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H.A. Sarkies and anr. Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2610 of 1962
Judge
Reported inAIR1966All458
ActsConstitution of India - Articles 19 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 11; Uttar Pradesh (Temporary) Accomodation Requisition Act, 1947 - Sections 3 and 8
AppellantH.A. Sarkies and anr.
RespondentDistrict Magistrate and anr.
Appellant AdvocateM.A. Ansari, Adv. for ;S.S. Bhatnagar and ;K.P. Chatterji, Advs.
Respondent AdvocateGopinath, Jr. Standing Counsel
DispositionPetition allowed
Excerpt:
(i) civil - res judicata - article 226 of constitution of india and section 11 of code of civil procedure, 1908 - doctrine of res judicata and rules of constructive res judicata are applicable to writs - it is not open to the petitioner to challenge the requisition by the respondents - provisions are not applicable to the cantonment areas - requisition was violative of fundamental right of petitioner and not for public purpose. (ii) requisition - sections 3 and 8 of u.p. temporary accommodation requisition act, 1947 - requisition for public purposes - residence of individual government officer - district magistrate has power to requisition property but has no power to nominate another officer to occupy it. (iii) release of requisitioned premises - section 8 of u.p. temporary.....orderk.b. asthana, j.1. by this petition under article 226 of the constitution the petitioners have challenged the right of the respondents to retain possession of a bungalow of which they are the owners and have prayed for a writ in the nature of mandamus commanding the respondents to restore possession of the accommodation to the petitioners. petitioner no. 1, h.a. sarkies is the son and the petitioner no. 2, mrs, gwen laing is the daughter of late mr. w.a. sarkies after whose death they have inherited the bungalow in question and are the owners thereof the district magistrate, meerut, is respondent no. 1 and one sri kailash bhan, special land acquisition officer, meerut, is respondent no. 2.2. the dispute in this petition centres round bungalow no. 74/a boundary road in meerut.....
Judgment:
ORDER

K.B. Asthana, J.

1. By this petition under Article 226 of the Constitution the petitioners have challenged the right of the respondents to retain possession of a Bungalow of which they are the owners and have prayed for a writ in the nature of Mandamus commanding the respondents to restore possession of the accommodation to the petitioners. Petitioner No. 1, H.A. Sarkies is the son and the petitioner No. 2, Mrs, Gwen Laing is the daughter of late Mr. W.A. Sarkies after whose death they have inherited the Bungalow in question and are the owners thereof The District Magistrate, Meerut, is respondent No. 1 and one Sri Kailash Bhan, Special Land Acquisition Officer, Meerut, is respondent No. 2.

2. The dispute in this petition centres round Bungalow No. 74/A Boundary Road in Meerut Cantonment (hereinafter described as 'the accommodation'). Late Mr. W.A. Sarkies, the father of the petitioners, was the owner of the accommodation. In the life time of the father of the petitioners, by an order, dated 19-9-1949, the District Magistrate, Meerut, in exercise of his powers under Section 3 of the U. P. (Temporary) Accommodation Requisition Act, 1947 (U. P. Act XXV of 1947), hereinafter described as 'the Requisition Act', requisitioned the accommodation, took possession of it and nominated R.S. Rastogi who was Superintendent of Jails posted at Meerut to occupy the same and pay rent as compensation to the owner. As appears from an affidavit sworn by J.S. Pande, Inspector Rent Control, when R.S. Rastogi vacated the accommodation, on 30-12-1950, R.K. Singh, Additional Commissioner posted at Meerut occupied the same as the nominee of the District Magistrate. The father of the petitioners made an attempt some time in January 1954 for the release of the accommodation. The Additional District Magistrate though was of the opinion that the need of the owner was genuine but directed that his request for release would be considered when the then nominee actually vacated it. When R.K. Singh vacated the accommodation it was not released in favour of the owner but the District Magistrate nominated another Government Officer to occupy the same.

The father of the petitioners died on 23-11-1954. He left a will in favour of his heirs who were petitioners Nos. 1 and 2 and two other daughters. By a mutual arrangement between the said heirs the accommodation fell to the share of the petitioners. On behalf of the petitioners several applications were filed for releasing the accommodation for their genuine need but all of them were rejected by the District Magistrate who continued to retain possession of it and went on nominating Government Officers who occupied the same and on the date when this petition was presented before this Court, respondent No. 2, Kailash Bhan was the occupant. Since then Kailash Bhan has left the accommodation and some other Government Officer is in occupation of it having been nominated by the District Magistrate. Thus, respondent No. 2, Kailash Bhan is no longer an interested party.

