Judgment S. M. DAUD, J. ( 1 ) THIS petition under Article 226 of the constitution takes exception to documents marked Exs. R and S and the alleged deprivation of petitioner from a right to occupy flat No. G, third floor of what was formerly known as Fazalbhoy House and is now known as Kakad House. ( 2 ) THE building afore-mentioned consisting of five floors formerly belonged to the Trust Settlement of Bai Sherbanoo wife of Mr. Abdulla Fazalbhoy. That Trust is presently represented by respondents 4 to 6. The Trust owned the building till the year 1981 when the said building was conveyed to respondent No. 7. ( 3 ) AFTER outbreak of the second world war the then Government enacted for amongst other things the better and more efficient prosecution of the war legislation in the shape of the Defence of India Act, 1939. Rules were framed (under this Act to enable requisitioning of property) and one such rule was that bearing 75-A. The said Rule reads as under:- (1) If in the opinion of the Central government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, Public safety, the maintenance of public order or the efficient prosecution of the war, of for maintaining supplies and services essentials to the life of the community, that Government may by order in writing requisition any property, moveable or immoveable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning. . . (5) The Central Government or the Provincial Government may, with a view to requisition any property under sub-rule (1) or determining the compensation payable under sub-rule (4) by order. (a ). . . . . (b) direct that the owner occupier or person in possession of the property shall not without the permission of Government dispose of it. . . till the expiry of such period as may be specified, it the order. " acting on the basis of the power conferred by the above rule, the Commissioner of Police, Bombay issued an order on 25th of June, 1942. The said order is at Ex. A and the relevant portion therefrom reads as follows: ". . . . . . till the expiry of such period as may be specified, it the order. " acting on the basis of the power conferred by the above rule, the Commissioner of Police, Bombay issued an order on 25th of June, 1942. The said order is at Ex. A and the relevant portion therefrom reads as follows: ". . . . I Commissioner of Police, Bombay, do hereby requisition the said property and direct that possession of the said property be delivered to the Superintendent of Police. . . on the 1st day of August, 1942 subject to the following conditions:- (1) The Property shall be continued in requisitioned during the period of the present war and six months thereafter or for such shorter period as may be specified by me. (2) The Property shall be restored to the owner as far as possible in the same condition in which it was on the date on which the Superintendent of Police, A Division, was put in possession of it. (3) Such rent as is paid by the present occupants of the above property shall be paid to the owner of the property as compensation. "the requisitioning order pertained to eight flats of Fazalbhoy House, four on the second floor and the remaining on the third floor-the latter set including the petition flat G. Petitioner was one of the occupants of the requisitioned flats and in common with those facing the same predicament as him, on 2nd July, 1942 addressed a letter to the Trust. This is to be found in the files of the commissioner of Police who is the first respondent to this petition. The letter speaks of a notice received from the Trust demanding vacant possession of the flats pursuant to the requisition order, the difficulties this unexpected event had caused and the hardship encountered by people requiring suitable accommodation in getting the same during the monsoon months. The letter ends with a request that the Trust grant them at least three months time to vacate. The Trust on August 1, 1942 addressed a letter to the commissioner of Police intimating that the tenants had been noticed vis-a-vis the order of requisition and that they had vacated the flats in their occupation. The tenants having gone out the requisitioned flats came into the occupation of the first respondent who started allotting it to officers of the Bombay Police. The tenants having gone out the requisitioned flats came into the occupation of the first respondent who started allotting it to officers of the Bombay Police. In the meantime, the second world war had ended and Government had armed itself with legislation to continue to exercise the requisitioning power. For that purpose Act No. XVII of 1947 was passed and the same was called the Requisitioned Land (Continuance of Powers) Act, 1947. Section 3 of this 1947 Act provided for continuance of requisitions made under the ordinance preceding the Act as also the Defence of India Act, 1939 and the Rules made thereunder, until the expiry of the Act - the latter Act being Act No. XVII of 