is~rate should not hear the owner of the accommodation proposed to be requisitioned on these matters.
The owner may
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'6 14
SUPRBMB COURT REPORTS
[1973] 2 S.C.R.
.suggest to h_im equally good accommodation for the public office
for which the Government will be required to pay a lesser amount
of compensation than the one which will be payable for his accommodation.
The first proviso to s. 3 pr9vides that no building or part of
a building "specially used for religious worship" shall be requisitioned by the District Magistrate. Whether a building or part of
a .building is being exclusively used for. religious worship, is a
question of fact.
In some cases it may become a hotly disputed
question.
The District Magistrate may be informe"d by his sub-
.ordinates that the building is not being used at all or is being
used partially for religious worship; the owner, on the other harid,
may assert that the building is being used exclusively for religious
worship.
Fairness, demands that the District Magistrate should
hear the owner of the accommodation sought to be requisitioned
by him, so that the owner may be able to satisfy him in any particular case that the building is being exclusively used for religious
worship. It seems to us that the first proviso 'strongly su_ggests the
implication of notice and hearing in the main part of s. 3.
The second proviso also seems to support that inference.
It
provides that no accommodation "which is in the actual possession of any person" shall be requisitioned
unless
the District
Magistrate is of opinion that suitable altern:itive accommodation
exists for his needs or has been provided to him. Here the District Magistrate has to consider two things : ( 1) the accommodation sought to be requisitioned is in tl!e actual possession of any
person; and (2) a· suitable alternative' accommodation exists- for
his needs and has been provided to him. If the accoqimodation
sought to be requisitioned is actually not occupied by any person,
it is not necessary to consider the seoond matter. But whether the
accommodation proposed to be requisitioned is in the actual
occupation of any person or not is a question of fact and cannot
satisfactorily be determined unless the person claiming to be
occupying it is given a hearing by the District Magistrate. So in
every case where the District Magistrate proposes to requisition
any accommodation, it will be just artd fair to hear at least the
owner of the accommodati-.,n for he may set up a claim that he is
actually occupying it.
It is necessary to bear in mind that the Act does not provide
for any appeal or revision from the order of the District Magistrate under s. 3.
The District Magistrate is constituted the plenary authority.
It seems reasonable to think that the legislature
intended that an order under s. 3 should be made after notice
and hearing, so that no unfairness is done to anyone.
The High Court rejected the argument of the appellant simply
on the ground that the order of requisition deprives the owner of
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M. G. AGARWAL v. DIST. MAGISTRATE (Dwivedi, !.)
615
the property of the use thereof for a temporary period. It is not
11asy to follow what the High Court meant when it said that it
was not necessary to follow "a detailed procedure." An elaborate
procedure like the one provided for in the Code of Civil Procedure
Should undoubtedly be not followed. The dimension of hearing
will vary according to the circumstances of each case. The barest
minimum, however, is a fair hearing. Notice should be given to
the person who will be affected by the order of requisitioning
asking him to show why his accommodation should not be requisitioned. He should be given reasonable time to file his reply
to the notice. In some cases it may b_e necessary to give him an
opportunity of producing his oral and documentary evidence. As
for instance, where he pleads that he needs the accommodation
for his own residence.
The High Court disposed of the point
without examining the scheme and setting of s. 3. In our view
the scheme and setting of s. 3 imply a notice and hearing to the
person who will be affected by the proposed requisitioning order.
Counsel for the District Magistrate ha~ submitted that the
District Magistrate acts in an administrative capacity under s. 3.
According to him, it is not necessary to hear the affected party in
an administrative proceeding. He has relied on Province of
Bombay v. Bhanji Munji and another(~) and Collector of Ako/a
The District Magistrate of Aligarh and others('), The State of
Bombay v. Bhanji Munji 11.nd another(') and Collector of Ako/a
and others v. Ramchandra and others('). In none of these cases
the issue of notice and hearinr, directly arose for consideration.
In the first case, certain property was requisitioned under s.
3 of the Bombay Land Requisition Ordinance, 1947, by an order
of the'Oovemment, dated February 6, 1948. The order was made
before the commencement of the Constitution. It was challenged
by a petition in the High Court of Bombay. The petitioner prayed for the issue of a writ of certiorari to quash the order. The
JJombay High Court issued the writ of certiorari. The argument
on behalf of the Government in this Court was that as the
Government was acting in an administrative capacity and not in
a judicial or quasi-judicial capacity, the writ of certiorari could
not be issued. This Court held that the act of requisitioning was
administrative in nature and not quasi-judicial.
The argument
that the existence of a public- purpose required judicial consideration was negatived. In the second case, the High Court held that
the decision of the District Magistrate that there existed a public
purpose and a particular accommodation was needed for that
purnose was final and could not be questioned in a court of law.