Having failed in their attempts to have the accommodation released, the petitioners approached this Court at an earlier stage by filing a writ petition under Article 226 of the Constitution which was registered as Civil Mics, Writ No. 1388 of 1956. In this petition the validity of the order of requisition was challenged. This petition was dismissed in this Court by a learned Single Judge on 12-12-1957 substantially on the ground that the order of requisition being a pre-constitution order its validity could not be ques-tioned on the ground that it violated funda-mental rights of the petitioners conferred by Part III of the Constitution. A special appeal filed by the petitioners from the judgment of the learned Single Judge was summarily dismissed,

Petitions No. 1 then on 26-4-1961 filed an application before the District Magistrate stating that Kazim Ali who was the then occupant was retiring and was going on leave and the accommodation would fall vacant and that it be released in his favour as he required it for his residence being an ill man suffering from Tuberculosis and for that reason had to live separately on medical advice from the family of his sister who had young children. The Rent Control and Eviction Officer informed petitioner No. 1 that his request would be considered when the accommodation actually fell vacant. However, when the accommodation actually fell vacant on Kazim Ali's leaving the same, the District Magistrate on 3-1-1962 nominated K.M. Dayal, Additional Commissioner, Meerut, to occupy the same. K.M. Dayal did not occupy the accommodation.

On 8-1-1962 the petitioner No. 1 again applied to the District Magistrate for releasing the accommodation. By a communication, dated 27-1-1962 from the Rent Control and Eviction Officer, Meerut, petitioner No. 1 was informed that the District Magistrate had considered the request for release and rejected the same. By an order, dated 30-1-1962 the Additional District Magistrate nominated Kailash Bhan; Special Land Acquisition Officer to occupy the accommodation. Then on 2-2-1962, the petitioners petitioned to the Government for the release of the accommodation. By a communication, dated 4-8-1962, received from a Sachin of the U. P. Government the petitioners were informed that the Government was unable to accede to the request of the petitioners. It was then that the present petition under Article 226 of the Constitution was presented to this Court by the petitioners.

3. The material part of the order of requisition, dated 19-9-1949 may now be quoted for convenience of reference.

'Whereas I, District Magistrate, Meerut, am satisfied that the accommodation mentioned in the schedule below is urgently required for a public purpose and whereas it is necessary to requisition such accommodation, I hereby requisition the accommodation under Section 3 of U. P. (Temp.) Accommodation Requisition Act, 1947 and direct that the possession thereof shall be delivered to me on the sixteenth day from the date of the service of the order on the owner of the accommodation whose name is mentioned in the schedule.'

It is on the above facts, mainly sworn by an affidavit, that the petitioners have approached this Court. It is alleged by the petitioners that the continued retention of possession by the District Magistrate and refusal to release the accommodation was not bona fide. The constitutional validity of the Requisition Order and the continued retention of possession has been questioned on the ground that these actions of the respondents were violative of the fundamental right of the petitioners. It is also alleged that the provisions of the Requisition Act were not applicable to the accommodation as it was situate in Cantonment area of Meerut city. Again the validity of the requisition order and the retention of possession of the accommodation by the District Magistrate has been questioned on the ground that these actions of the District Magistrate are not in accordance with the provisions of the Requisition Act itself. This is then the brief summary of the facts alleged and the grounds of attack raised by the petitioners. Two counter-affidavits have been filed on behalf of respondent No. 1 in this petition. One has been sworn by J.S. Pande, Inspector, and the other has been sworn by T.E. David, Senior Inspector.

4. In the counter-affidavit sworn by J.S. Pande, Inspector, Rent Control and Eviction Office, Meerut, the material facts alleged by the petitioners have been substantially accepted. It is asserted in the counter-affidavit that the case of the petitioners for release of the accommodation was fully considered and the need of the petitioners was not found to be genuine. It may be mentioned here that during the hearing of this petition Sri Gopi Nath, Junior Standing Counsel, took time for obtaining instructions in respect of certain matters which arose out of the argument addressed at the Bar. A supplementary counter-affidavit sworn by T.E. David, Senior Inspector, Rent Control, District Supply Office, Meerut, was then filed. In Para. 4 of this affidavit it is averred that under a Departmental Circular No. 4175/XXIX-B (D-4), dated 16th September 1947, under the signature of Sri M.M. Siddiqui, Deputy Secretary to Government, United Provinces, addressed to the Commissioner, Food and Civil Supplies, U. P., it was made clear by the Government that Section 3 of the United Provinces Accommodation Requisition Ordinance, 1947 and of the Act which replaced the said ordinance, be used by the District Magistrate for securing residential accommodation for public servants and the District Magistrate, Meerut, accordingly requisitioned the accommodation in question for the purpose of providing residential accommodation to Government Officers.