1947. Section 4 of the Act had four sub-sections two of which viz the first and second, were phrased as follows:- " (1) where any requisitioned land is to be released from requisition, the appropriate Government may, after making such inquiry, if any, as considers necessary, specify by order in writing the person to whom possession of the land shall be given. (2) The delivery of possession of the requisitioned land to the person specified in an order made under sub-section (1) shall be a full discharge of the government from all liability in respect of such delivery, but shall not prejudice any rights in respect of the land which any other person may be entitled by due process of law to enforce against the person to whom possession of the land is so delivered. "came 1948 and was enacted the Bombay Land Requisition Act, 1948-hereinafter referred to as the "blr Act". Briefly stated, this Act provided for the continuance of all existing requisitions and section 9 thereof had seven sub-sections two of which viz. third and fourth read as follows:- " (3) When any land is to be released from requisition, the State Government may, after making such inquiry, if any, as it deems fit, specify by order in writing the person to who, possession of the land shall be given. third and fourth read as follows:- " (3) When any land is to be released from requisition, the State Government may, after making such inquiry, if any, as it deems fit, specify by order in writing the person to who, possession of the land shall be given. (4) The delivery of possession of the land to the person specified in an order made under section (3) shall be a full discharge of the State Government from all liability in respect of such delivery but shall not prejudice any rights in respect of the land which any other person may be entitled by due process of law to enforce against the person to whom possession of the land is so delivered. " ( 4 ) PETITIONER was not reconciled to the loss of the flat. He kept on writing to the Trust and all manner of Officials including the Commissioner of Police and the Collector of Bombay. Ex. B. dated 26-7-1946 is a letter addressed to the Trustees saying that he had learnt of requisitioned flats being returned to landlords, and if that be so, he was entitled to the return of flat G. Ex C. dated 6-2-1947 again addressed to the Trustees spoke of the difficulties of the petitioner because of the absence of his family in Sind where he had been compelled to send them consequent to the loss of the flat. He urged the Trustees to write to the Government and expedite the de-requisitioning of the flat so that he could re-occupy flat G. Ex. D dated 30-7-1945 is a reply from the Trustees letting the petitioner know that far from the de-requisitioning being in sight, Government had advised them that there would be no de-requisitioning for quite some time. On February 17, 1947 came Ex. E from the Trustees saying that they had no advice from the Government about the intention to de-requisitioning the flat. Ex. F is letter dated 21-3-1947 addressed by the petitioner to the Collector of Bombay with copies endorsed to the Police Commissioner and Under Secretary of the Finance Department. This letter repeated petitioners plight in the absence of his family which family could not come unless he got back possession of Flat G. So far as the Collector was concerned he had on April 9, 1947 replied vide Ex. This letter repeated petitioners plight in the absence of his family which family could not come unless he got back possession of Flat G. So far as the Collector was concerned he had on April 9, 1947 replied vide Ex. G telling the petitioner that he could do nothing in the matter as the requisitioning complained of was at the instance of the Commissioner of Police. Petitioner therefore on 10th of April, 1947 addressed Ex. H. to the Commissioner of Police requesting that the flat be returned to him as he was seriously inconvenienced by the absence of his family. Copies of this letter were endorsed to the Collector, the Home Minister and one Mr. Manu Subedar. The Commissioner of Police on 22nd April, 1947 deigned to reply to the petitioner saying that he very much regretted his inability to comply with the request of the petitioner to de-requisition the flat and return possession thereof to him. This reply at Ex. I is important for it shows that the Commissioner of Police was aware of the claims being made by the petitioner; firstly; that he was a tenant of the premises and secondly that he was entitled to re-occupy the flat on the same being de-requisitioned. On 30th June, 1947 petitioner addressed the Home Minister repeating the prayer that the flat be de-requisitioned and handed over to him. The Government in reply vide Ex. L referred to some communication of an earlier date. ( 5 ) IN the meantime, the respondents were making arrangements amongst themselves to deprive the petitioner of his right. The flat was in the occupation