PRABHABATI DEVI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution by Srimati Rani Prabhabati Devi arising out of an order, dated 29-11-1951, passed by the District Magistrate of Allahabad by which he requisitioned the newly constructed house situated behind bungalow No. 16. Thornhill Road and facing Clive Road, for the residence of Sri. L.D. Joshi, Member of the Allahabad University Enquiry Committee and Sri Raghunandan Joshi, Assistant Accountant General, Uttar Pradesh, purporting to act under Section 3, U. P. (Temporary) Accommodation Requisition Act, 1947. Briefly the facts are as follows:-

(2.) The applicant is a permanent resident of the province of Bihar. She is the widow of the late Raja of Banaili. She is aged about 65 years. About 10 years ago she became a widow. She bought house No. 21, Tagore Town, in Allahabad in April, 1943 so that she may pass her old age in this holy city. She states that from that time onwards she has been living in Allahabad. That house, however, got cracked and her Raj Engineer reported that it was risky to live in it. So on 9-2-1951, she sold it. On 16-2-1951, she purchased house No. 16, Thornhill Road, with a view to continue to reside at Allahabad, but that house had several tenants. She applied to the Rent Control and Eviction Officer for permission to evict those tenants, so that she may be able to continue to live here, but this was refused. To carry out her wish to reside at Allahabad she took steps to construct a new house in the compound of No. 16, Thornhill Road and she started the construction early in May last. That house is nearly complete now. Electricity has been laid out and sanitary fittings have been put in, but for want of sanction of the sanitary plans the bath room and lavatory are not connected with water and so the applicant personally has not been able to come and live in it. This house has been named by the lady as "Shri Radha Krishna Ji ka Mandir." One of the rooms in it contains a temple and it is alleged that contiguous to that room are two halls meant for meditation and religious discourses. It is asserted in the application, the allegations in which have been sworn in by an affidavit, that the applicant's staff is even at present occupying this building and the outhouses. It is said that the eventual intention of the applicant is to get possession of the main building for residential purposes and dedicate the new house to the deity installed in it. On 14-12-1951, the applicant received a copy of the requisition order, dated 29-11-1951, from the District Magistrate. She filed an objection to it and requested that she should be given a hearing before the final orders are passed upon the objection. She was not given a hearing and the learned District Magistrate upheld his order of requisition elated 29-11-1951, by his order dated 6-1-1952, It is contended that the order passed by the District Magistrate was illegal and ultra vires. On these facts the prayer is "that the record of the ease be called for and proceedings for requisition quashed and such suitable orders be passed as are fit and proper". The heading of the application is "Application under Article 226 of the Constitution of India for a writ of Certiorari and Mandamus."'

(3.) Sri Gopalji Mehrotra, learned standing counsel, has raised a preliminary objection that no writ of Certiorari can issue as the District Magistrate has acted in an administrative and not in a judicial or quasi-judicial capacity. He relies upon Province of Bombay v. Khushal Das S. Advani, A. I. R. 1950 S. C. 222. That was also a case in which certain premises had been requisitioned and it was held that the order passed by the Provincial Government was an administrative order and not a judicial one. Learned counsel for the petitioner distinguishes that case upon the ground that it was a case not under Art. 226 of the Constitution but under Section 45, Specific Relief Act. Be that as it may, the elements necessary to hold an order to be of a judicial or of a quasi-judicial nature do not exist in the present case. In that case it was held that