It is also asserted that ever since the accommodation in question was requisitioned, it has been allotted to Government servants only and that the need for requisition, that is, to provide residential accommodation to Government Officers still continues as there is great dearth of accommodation in Meerut it is also averred that when the petitioners applied for the de-requisition of the accommodation their need was considered and a local inspection was made by the Rent Control and Eviction Officer who heard the petitioners in person at length in support of their application relating to the release of the accommodation in dispute and by an order, dated 17-9-1964, the District Magistrate rejected their application. A copy of the order passed by Sri B.N. Tandon, District Magistrate, Meerut, dated 17-9-1964 has been annexed with the supplementary counter-affidavit which shows that he came to the conclusion that the need of the applicant owner, for bungalow No. 74/A was not genuine and, therefore, the application was rejected for de-requisition of the bungalow in question. By the same order the applicant was warned not to interfere in taking of the possession of the accommodation by the rightful nominee Sri M.H.K. Suri, Assistant Controller, Weights and Measures, Meerut.

5. A supplementary rejoining-affidavit in reply to the supplementary counter-affidavit has been sworn by Sri K.P. Chatterjee, Advocate, who is the legal adviser of the petitioners and looks after their property matters and does Pairvi on behalf of the petitioners. It is not necessary to mention those averments in this rejoinder-affidavit which are of argumentative nature. Suffice it to say that the only material allegation of fact which has been made is to the effect that enough number of other houses are available in Meerut and the continuous requisition of the petitioners' bungalow was mala fide.

6. It will appear from the narration of the above facts and circumstances that the respondent No. 1 asserts that the petitioners' bungalow was requisitioned for the purpose of accommodating Government Officers as there was dearth of accommodation in Meerut and that the continued retention of its possession was justified on the ground that there is still dearth of accommodation and the Government Officers are to be provided for. The other fact which emerges out is that the repeated requests for release of the accommodation made by the petitioners have been rejected on the ground that their need was not genuine. It is also clear that the accommodation has been under requisition now for a continuous period of about sixteen years and the latest nominee who has been asked to occupy the premises in question is M.H.K. Sun, Assistant Controller, Weights and Measures, Meerut. Another notable fact that emerges out is that a demand was made by the petitioners from the Government to hand over possession of the accommodation but it was refused on 4-8-1962.

7. Sri M.A. Ansari, holding the brief of Sri S.S. Bhatnagar, for the petitioners, raised the following contentions in support of the petition:--

1. Thai the provisions of Section 3 of the Requisition Act are void being violative of the fundamental rights of the petitioners conferred by Arts. 14 and 19 of the Constitution inasmuch as they leave an arbitrary and unguided power or discretion in the District Magistrate and that they do not provide for an opportunity to the owner of the accommodation to show cause against the proposed requisition.

2. That the provisions of Section 3 of the Requisition Act, assuming them to be valid, do not apply to the accommodation in question which is situate in Meerut Cantonment for only a law passed by the Central Legislature or Parliament could confer the power to requisition an accommodation in the Cantonment area

3. That the order of requisition was bad as it did not show for what purpose it was made.

4. That the requisition for accommodating individual Government Officers is not a public purpose and the requisition was bad.

5. That the requisition under the Act could only be made for accommodating and rehabilitating refugees or for catering to such of their needs as would come within the meaning of 'public purpose' and the requisition in question not being for that purpose or connected with that purpose was bad.

6. That the requisition contemplated under Section 3 of the Requisition Act could only be for duration of a limited period and the retention of possession for a long period, such as 14 or 15 years, would be unauthorised.

7. That assuming the requisition tor accommodating a Government Officer is for a 'public purpose', and it being disclosed by the affidavits that R.S. Rastogi, Superintendent Jails, was the first occupant, the requisition order should be read as one for the purpose of accommodating R.S. Rastogi and as soon as that Officer left and no longer needed the accommodation the requisition order exhausted itself and the possession ought to have been restored to the owners. The further retention of the possession and nomination of a series of Government Officers one after the other to occupy the same without passing a fresh order of requisition each time was illegal and unauthorised and in excess of the powers of the District Magistrate conferred under the Act.

8. That the requisition in question and the retention of possession was not bona fide as there were plenty of accommodations available in Meernt and further that the influx of refugees had long stopped

8. Sri Gopi Nath, learned Junior Standing Counsel, submitted that the points involved in the contentions raised by the teamed counsel for the petitioners cannot be re-agitated now as the decision of this Court in the earlier Civil Misc. Writ No. 1388 of 1956 operated as res judicata. It was pointed out that some of the points which have been raised in this petition were raised and decided against the petitioners in the previous petition and some other points which have been raised in the instant petition might and ought to have been raised in the earlier petition. The decision of Jagdish Sahai, J., in Civil Misc. Writ No. 1.388 of 1956 dated 12-12-1957 shows that the petition was dismissed on the following grounds;

(1) That the Provincial 1 legislature was competent to make the Act applicable to the Cantonment areas. Reliance was placed on the Full Bench decision of this Court in Smt. Bhagwati Devi v. Sardar B. Singh, 1955 All LJ 1.

