Satish Chandra, J. - (1.) THIS petition u/Art. 226 of the Constitution prays that the order dated 11 -7 -1967, requisitioning the petitioner's house be quashed. The petition relates to house No. 6 -D, Beli Road, Allahabad of which the petitioner is the owner. The petitioner appears to have let it out on rent. He applied for its release under the UP Rent Control and Eviction Act, but that application was rejected on 24 -5 -1963. On 31 -5 -1963 the house was requisitioned for providing accommodation to two officials of the State Government, one was Sri V.C. Misra, Deputy Collector of Allahabad, and the other was Sri B.K. Misra, Assistant Commissioner for Linguistic Minorities in India, at Allahabad. The petitioner challenged the validity of this order by a Writ Petition No. 2115 of 1963. This petition came up for hearing on 15 -9 -1966, before a Bench of this Court. At the hearing the learned counsel appearing for the authorities stated that the purpose of the requisition having exhausted, the property will now be released u/s. 8 of the UP Temporary Accommodation Requisition Act, 1947. On this statement the writ petition was dismissed as having become infructuous. Thereafter, on 1 -10 -1966, the District Magistrate, Allahabad passed an order releasing the house in dispute from requisition with effect from 10 -10 -1966 and directing that the possession of the house be delivered to the owner, i.e., the petitioner. The actual possession of only one portion of the house appears to have been delivered to the owner, because the other portion was still being occupied by the wife of Sri B.K. Misra. The petitioner made efforts to get possession of the other portion also. He approached the District Magistrate, who expressed his helplessness. He applied for police help. Ultimately on 26 -6 -1967 Mrs. B.K. Misra left the house and the petitioner took possession of the other portion as well. On or about 11 -7 -1967 the petitioner addressed a letter to the District Magistrate stating that he has taken possession of the house after evicting the family of Sri B.K. Misra. He complained that during the period of requisition no compensation was paid to him. The house was badly damaged by the occupants living under the order of requisition, putting the petitioner to heavy pecuniary loss. He indicated to the District Magistrate, that he will take appropriate legal action for the recovery of the damages. The same day the District Magistrate passed the impugned order requisitioning the entire house u/s. 3 of the UP (Temporary) Accommodation Requisition Act, 1947, for the residence of a Judge of this Court.
(2.) THIS order has been challenged principally on the ground that the order has been passed in violation of the second proviso to S. 3 of the Act, because the petitioner was in possession of the house. The District Magistrate did not provide an alternative accommodation to the petitioner nor gave a finding that an alternative accommodation exists for his needs. S. 3 of the Act entitles a District Magistrate to requisition any accommodation for any public purpose. Under the first proviso no building or part of a building exclusively used for religious worship can be requisitioned, The second proviso reads as follows: 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 petitioner's contention that he was in actual possession of the house ever since it was released has been seriously contested on behalf of the respondents. The case of the respondents is that the petitioner was not in occupation of the house at all. He continued to live in his old house at Colonelganj, Allahabad. He never shifted to the house in dispute at Beli Road. It is further submitted that the question whether the accommodation was in actual occupation of any person was determinable to the subjective satisfaction of the District Magistrate alone. It is not a justiciable issue and cannot be adjudicated in a court. A reading of the proviso shows that the power to requisition an accommodation which is in the actual occupation of any person arises only when the District Magistrate forms an opinion that suitable alternative accommodation exists for his needs or has been provided to him. The question of alternative accommodation has been left to the subjective satisfaction of the District Magistrate. The question whether the accommodation was in the actual occupation of any person does not appear to be confined to the subjective opinion of the District Magistrate. That situation has to exist in fact and if disputed, has to be established objectively. This position seems to be clear from the decision of a Division Bench of this Court in Sm. Prabhabati Devi v. District Magistrate, Allahabad and another ( : 1952 AWR 241) where the question whether the petitioner was in actual occupation was gone into and adjudicated upon.
(3.) IN this connection another aspect which requires consideration is the sense in which the phrase "actual occupation of any person" has been used in the second proviso to S. 3. In Prabhabati Devi's case (1) the Bench observed that occupation is just the same as possession. If the two elements of possession, namely, animus and corpus are established, possession or occupation is established. In the present case it has not been disputed that the petitioner had the animus to possess this property. The order of the District Magistrate specifically directed that the possession of the house be given to the petitioner. The letter sent by the petitioner to the District Magistrate on 11 -7 -1967 complaining of very many things specifically stated that he is in possession of the house. The animus to possess is present in this case. There is no suggestion that any one else was in occupation of the house after it was released. There is no suggestion that the house was remaining uncared for absolutely. The possession which the second proviso to S. 3 requires to be in existence so as to attract the need for providing alternative accommodation, is not that the owner must dwell in the accommodation as his home. In the case of Smt. Prabhabati Devi referred to above the owner built a house a new. It had not become completely fit for occupation. The building was in charge of a servant when the order of requisition was passed. It was held that the presence of the servant was the occupation of the owner. The fact that the family members of the owner were not actually living in the house did not mean that they were not in occupation thereof. It was observed by the Bench that the fact that no ration cards had been issued from the new house is hardly of any importance. The Bench further observed that the essential fact remains that the house was not found vacant. The case of the petitioner that he along with his family had shifted to his house after June, 1967, may or may not be strictly correct, but it cannot be denied that the petitioner was in possession as well as in occupation of the house. He has alleged that after Mrs. Misra vacated the house in June, 1967, he found that it had been extensively damaged. The petitioner spent a lot of money on repairs and replacement of fixtures and fittings. All this could not be done without his presence in the house. There is no specific denial; in the counter affidavit these averments have not been specifically dealt with. There is merely a general denial. If after the release of a house from requisition and delivery of possession to the owner, the owner spends sometime in its repairs and renovation, it cannot be said that he is not in possession or occupation of the house during that period. He is in seisin of the building as well as legally in possession of it. In such a situation the District Magistrate has to form an opinion whether suitable alternative accommodation either exists or has been provided to him.;