of the 8th respondent as an allottee and he was on the verge of retirement. The Trust for reasons of its own was not averse to the ditching of petitioner. Respondent No. 8 was naturally interested in securing accommodation in Bombay after his active service was over. There were people in the Government who were bent on helping the 8th respondent and the wheels of the Government which normally move very slowly suddenly took on a speed not commonly associated with the Government functioning. On 30th December, 1972, the Trust addressed the Commissioner of Police lamenting the delay in the de-requisitioning of the flats. The last two paragraphs of this letter which is at Ex. On 30th December, 1972, the Trust addressed the Commissioner of Police lamenting the delay in the de-requisitioning of the flats. The last two paragraphs of this letter which is at Ex. 1 to respondent No. 8s affidavit in reply dated 11-7-1990 read thus:- "shri J. V. Pai has requested us to accept him as our contractual tenant in respect of the said flat in the event of the de-requisition. Since we learn that you are seriously considering giving up the above flats, we shall have no objection to accept Shri J. V. Pai as our contractual tenant of the flat at present in his occupation. "on February 12, 1973 the Commissioner of Police addressed a letter which is at Ex. R to the petition to the Trust and it recited thus:- "government have released the flat occupied by Shri J. V. Pai, Assistant Commissioner of Police, Special Branch I, C. I. D. , in his favour with effect from 8-2-1973. You are therefore, requested to accept Shri J. V. Pai as your tenant in respect of flat No. G, III floor. . . . . and collect rent from him. "the lynx-eyed Fazalbhoys noticed the flaw in Ex. R and advised the Commissioner of Police to make amends. The same day they sent letter which is at Ex. 2 to the affidavit in reply of the 8th respondent. The Commissioner of Police was told:- "we are advised that de-requisition cannot be in favour of any person, as you purport to do by your letter under reply. In fact the requisition order itself says "the property shall be restored to the owner. "we have received from Mr. J. V. Pai on your behalf possession of the said flat in pursuance of your above letter received by us on the 12th instant and have accepted him as our contractual tenant from that date. Please send us the compensation of the flat due upto 8-2-73 on receipt of this letter. " the same day the Trust addressed a letter to the 8th respondent which is at Ex. 3 to the affidavit in reply of that person. The letter makes interesting reading and amongst other recitals contains the following:- "we have written to the Commissioner of Police that a flat cannot be derequisitioned in favour of any person and that the requisitioning order itself states that the flat shall be restored to the owner. 3 to the affidavit in reply of that person. The letter makes interesting reading and amongst other recitals contains the following:- "we have written to the Commissioner of Police that a flat cannot be derequisitioned in favour of any person and that the requisitioning order itself states that the flat shall be restored to the owner. You have handed over to us possession of the above flat on behalf of Commissioner of Police in pursuance of his above letter and as requested by you we have accepted you as our contractual tenant of the flat with effect from 12-2-1973 on your agreeing to observe and perform the terms and conditions of the tenancy as stated on the reverse of the rent bill. " ( 6 ) AFTER moving out of Fazalbhoy House petitioner went to reside in Balaram Chambers adjacent to which is Chemox House in which House he has a shop. The exact location of Balaram Chambers, Chemox House and Fazalbhoy House is brought out with sufficient clarity in Ex. 4, being an annexure to respondent No. 8s affidavit dated 11-7-1990. ( 7 ) THE Trust had been magnanimous to respondent No. 8 but it could not forgo its right vis-a-vis, the other flats. Therefore it filed a writ petition against the Police Commissioner and the State bearing Misc. Petition No. 274 of 1979. The Trustees got their pound of flesh and the judgment to that effect is reported in A. I. R. 1982 Bombay 135. (Yusuf Ali Fazalbhoy v. M. S. Kasbekar) Para 26 of the judgment says thus:- "in the circumstances, if I had to decide whether all or any of the four flats must be deemed to be free of requisition by the reason of the requisition order having lapsed and if the Government is bound to hand over possession thereof to the petitioner, I would hold that the government was bound to hand over possession of the three flats, viz flats G and H on the 2nd floor and flat H on the 3rd floor but not flat 3-E. However, in the view that I have taken on the question of law, all the four flats are wrongly continued to be treated by respondent 1 as under requisition and the respondents are bound to hand over the possession of