(2) That the action having been taken on the order of requisition before the Constitution came into force the petition under Article 226 of the Constitution was not maintainable, and

(3) That the petitioner having acquiesced in the impugned order and had come to the Court after a period of about seven years the Court would not be justified in granting him any relief.

A Division Bench of this Court dismissed the Special Appeal taken from the order of Jagdish Sahai, J., in the earlier writ petition mainly for the reason that no right of the appellant was infringed subsequent to the coming into force of the Constitution. The validity of the requisition order was challenged in the earlier writ petition on the ground that it was not for a public purpose, but that question though not examined would be deemed to be decided.

9. Sri Ansari, for the petitioners, urged that the doctrine of res judicata could not be attracted to the instant case inasmuch as the attack on the action taken by the State is based on the plea that the action was prohibited under the law and it is open to the petitioners to show that the previous decision or this Court proceeded on a disregard of the constitutional provisions. It was further urged by learned counsel that the rule that a ground which might and ought to have been raised in a previous suit between the parties cannot be allowed to be raised in a subsequent suit between the same parties would not apply in the instant case as that rule of law is peculiar to Section II of the Code of Civil Procedure and is not a part of the general doctrine of res judicata, Alternatively it was submitted by Sri Ansari that the present writ petition is based on a fresh cause of action, namely, refusal of the respondent and the State Government to hand over possession to the petitioners by releasing the accommodation and it is open to this Court to 'examine in all its aspects the question whether the continued retention of possession by the respondent was authorised by law.

10. The learned counsel for the parties addressed before me arguments at some length on the question of the applicability of the general doctrine of res judicata and of the rules of constructive res judicata in the sphere of writ jurisdiction. But in view of certain decided cases of the Supreme Court to which my attention was drawn by the learned Junior Standing Counsel at the fag end of the arguments on this part of the case, I do not think I would be justified in embarking upon a discussion of this question, for I think the Supreme Court has clearly laid down the law that the doctrine of res judicata and the rules of constructive res judicata are applicable to writs under Article 226 of the Constitution. I, therefore, hold that it is not open to the petitioners to challenge the requisition by the respondent on the grounds that the provisions of the Act are not applicable to the Cantonment arras, that the order of requisition was violative of the fundamental right of the petitioners and that the requisition was not for a public purpose. However, I agree with the submissions oi the learned counsel for the petitioners that the present petition also being based on a new cause of action that is refusal of the demand to hand over possession which arose after the decision of the earlier writ petition, the validity of the retention of possession by the respondent can be examined by this Court. Thus the contentions Nos. 1, 2, 3 and 4 do not survive and are rejected as barred by res judicata.

11. Now, T proceed to examine how Far the remaining contentions viz., 5, 6, 7 and 8 can stand scrutiny and the continued retention of possession by the respondent sustained?

12. It would be recalled from the material facts narrated in the earlier part of this judgment that the petitioners have continuously been making efforts to have the accommodation released, but the District Magistrate refused to release the accommodation as he did not And that the need of the petitioners was genuine. Finally the petitioners made a demand from the Government itself by a petition bnt the Government by its communication dated 4th August, 1962, intimated to the petitioners that it was not possible to accept the prayer for release of the accommodation. The present writ petition was then presented before this Court on 6th September, 1962 praying for a mandamus commanding the respondent to restore possession of the accommodation to the petitioners. Tt is obvious that when the refusal was finally made by the Government for handing over possession of the accommodation to the petitioners on their demand, the petitioners had stood deprived of enjoyment of the possession of the accommodation owned by them for a period of about thirteen years and by the time the petition came up for decision before me another three years had elapsed. The question then is whether the provisions of the Requisition Act contemplate a continuous deprivation of possession of an owner in respect of the requisitioned accommodation for such a length of period or do they contemplate that such a deprivation can be only for a limited period, that is, a comparatively short duration?

18. Sri Ansari, for the petitioners, relied upon the long title and preamble to the Act which are as follows:

'AN ACT to provide, during a limited period, for powers to requisition accommodation.--Whereas by reason of shortage of accommodation in the United Provinces, which has become very acute due to the large influx of Refugees, it is expedient to provide, during a limited period, for powers to requisition; It is hereby enacted as follows:' On the basis of the preamble it was submitted by learned counsel, firstly that the power of requisition could only be exercised for the purpose of providing accommodation to refugees or to meet a situation or exigency arising out of influx of refugees and the requisition must be connected with any activity beneficial to the refugees and, secondly that in any case the power for requisitioning the accommodation for any public purpose conferred upon the District Magistrate under Section 3 of the Act would be circumscribed by the preamble and the requisition could only be for a limited period and not for an indefinite period.