In the third case, an accommodation was requisitioned under the
(I) [1950] S. C. R. 621.
(2) A. !. R. 1952 Allahabad 520.
(3) [19551 1 S. C. R. 777.
(4) [1968] I S. C. R. 401.
616
SUPREME COURT REPORTS
.[1973] 2 S.C.R.
Bombay Land Requisition Act, 1948. It was held that it was for
the Government to decide whether there existed a public purpose
to justify the requisitioning of accommodation. In the last case,
this Court held that the expression "public purpose" was wide
enough to include a temporary as well as a durable purpose.
Section 5 of the Bombay Land Requisition Act, 1948 placed no
limitation on the competent authority as to what kind of purpose
would justify the exercise of power.
Counsel for the appellant has relied on A. K. Kraipak and
others v. Union of India('), Daud Ahmad v. The District
Magistrate, Allahabad and others(") and State of Punjab v. K.
R. Erry and Sobha11 Rai Mehta('). In A. K. Krai[Jak, certain
Government employees of the State of Jammu and Kashmir felt
aggrieved with the selection of persons for appointment to the
Indian Forest Service.
The selections were made solely on the
basis of the record of officers. Their suitability was not decided
by' oral or written examination, nor were they interviewed. A. K.
Ktaipak contended before this Court that the selections were bad
as they were made Without fol!owmg the principles Of
natural
justice. The contrary argument was that the principles of natural
justice would not apply to the administrative act of .selection of
officers for appointment to the Indian Forest Service. Hegde, J.
said that "the dividing line between an administrative power and
a quasi-judicial power is quite thin and is being ~radually .obliterated." At pages 465 and 466 of the report, the learned Judge
added : "With the increase of the power of the administrative
bodies it. has become necessary to provide guidelines for the just
exercise of their power. To prevent the abuse of that power and
to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such
powers.
In matters like these, public good is not advanced by
a ri\!id adherence to precedents.
New problems call for new
soh.μions." Assuming that the committee making selection of offiters for appointment to the Indian Forest Service was exercising
administrative power, the learned Judge said : "The aim of the
1 ules of natural justice is to secure iustice or to put it negatively
to prevent miscarriage of justice. These rules can ooerate only
in areas not covered by any law "<"Jlidlv made.
In other word~.
thev do not suoolant the law of the land but supolement it .... If
the. numose of the rules of natural justice is to prevent miscarriage.
one fails to see whv those rules should be made inaop!icable to
administrative· enauiries.
Often times it is not easy to draw the
line that demarcates administrative enauiries from judicial enquiries..
Enquiries which were considered administrative at one
time are now beim? considered as quasi-judicial
in character.
(i)(l(i70) 1 S. C. R. 457.
(2) A. T. R. 1972 S. C. 8%.
[1973] 2 S.C.R. 405.
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M. G. AGARWAL v. DIST. MAGISTRATE (Dwivedi, J.)
617
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Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries.
An unjust decision
in an administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry."
Jn K. R. Erry, this Court held that the pensionary right of. a
B superannuated Government Servant is 'property'
and that
his
pension cannot be reduced without giving him
a hearing even
though the relevant service rules do not expressly provide for a
hearing. Daud Ahmad is a direct authority for the point before
us.
There the Court was concerned with an order upder s. 3 of
the Act. Daud Ahmad was occupying a certain accommodation
of which he was the owner. The accommodation was requisition-
{;
ed by the District Magistrate without notice and hearing.
This
Court quashed the order of requisition for want of notice and
hearing.
One of us (A. N. Ray J.) said: "Th.e principle of
natural justice has been applicable to administrative enquiries or
quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occaD
sion the invocation of the principle of natural justice.
Deprivation of property affects rights of a person. If under .the Requisition Act the petitioner was to be deprived of the occupation of the
premises the District Magistrate had to hold an enquiry in order
to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide
alternative accommodation."
Counsel for the District Magi~Jrate has s\lbmittcd that Da11tl
Ahmad is distinguishable from the present case, for there the
Court was concerned witllinterpreting the second proviso to s. 3.
Daud Ahmad aJ1d K. R. Erry hold that in an enactment which
deprives a per,son of his property, there is necessarily implied the
F . pre-requisite of hearing.
These cases support our construction
!hat notice and hearing to the affected party is necessarily implied
in s. 3. It is not disputed on behalf of the District Magistrate that
the rcqu~sitioning order was ·made by him without giving notice
and hearing to the appellant. .So we hold that his order is illegal.
G
The appeal is allowed with costs.
The order of the District
Magistrate dated October 4, 1969 requisitioning the accommodation is quashed.
G.C.
Appeal allowed ..