all the four flats to the petitioner. "the flat G afore-mentioned does not cover flat G figuring in this case. ( 8 ) PETITIONER woke up to what was going on fairly late in the day and para 10 of the petition is to the following effect:- "on making enquiries the petitioner has now learnt that by a letter dated 12th February, 1973, the 1st respondent had purported to de-requisition and purported to release the said flat in favour of the 8th respondent and had wrongfully and illegally asked the respondents Nos. 4, 5 and 6 to accept the 8th respondent as their tenant in respect of the said flat. The petitioner also learnt that the respondents Nos. 4, 5 and 6 had filed a Misc. Petition being Misc. Petition No. 274 of 1979 in this Honble Court challenging the continued requisition of some of the other flats in the said Fazalbhoy House. The said letter dated 12th February, 1973 was annexed as Ex. D to the said petition. A copy of the said letter dated 12th February, 1973 is annexed hereto and marked Ex. R. "on 11-7-1983 petitioner addressed Ex. N to the Commissioner of Police again asking for a release of flat G as the same was badly needed by him. The request was repeated on 29-7-1983 vide Ex. O. His letter addressed to the Trustees is at Ex. P dated 29-7-1983 in which he complained of a letter sent by him to the Trust having been returned as "refused". For the first time on 5-8-1983 vide Ex. Q the Trustees came out with a disclosure worded thus:- ". . . WE are no longer owners of the building known as Fazalbhoy House which is owned by Kakad Housing Corporation since 1981. At the time of the sale the tenant of the above flat premises was one Mr. J. V. Pai. As such we do not recognise any rights of yours as alleged or otherwise and deny the same. "significantly, Ex. Q says not a word about what transaction had led to the creation of the rights in favour of the 8th respondent and by whom. In March 1984 petitioner came to this Court with the present petition. Shortly stated, his cases is that the tenancy rights vested in him did not stand extinguished because of the order of requisition made on 25-6-1942 and continued thereafter. The order of de-requisition at Ex. In March 1984 petitioner came to this Court with the present petition. Shortly stated, his cases is that the tenancy rights vested in him did not stand extinguished because of the order of requisition made on 25-6-1942 and continued thereafter. The order of de-requisition at Ex. R was a fraud on the statute because there could not be any release in favour of the allottee. The drama staged by the allottee, the Trustees and the authorities could not conceal the fact that a fraud had been practised upon him. The Trustees were aware of his right and had not made known to him the de-requisitioning of the flat and the creation of a direct tenancy in favour of the 8th respondent. The delay in moving the petition was occasioned because he came to know the truth only after taking inspection of the records and proceedings in Misc. Petition No. 274 of 1979. Ex. R had to be quashed and respondents 1 to 3 had to be directed to release the flat and put him in possession thereof. ( 9 ) THE Trustees, the Union of India and respondent No. 7 have not filed a return in this case. On behalf of the first and third respondents i. e. the Commissioner of Police and the State of Maharashtra, a return has been filed by the Assistant Commissioner of Police and he denies that possession of the flat was taken from the petitioner. The contention is that it was the Trustees who had given possession of the flat and were therefore entitled to its return after the de-requisitioning. The petitioner had no right, title or interest in the flat. There had been unreasonable delay in the filing of the petition for which no satisfactory explanation was forth-coming. The petition gave rise to several disputed questions of fact and the resolution thereof was not permissible within the parameters of the High Courts jurisdiction under Article 226 of the Constitution. The de-requisitioning had taken place in the year 1973 whereas the petition was filed 11 years later i. e. in 1984. The petition suffered from a misrepresentation and suppression of material facts. For all these reasons it deserved to be dismissed with costs. Respondent No. 8 repeats these pleas and further contends that the petition had been designedly delayed. The de-requisitioning had taken place in the year 1973 whereas the petition was filed 11 years later i. e. in 1984. The petition suffered from a misrepresentation and suppression of material facts. For all these reasons it deserved to be dismissed with costs. Respondent No. 8 repeats these pleas and further contends that the petition had been designedly delayed. The judgement voiding continuance of requisitions made for the prosecution of the second world war had come in April 1981 and had been widely publicised. Petitioner however waited for three full years before