14. I do not think that the learned counsel is right in his first submission that the requisition contemplated under the Act is only for the purpose of providing accommodation to the refugees or for fulfilling any purpose connected with the relief of refugees. The first part of the preamble describes the situation necessitating the making of the law for conferring the power of requisition because of the shortage of accommodation due to large influx of refugees. When Section 3 of the Act provides that the requisition can he for any public purpose, 1 do not find anything in the preamble which controls or qualifies the words any public purpose in that section so as to confine it only to a purpose connected with the rehabilitation of the refugees. In this connection Sri Ansari referred to certain observations made by Sapru, J. in the case of Mam Chandra v. District Magistrate of Aligarh, AIR 1952 All 520 in paragraph 10 of the report to the following effect:

'Actually the purpose for which the house is stated to the required is the rehabilitation of refugees and I can conceive of no purpose which can more properly be described as coming within the category of a public purpose that the rehabilitation of uprooted persons with whose misfortune it is impossible for a man with a heart not to sympathise. I can quite well appreciate how the rehabilitation of even a single individual refugee in pursuance of a general scheme or policy of rehabilitation of refugees can be a public purpose in the best sense of the term.'

I do not think that the above observation in any way can be construed as living a limited meaning to the words any public purpose occurring in Section 3 of the Act and exclude from it all other such purposes which fall within the category of public purpose but arc not directly connected with the rehabilitation of the refugees. In the instant case though the requisition order itself docs not mention the particular purposes for which the accommodation was being requisitioned but in a supplementary counter-affidavit it has been averred that the accommodation was requisitioned for providing accommodation to Government Officers posted at Meerut. Sri Ansari sought to argue that requisitioning an accommodation for an individual Government servant would not amount to requisitioning for a public purpose but T decline to go into that question as I am of the view that this question would be deemed to have been decided in the earlier writ petition where the requisition was challenged on the ground that it was not for a public purpose. 1 think that Section 8 of the Act confers upon the District Magistrate a power of requisitioning tor a public purpose even unconnected with the rehabilitation of refugees. There is thus no force in the argument that the requisition of the accommodation in question not being one for accommodating and rehabilitating refugees was without jurisdiction or without authortity of law.

15. But the second submission on this part of the case of Sri Ansari appears to me to have force. There is good authority for the proposition that aid can be taken from the preamble which denotes the policy and the object behind the Act, in order to control the otherwise wide language used in any section of the Act conferring executive powers and it will bo legitimate to construe the same as being confined in its ambit and exercisable to the extent and in a manner so as to fulfil the object. There is no doubt in my mind that on the authority of the decided cases the provisions of Section 3 of the Requisition Act, as they stand, would be ultra vires as the same vest an unregulated, unguided and arbitrary power in the District Magistrate for requisitioning any accommodation for any public purpose. There is no rule of guidance laid down channelising the exercise of the power. There is nothing in that section affording an opportunity to the persons affected by the requisition to show cause why the accommodation be not requisitioned. There is nothing in the section laying down the length of the period for which the accommodation would be retained in possession by the District Magistrate.

It appears that the Legislature left it to the Government by Section 17 of the Act to make rules to give effect to the purposes of the Act and the Legislature contemplated that the Government would make the necessary rules for working out the details. It is unfortunate that the Requisition Act has been applied for all these years without framing the proper rules. I had enquired from the learned Junior Standing Counsel during the course of the argument whether any rules have been framed under Section 17 of the Act and I was informed that no such rules have been framed. Though in the instant case it is not open to the petitioners to challenge the requisition order on the ground that Section 3 of the Act was violative of their fundamental right inasmuch as the requisition was made before the coming into force of the Constitution, but I have grave doubts on the constitutional validity of Section 3 of the Act and whether it survives Article 13 of the Constitution as the Government has not made any rules of guidance in regard to the unfettered exercise of powers conferred on the District Magistrate which on the language of the section is in the widest possible amplitude.

My attention was drawn to cases decided by this Court wherein constitutional validity of certain sections of U. P. (Temporary) Control of Rent and Eviction Act was considered and those sections were saved and it was held that the provisions of the impugned sections read with the relevant rules brought in the elements of reasonableness in the exercise of power by the District Magistrate inasmuch as the rules afforded an opportunity to the landlord before the order for allotment could be passed and also otherwise guided the exercise of that power. However, I am not called upon as far as the present writ petition is concerned to pronounce upon the constitutional validity of Section 3 of the Requisition Act. I am only concerned with the question whether read with the preamble can it be said that the requisition contemplated under Section 3 of the Act of any particular accommodation is for a period of limited duration and if so, what should be the extent of that limited duration?

