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. 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.
(3.) 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.;