moving the petition. As to his occupation of flat G in the capacity of a tenant, the petitioner could not have been ignorant for his retirement which took place in the year 1976 had been widely publicised and petitioner who lived and worked just opposite Fazalbhoy House could not plead ignorance thereof. Having regard to the delay, the petition deserved to be dismissed in limine for that reason alone. ( 10 ) HAVING regard to the foregoing, the issues arising would be:- (1) Was petitioner a tenant in Fazalbhoy House at the date of the passing of the order of requisition in June 1942? (2) Whether possession of flat G was taken from the petitioner whether directly or indirectly? (3) Relief?learned Counsel for the contesting respondents have taken great pains to emphasise that possession of flat G was delivered not by the petitioner, but the Fazalbhoys. In fact they have gone to the extent of suggesting that tenant occupants of all the flats which had been requisitioned had gone out pursuant to a termination of their tenancies. This contention is based on nothing more substantialthan the following words appearing in the Trustees letter at Ex. 2 to the affidavit in reply of an Assistant Commissioner of Police on behalf of respondents 1 and 3 dated August 1,1942 addressed to the Commissioner of Police: ". . . We served notices on all the tenants then occupying those flats, and we are glad to say that most of the tenants have vacated the flats. " m/s. Sawant and Saraf representing the contesting respondents contend that in 1942 the Rent Act was not in force and it did not require much except a quit notice to get the tenants evicted from the tenanted premises. Therefore, when Ex. " m/s. Sawant and Saraf representing the contesting respondents contend that in 1942 the Rent Act was not in force and it did not require much except a quit notice to get the tenants evicted from the tenanted premises. Therefore, when Ex. 2 speaks of the notices the said notices must have been ones determining the tenancies of the tenants. Had that not been the case, petitioner would have surely produced the notice served upon him. It is not possible to accept this submission. Quite apart from the fact that Ex. 2 does not speak of the notices being notices to quit under the Transfer of Property Act, there is other evidence to show that the notices given to the tenants were no more than mere intimations that they had to vacate because of the order of requisition. Had that not been the position petitioner would not have been writing to all manner of persons including the Commissioner of Police and the Trustees that he was entitled to a return of the flat. The Fazalbhoys replied to a communication or two sent to them by the petitioner and this was to dissuade his mind of the expectation that an order of de-requisition was imminent. The authorities plead ignorance of the rights of the petitioner. This plea of ignorance cannot be accepted for as directed by the Collector of Bombay, the petitioner had on 10-4-1947 written to the Commissioner of Police vide Ex. H beseeching him to pass an order of de-requisition and re-instate him in the flat. A reply was given to this communication and the same is at Ex. I, wherein the Commissioner of Police expressed regret at his inability to comply with the request of the petitioner. In the face of the letter at Ex. H and the reply at it does not lie in the mouth of the Commissioner of Police to plead that he was unaware of the claim of the petitioner. Counsel point to the absence of any letters from the petitioner in between 1947 and 1983. But petitioner could do no more for hardly one or two communications were acknowledged by the authorities and the impression created in his mind by the Fazalbhoys as also the authorities, was, that the order of requisition was going to remain in operation for quite sometime. But petitioner could do no more for hardly one or two communications were acknowledged by the authorities and the impression created in his mind by the Fazalbhoys as also the authorities, was, that the order of requisition was going to remain in operation for quite sometime. The argument that possession of the flat was not taken from the petitioner is being raised quite belatedly. All along petitioner was complaining that he had been made to surrender possession of the flat to enable the Fazalbhoys to comply with the requisition order. The Fazalbhoys themselves had admitted that tenants had vacated the flats so as to enable them to place the allottees of the Requisitioning Authority in possession of the flats. The order of requisition recited that there were occupants in the property and that the rent payable by the allottees from the Requisitioning Authority would be the same as was paid by them to the landlord. Does the actual delivery of possession by the Fazalbhoys to the Commissioner of Police absolve the contesting respondents of any liability? If the occupants had made over vacant