16. There seems to be much tenability in the argument of Sri Ansari that if the provisions of Section 3 are not construed as laying down a limitation on the period of deprivation of possession then that period can extend to any length of time by extending the life of the Act itself by amendment as has been done by the Legislature and the requisition would then be for period unlimited. The learned Junior Standing Counsel contended that it is not open to the petitioners to raise any contention in regard to the validity or the propriety of the requisition order, and the petitioners cannot be heard to say that since the requisition order did not fix a period it is bad. Sri Ansari pointed out that his argument does not Involve an attack on the requisition order passed in the instant case but his argument is aimed at finding out the true meaning and construction of Section 3 of the Act and then to determine whether the order of requisition in question can be relied upon to sustain the continued retention of possession of the accommodation for a long period of about fourteen or fifteen years. The submission of the learned counsel is that if an accommodation can be requisitioned only for period of a limited duration under Section 3 of the Act then the order of requisition itself would be for a limited duration and the opposite party must release the accommodation and hand over possession to the interested party under Section 8 of the Requisition Act and cannot use that order as a foundation for continuous retention of possession for a period unlimited.

17. The submissions which Sri Ansari has made pose a problem of construction of Section 3 of the Act and I agree with Sri Ansari that the whole ambit of the exercise of power of requisition conferred upon the District Magistrate under Section 3 of the Act would be controlled by what is contained in the preamble. The scheme of the Act is that when the District Magistrate is of the opinion that it is necessary to do so then he can requisition any accommodation for any public purpose. The preamble says that it is expedient to provide, during a limited period, for powers to requisition accommodation. Sri Gopi Nath, learned Junior Standing Counsel, submitted that what those words mean is conferment of power to requisition during a limited period and it does not lay down that the requisition of a particular accommodation should itself be for a limited period, Sri Ansari controverted this by contending that if what the learned Junior Standing Counsel says is correct then Section 3 would continue to suffer from the vice of unconstitutionality as it would then amount to an unreasonable restriction on the freedom to hold and dispose of property. According to Sri Ansari the only manner in which Section 3 can properly be construed read with the preamble so as to make it reasonable and free of the vice of unconstitutionality would be to hold that the deprivation of possession of an owner of an accommodation was intended to be for a limited duration as a consequence of the requisition. Sri Ansari submitted that if the preamble is read as conferring a power for a limited duration as argued by learned Junior Standing Counsel then the Legislature would be guilty of a fraud on the Constitution and guilty of colourable exercise of power in taking recourse to the artifice of repeated amendment of Section 1 of the Act and go on changing the date of the expiry of the Act which in fact it has repeatedly done extending the life of the Act, professing it to be all the time temporary, till 30th September, 1969, thus converting the power which the preamble says is only being provided during a limited period into a power exercisable for a period unlimited.

18. It appears to me that the reasonable construction of the preamble ought to be that the words 'during a limited period' qualify the requisition of accommodation and not limiting the actual exercise of power to requisition. It is open to re-construct the sentence without changing the words and read it as follows:

It is expedient to provide for powers to requisition accommodation during a limited period.

Each accommodation is contemplated to be requisitioned for a period of limited duration. The Legislature it appears left it to the Government to frame rules to provide, inter alia, for the period for which the accommodation was to be requisitioned and to intimate the same in the order to the owner or the person concerned. Such a construction of the preamble and its controlling effect on the exercise of the power under Section 3 of the Act would make the working of the Act reasonable even in the absence of framing of rules. This construction which commends itself to me also does not derogate from achieving the object and purpose of the Act. The very word 'requisition' means a temporary deprivation of possession and differs From 'acquisition.' The preamble says that the power of requisition is being conferred on account of shortage of accommodation. A citizen who, in law, is entitled to enjoy in all lawful ways the accommodation as owner is not intended to be deprived of that enjoyment by a mere exercise of power of requisition for such a length of time so as to turn what was intended to be a temporary deprivation into a permanent deprivation. The working of the Act envisages that the convenience of all should be taken into consideration and for a short period a citizen is expected to part with the possession and enjoyment of any accommodation of which he is the owner in larger public interest and I cannot countenance that the powers under the Act were even Intended to be for the purpose of depriving a citizen of possession for such a long length of time as may appear to be unreasonable amounting to a permanent deprivation for all practical purposes though not in the strict legal sense. Whatever may be the period which] would answer to the phrase 'during a limited period' certainly a period of fifteen or sixteen years cannot be covered by that phrase.

Section 3 of the Requisition Act also intends that the order of requisition ought to ex facie show the particular purpose for which the accommodation is to be used after requisitioning it and also the period for which it would continue. As already observed above though it has not been done in the present case but since the affidavit on behalf of the State reveals that it was requisitioned initially for accommodating a Government servant, namely, R.S. Rastogi, Superintendent Jails, I would be justified in taking the view as if that was the purpose writ large in the requisition order. It would be assumed then that the requisition would be for a limited duration as R.S. Rastogi was transferable from Meerut in the normal course of two or three years at the most. When that contingency happened. R.S. Rastogi as a Government servant would no longer be in need of the accommodation and the purpose of requisition would be fulfilled.

19. The question then arises whether the District Magistrate can nominate another Government Officer as occupant on the pretext that he had requisitioned the accommodation generally for accommodating Government servants posted at Meerut and the purpose of requisition remained unfulfilled? I do not think the District Magistrate can justifiably claim any such power for I have already held above that it would be read into the requisition order when initially made that the accommodation was requisitioned for accommodating R.S. Rastogi, Superintendent Jails, that order, therefore, cannot be made a foundation for accommodating another Government servant posted at Meerut. It is obvious if this was not so then the requisition would turn out to be for an unlimited duration for it is presumed that all classes of Government Officers would be continued to be posted at Meerut so long as the Government employing them lasts and there is no reason to assume that the Government would not last for more than the whole lifetime of the owner of the accommodation. In the view which I have expressed above the requisition order read with the averments in the counter-affidavit filed on behalf of the State, answers both the requirements, that is, the particular purpose for which the accommodation was requisitioned and that for a limited duration.

20. The next question that arises is whether the opposite parties were justified in retaining possession of the accommodation after it was no longer required for R.S. Rastogi. In this connection my attention was drawn to a decision of the Supreme Court in the case of Union of India v. Ram Kanwar, AIR 1962 SC 247 wherein a property requisitioned under Rule 75-A of the Defence of India Rules, 1939, and continued requisitioned under the Requisitioning and Acquisition of Immovable Property Act, 1952, in exercise of powers almost analogous to the powers under the Requisition Act in the instant case was ordered to be released after the purpose for which it was being used ceased to exist. In the instant case I have held that the requisition was made for accommodating R.S. Rastogi, Superintendent Jails, though it is not expressly mentioned in the requisition order but it would be read therein as if written.

21. I am inclined to take the view that on the facts and circumstances of the instant case the requisition for the first time having been made for accommodating a Government Officer and in this case for R.S. Rastogi, Superintendent Jails, as soon as that Officer was transferred or was no longer in need of that accommodation the requisition order exhausted itself and under Section 8 of the Act the possession of the accommodation ought to have been restored to the petitioners. There is no warrant under the Requisition Act conferring a power on District Magistrate to go on nominating occupants one after the other and asking them to pay compensation in the form of rent direct to the petitioners. Ever since the first officer left, it appears to me, the retention of the possession without passing any fresh orders of requisition would be without the authority of law. The first officer left after the Constitution had come into force and as soon as the second officer was put in possession, the father of the petitioners applied for release and after whose death the petitioners have been making repeated efforts to have the accommodation released. It cannot be said in these circumstances that the petitioners acquiesced in the action of the District Magistrate or the State Government. Finally the petitioners applied to the Government itself by petition for releasing the accommodation, having failed to get redress from the local authorities. The State Government in its turn also declined in August, 1962 to release the accommodation and soon thereafter the present proceedings were instituted praying for a mandamus against the opposite parties for handing over possession.

22. The matter can be viewed from another angle also. Unless any rule of law bars an action by a citizen to be brought before a court of law to seek redress against an unauthorised action of the State or of any of its instrumentalities it is always open to a citizen to approach a competent court. To me it appears that even if a citizen does not protest against the unauthorised act at the earliest and allows his property being used at the directions of the Governmental authorities though unauthorisedly and he bears with it for some time as a quiet and peace living citizen, it would be unfair to penalise him and refuse redress for the simple reason that he did not approach the Court earlier. The State may make a law and confer powers on its officers to take action, such as requisitioning of property for public purpose, but in the exercise thereof the Officers do not comply with the formalities required by law and take possession of the property and use it for a public purpose, a citizen who is the owner of that property even knowing the irregularities and illegalities may not like in the interest of public to challenge the action but circumstances may change and if he feels the need of taking possession of that property he may approach the officer concerned for restoration of possession and if he refuses then to approach the court. I do not think that in such a situation the principles of acquiescence and estoppel will be attracted for no representation is involved in such a conduct by the citizen so as to engender a belief in the Government of having any right or title. Moreover refusal on each occasion by the respondent to release the accommodation and hand over possession to the petitioners would give a fresh cause of action to the petitioners and so far as the facts and circumstances of the instant case are concerned, I am not inclined that I should throw out the petition simply on the ground that the petitioners had come to Court after great delay assuming that they could have come earlier.