possession to the landlord, they had done so because of the letter informing them of the order of requisition and the need to enable it to comply therewith. In a sense it was the landlord who was delivering possession to the authorities, for and on behalf of the occupant-tenants. Stress is being laid on this aspect of the case because something turns upon it, and that, in the realm of law. ( 11 ) COUNSEL for the petitioner relies upon (Tarabai Jivanlal Parekh v. Lala Padamchand) A. I. R. 1950 Bombay 89. That was a case very close on facts to the facts of this case. The head-notes thereto which covered the controversy arising in that case read as follows:- an order under Rule 75 (a) of the Defence of India Rules, 1939, requisitioning a flat is essentially of a temporary nature and does not create in the Government any vested interest in the tenancy. It does not affect the relationship of landlord and tenant or extinguish the vested tenancy in the tenant. It also does not operate as surrender so as to terminate the tenancy. . . . . It does not affect the relationship of landlord and tenant or extinguish the vested tenancy in the tenant. It also does not operate as surrender so as to terminate the tenancy. . . . . Possession of Government of a flat under a requisitioning order under Rule 75 (a) of the Defence of India Rules, 1939, does not amount either to eviction by title paramount or as frustration of adventure. Doctrine of frustration does not apply where there is a lease whether the term is one for fixed period or one which can be terminated by notice to quit, as the estate vested in the lessee by the lease is not extinguished by the order of requisition which is of temporary nature. . . . . Surrender consists in the yielding up of the term by tenant to landlord. There must be delivery of possession by the tenant to the landlord and the acceptance of possession by the landlord. It is a mutual act between the landlord and the tenant. Where the government takes possession of the property under a requisition order under Rule 75 (a) of the Defence of India Rules, 1939, there is no mutuality in it because they take possession both from the landlord and from the tenant. It cannot, therefore, operate as surrender so as to terminate the tenancy. Counsel representing the contesting respondents contend that the observations reproduced above have to be read in the context of the facts of that case, which were that the possession of the requisitioned premises was taken both from the landlord and the tenant. The tenant made clear his right to continue the tenancy during the period of requisition by payment of rent to the landlord and it was because of these two features that possession of the premises was directed to be returned to him. I cannot agree that this is the limited ratio of the case relied on behalf of the petitioner. What is of substance, is, the observation that an order of requisition does not efface the tenancy subsisting at the date of requisition. The order of requisition has the effect of eclipsing the tenancy. But the duration of the eclipse is co-terminus with the continuance of requisition. What is of substance, is, the observation that an order of requisition does not efface the tenancy subsisting at the date of requisition. The order of requisition has the effect of eclipsing the tenancy. But the duration of the eclipse is co-terminus with the continuance of requisition. As soon as the period of requisition is over, the tenancy springs back to life and the rights and obligations of the landlord and tenant come back to what they were. The following observation from (Whithall Court Ltd. v. Ettlinger) (1910) K. B. 680 quoted with approval in Tarabai (supra) brings out the point with clarity:- "it was held that the defendant had not been evicted by title paramount so as to suspend the tenancy, and further that the tenancy had not been determined by the requisitioning of the flats, because the doctrine of the termination of a contract by reason of the frustration of the adventure did not apply to the case of a contract which created an estate by demise. " ( 12 ) COUNSEL for the petitioner submits that no enquiry, though required by the statute, was made before passing of the order at Ex. R. I have reproduced the relevant portions of Act No. XVII of 1947 and the BLR Act to show that an enquiry is necessary before an order for return of the property is made. Now it is true that the word used in the sections of the two Acts is "may". that word by itself may not be decisive as to the construction to be placed on it. Whether this word is directory or mandatory depends upon a variety of factors. Counsel for the petitioner relies upon (The Official Liquidator v. Dharti Dhan (P) Ltd.) A. I. R. 1977 S. C. 740 where it was observed. "in fact it is not quite accurate to say that the word "may" by itself, acquires the meaning of "must" or "shall" sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling to the power compelling its exercise in a certain way. The context both legal and factual, may impart to the power that obligatoriness. "in the circumstances of this case was an enquiry necessary and did the State Government act with remissness in not conducting it? The only answer to these two questions is a ringing affirmative. Right till the year 1947, petitioner had been persistently requesting the authorities and the Trustees to make an order of de-requisition and return the flat unto him. As said earlier the Commissioner of Police was not unaware of this claim made by him. Inspite of this nothing wad done when it came to de-requisitioning the flat. The Fazalbhoys, for reasons of their own, agreed to confer a direct tenancy upon the 8th respondent and the Government was not too unwilling to let this bargain go through. After all it wanted to reward a retired employee of its and if he could get some benefits at the hands of an owner, the Government was not going to hang back. That explains the acrobatics of February 12, 1973. Never has the Government acted so fast as it did on that day. The Commissioner of Police issued Ex. R. The obliging Fazalbhoys pointed out the error and they and the 8th respondent took it upon themselves to rectify the same by the farce incorporated in Exs. 2 and 3 to the affidavit of the 8th respondent. The Fazalbhoys spotted the mistake and thrust upon the 8th respondent the role of representing the Government and also a beneficiary of the order of de-requisition. The mala fides are obvious and yet Mr. Saraf says the Government acted in good faith. 2 and 3 to the affidavit of the 8th respondent. The Fazalbhoys spotted the mistake and thrust upon the 8th respondent the role of representing the Government and also a beneficiary of the order of de-requisition. The mala fides are obvious and yet Mr. Saraf says the Government acted in good faith. Reliance is placed upon (Harish Chander Nigam v. State of Uttar Pradesh and others) A. I. R. 1980 S. C. 647 to justify the omission of the State Government and the Commissioner of police to make an enquiry as to the identity of the person entitled to the return of the property. In that case in relation to a statutory provision very similar to the 1947 Act and the BLR Act the Supreme Court said this:- "the enquiry evisaged under sub-section (1) of section 35 in necessitated only if facts and events taking place after requisition necessitate it. Otherwise not. "but that was a case in which the person seeking allotment was in possession from a Government agency under a provisional order of allotment. It was because of this that the omission to carry out an enquiry was over-looked. This is clear from the following observations in the judgment:- "it is plain on the facts placed before us that there was no final allotment of the plots in favour of the appellants. The allotment was only provisional subject to the approval of the Government. Possession had been given to them and before requisition the Industries Department had not recovered back possession of either of the two plots. "the constesting respondents rely upon the judgment of Pendse, J. , in Review Application No. 1 of 1986 arising from Writ Petition No. 2079 of 1984. In that case property belonging to four persons-hereinafter referred to as the "eranees" for the sake of convenience was requisitioned and made over to a Member of the Legislative Assembly. The Eranees moved the Court and had the continuance struck down. Knowing that their days were over, the authorities and the MLA put up a person known as "babulal Bubna" to make a claim that the flat should be returned to his possession as he was a tenant therein on the date the order of requisition had been passed. The writ petition filed by the tenant had been rejected and therefore he i. e. Bubna moved the review application. The writ petition filed by the tenant had been rejected and therefore he i. e. Bubna moved the review application. He could not satisfy the Judge in review of the very fact of his being a tenant, not to speak of his possession at the date of the order of requisition. In fact the order of requisition itself recited that the premises had not been used for the purpose for which they had been let out by the tenant, and it was this which had occasioned the requisitioning. In a case of that type it was not necessary to make an enquiry to find out the identity of the person to whom the premises had to be returned. Pendse, J. , therefore dismissed the review application. An appeal against that decision was preferred and the only change made was that Bubna was given a right to agitate his claim, if any, in a proper forum. This course cannot be adopted in the present case for here the petitioner and Bubna are not in comparable situations. In fact, Bubna was held to be guilty of acting as a front to cover up the designs of the Government and the MLA. The petitioner here was very much in possession on the date the order of requisition was passed. Even after the passing of the requisition order, the petitioner along with others facing an eviction, petitioned the Trustees to intercede on their behalf and obtain three months time to enable them to secure alternative accommodation. Timeand again the petitioner kept on repeating his difficulties in the absence of his family which absence was thrust upon his because of his not having a suitable place in which to accommodate his family. Forgetting all this, the Commissioner of Police suddenly passed an order in favour of the allottee. The Fazalbhoys were willing to go along with the Commissioner of Police in deceiving the petitioner. That is why not a whisper escaped from them when the State Government proposed an order of de-requisition so that a direct tenancy could be established between respondent No. 8 and the Fazalbhoys. The Fazalbhoys came out with a disclaimer-and a part of the truth-only when petitioner made it known that he was going to drag them to Court. Even at that time the Fazalbhoys did not think it necessary to reveal the entire truth to the petitioner. The Fazalbhoys came out with a disclaimer-and a part of the truth-only when petitioner made it known that he was going to drag them to Court. Even at that time the Fazalbhoys did not think it necessary to reveal the entire truth to the petitioner. ( 13 ) TWO obstacles are raised by the contesting respondents in the path of the petitioner suceeding in his petition. The first is that there has been gross delay in the filing of this petition. I do not see how it lies in the mouth of the contesting respondents to advance this plea. They are the perpetrators and beneficiary respectively of a fraud upon the statute-not to speak of a human being. They knew that petitioner had a legitimate claim over the petition flat. They did nothing to reveal the true position to him. Behind his back some drama was enacted and it is now sought to be pleaded that the petitioner is guilty of laches, delay and what not. Respondent No. 8 even goes to the extent of suggesting that petitioner was not unaware of his having acquired the rights of a direct tenant. This was because his retirement was widely publicised and petitioner was living and working right in front of Fazalbhoy House. But the petitioner did not have access to the documents which had passed between the Fazalbhoys and the Government and respondent No. 8. All of them took care to conceal from him the drama being enacted behind his back. In the face of this sustained concealment petitioner could not have known anything more than the fact of respondent No. 8 continuing in possession of the requisitioned flat. The order of de-requisition was not Gazetted. No enquiry was conducted and the fact that respondent No. 8 had retired from service assuming petitioner should have known this-would not by itself be notice to the petitioner that a direct tenancy had sprung up in favour of the 8th respondent. There is no law that only persons in active Government service are allowed to occupy or continue in occupation of requisitioned flats. There is no law that only persons in active Government service are allowed to occupy or continue in occupation of requisitioned flats. Instances of retired Government servants being allowed to continue in possession of requisitioned flats are a dime a dozen and judicial notice has to be taken of this fact by a Court where there is a flood of petitions against such occupants consequent to the Supreme Courts decision in (H. D. Vora v. State of Maharashtra) A. I. R. 1984 S. C. 866 : It was argued that disputed questions of act arise in this petition and that petitioner should be left to his remedy under the statute or the common law to get back possession of the flat. Far from their being any genuine dispute in relation to facts, the factual position is crystal clear. The authorities in collusion with the Fazalbhoys and the 8th respondent have somehow created a situation whereby petitioner could not get back possession of a flat, to which his entitlement is beyond question. That the contesting respondent want to pretend otherwise will not change the situation. If anyone is to be left to vindicate his right in a statutory forum it has to be the 8th respondent and not petitioner who is the victim of a misuse of statutory powers-the perpetrators being those at the highest level acting in collusion with the Fazalbhoys and the 8th respondent. This is a fit case for the intervention of the writ Court. The delay in this case is not fatal and even if there be any, it is such as cannot be allowed to perpetuate a gross misuse of powers. Hence the order. ORDER exs. R and S are hereby quashed. Respondents 1 to 3 and 7 and 8 do restore possession of petition flat G to the petitioner within six months as from today. They shall bear their own costs and pay those incurred by the petitioner. Rule in the above terms made absolute. Rule made absolute