23. Learned Junior Standing Counsel then an interesting argument. He submitted that when the Constitution came into force on 26th January, 1950 the father of the petitioners had no right to the possession of the accommodation and to hold it as he stood deprived of that right in 1949 when the requisition order was passed. Reliance was placed on certain observations of the learned Judges of the Supreme Court in the case of State of Bombay v. Bhanji Munji, AIR 1955 SC 41. It was then submitted that whatever the petitioners got from their father was only 'a husk of title', so to say, benefit of any right to hold and retain possession. The argument so made by learned junior Standing Counsel is ingenuous but devoid of substance. In the case of AIR 1955 SC 41 (supra) the Supreme Court was concerned with the question whether the petitioners could challenge the validity of an order of requisition passed before the Constitution and it was in that connection that the observations relied upon by the learned Junior Standing Counsel were made. I do not think that the Supreme Court was laying down the law that the owner of the accommodation once for all will be denuded of the right to hold and possess the accommodation for the reason that the right which he had was merely 'the husk of title.' There is no such implication in the decision of the Supreme Court in the case of AIR 1955 SC 41 (supra) as contended by the learned Junior Standing Counsel. It would be seen that the case of Bhanji Munji decided by the Supreme Court is one of the long line of cases decided by it laying down the law that an order passed before the Constitution came into force, when passed being a valid order its validity could not be tested for striking it down on the basis of infringement of fundamental rights which were not in existence at the time when the impugned order was passed. The Supreme Court did not lay down any law that once for all a citizen would stand deprived of that right. Rut so far as the instant case is concerned as soon as R.S. Rastogi vacated the accommodation and that happened when the Constitution had come into force. The petitioner's father and thereafter the petitioners each time when the accommodation was refused to be released in their favour were deprived of their right to hold and possess which was a right vested in them and I fail to see why can they not now complain that their fundamental right to hold their property has been infringed because the original order of requisition was violative of that right but because of the unauthorised retention of possession after the Constitution had come into force particularly when according to Section 8 of the Requisition Act itself they had a right to be restored to possession and they were deprived of it. I also find in the instant case an element of the respondent's exceeding his power conferred by the Requisition Act in continuously retaining the possession of the accommodation. Even if it be held that the provisions of the Requisition Act are valid and the orders passed thereunder were also validly passed and those orders cannot be challenged as being violative of Article 19, nonetheless the continued retention of possession can be challenged on the ground that it exceeds the power conferred under the Act. I thus do not find any substance in the argument of the learned Junior Standing Counsel that the petitioners having no vested right to hold and retain possession of the accommodation as owners have no right to maintain this petition.

24. It was next urged by the learned Junior Standing Counsel that Section 8 of the Requisition Act does not confer any right on the petitioners to have the accommodation released from requisition and they are not entitled to approach this Court under Article 226 of the Constitution for any direction or writ commanding the respondents to hand over possession of the accommodation. Here again a difficulty in the working of the provisions of the Act is brought out. Section 8 of the Act by itself does not say anything about the right of the owner to apply for release, the time or the circumstance in which the release would be made and who will take a decision and form an opinion in this respect. But one thing is very clear that whenever the requisitioned accommodation is to be released, the District Magistrate shall release it in favour of the person from whom it was requisitioned. It is obvious that what is meant by Section 8 is that when the purpose of requisition is fulfilled which as held by me is for a limited period in duration, the accommodation automatically falls to be released and in that eventuality the District Magistrate shall release it in favour of the person from whom it was requisitioned and shall hand over possession. The Government would have done better bad it framed rules concerning Section 8. To my mind there is implicit in the provisions of Section 8, as they stand, that the owner of the accommodation from whom it was requisitioned is entitled to have the release order made in his Favour and the District Magistrate is under a duty to do so and hand over possession. Once that be the position then it is also implicit in those provisions that the owner or the person from whom the accommodation was requisitioned is entitled to make an application to the District Magistrate in this regard. This contention of the learned Junior Standing Counsel, therefore, has no tenability.

25. The last contention of the learned Junior Standing Counsel was that any writ or direction issued by this Court for handing over possession would be infruotuous as the present occupant of the accommodation is not a party to this petition and Kishan Bhan who was impleaded as respondent No. 2 having left the accommodation another Officer who has come in his place would not be bound by the direction. This contention of the learned Junior Standing Counsel is devoid of all substance. On his own showing the various Government Officers who at one time or the other occupied the accommodation were merely the nominees of the District Magistrate. They did not have any separate or distinct legal right in the accommodation. They were the creatures of the District Magistrate so to say. It is the District Magistrate who requisitioned the accommodation and took possession. It will be the District Magistrate now who will hand over possession back and not his nominee who happened to be its occupant. The writ or direction given to the District Magistrate, respondent No. 1, would amply meet the requirements of law and the petitioners would get an effective relief.

26. As a result of the discussion above thecontention No. 5 raised on behalf of the petitioners is rejected. Contentions Nos. 6 and 7raised on behalf of the petitioners are foundtenable and are accepted. It is not necessaryto consider contention No. (sic) raised on behalfof the petitioners as the (sic)toners will beentitled to the required reli(sic)rayed for evenif that contention is not discussed.

27. For the reasons given above this petition succeeds. Let a writ in the nature ofMandamus issue commanding the DistrictMagistrate of Meerut to hand over vacant possession of Bungalow No. 74-A, Boundary Road,Meerut, to the petitioners forthwith. The petitioners would be entitled to their costs fromrespondent No. 1.


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