JUDGMENT 1. THE Petitioner is the owner of premises No. 1, Lloyds Road, Darjeeling, which comprises a one-storeyed building known as 'holy Lodge' and a twostoreyed cottage adjacent thereto and a vacant piece of land. 2. IN March, 1954, the Petitioner let out the Holy Lodge as well as the ground Floor of the Holy Lodge Cottage to the Bhutia Association (represented by Respondents 4-5), which is ia society registered under the West Bengal societies Registration Act, at a rent of Rs. 160/- per month. The Association defaulted in payment of rent and also sub-let portions of the demised premises to one Kazi, on account of which the Petitioner served a notice determining the tenancy with effect from August 1, 1959. Nevertheless, at the request of the Association, there was an agreement, as at Annexure A, by which the Association was allowed to continue in possession till January 1, 1962, on or before which date the association agreed to deliver vacant possession to the Petitioner. Thereafter, the said sub-lessee quitted and the possession of the portion occupied by Kazi having been restored to the petitioner, the rent payable by the association was reduced to Rs. 110/- and at that rent, the Association continued, since 1960, to remain in possession of two rooms with an attached bath room in the Holy Lodge and one room in the Holy Lodge Cottage. But the association again wrongfully sub-let one room to the "tribal Women's Industrial Co-operative Society'. The Deputy Commissioner, Darjeeling came upon the scene at this stage. By the letter at Annexure B, dated December 19, 1961, the Deputy commissioner (Respondent No. 3) requested the Petitioner to allow the association to remain in possession for another year, saying that the Association had approached him for 'requisitioning' the premises, but that he had advised them to come into an amicable arrangement with the Petitioner to remain in possession so long as alternative accommodation was not available. An assurance was given by the Deputy Commissioner that the association "would vacate the present one as soon as alternative accommodation is available." 3. An assurance was given by the Deputy Commissioner that the association "would vacate the present one as soon as alternative accommodation is available." 3. THE Petitioner, by his letter at annexure C, told the Deputy Commissioner that, at his request, the Association was being granted another year's extensors, up to December 31, 1962, on the same terms as in the Agreement at annexure A. A fresh agreement was accordingly executed by the Association as at Annexure E, by which the association undertook to deliver vacant possession by January 1, 1963. 4. THE Association, however, did not vacate the premises as agreed, on the other hand, the impugned order of requisition, under the West Bengal premises (Requisition and Control)Temporary Provisions Act, 1947 (hereinafter referred to as 'the Act') dated December 27, 1962 was served upon the Petitioner requisitioning 'for a public purpose', the entire premises, i.e., "holy Lodge, No. 1, Lloyds Rd., Darjeeling, with vacant land and a room on the ground floor of Holy Cottage, adjoining the main building". The Petitioner was directed to deliver vacant possession of the said premises to the deputy Commissioner or his representative on January 9, 1963 (Annexure F). The order was signed by the Deputy secretary Requisition, of the Government of West Bengal. On January 10, 1963 the Petitioner wrote the letter at Annexure G to the Deputy commissioner informing him that the major portion of the premises was in the possession of the Association and its sub-tenant namely, the Tribal Women's industrial Co-operative Society and that if the requisition was meant for the occupation of the Association, the Petitioner would be agreeable to extend their possession for another six months. The Deputy Commissioner does not appear to have been satisfied with this offer of the Petitioner, and on January 10, 1963, he served a fresh copy of the same requisition order upon the Petitioner, asking him to deliver possession of the premises on January 17, 1963 (Annexure H). This was followed by another letter of the Dy. Commissioner of march 25, 1963 (Annexure I) by which he stated that his representative had failed to take possession of one room each in the Holy Lodge and the Holy cottage, which were under lock and key. This was followed by another letter of the Dy. Commissioner of march 25, 1963 (Annexure I) by which he stated that his representative had failed to take possession of one room each in the Holy Lodge and the Holy cottage, which were under lock and key. The Petitioner was,, therefore, directed to deliver possession of the said rooms by March 30, 1963, failing which forcible possession would be taken by Respondent 3, under section 9 of the Act. The Petitioner, thereupon, sent representation to the Government not to give effect to the order of requisition. 5. AS a result of these representations, there was eventually an inquiry held on August 5, 1963, by Respondent 3, at which the Petitioner's representative, s. R. Roy Choudhury, was present. In the meantime, by letter of july 27, 1963, the Government had informed the Petitioner (Annexure M)that the matter was under examination and that the decision of the Government would be communicated to the Petitioner in due course. But since then, no decision of the Government has been communicated to the Petitioner on the other hand, the Association has, on May 13, 1964 (Annexure O) that it has deposited a certain sum with Respondent 3 as the alleged rent for the requisition premises, as settled by the Government, for the year 1963. 6. THE Petitioner's complaint is that though the matter was under consideration by the Government, Respondent 3 was seeking to give effect to the impugned order of possession. The petitioner challenges the order as mala fide and illegal. There are separate affidavits-in-opposition by the government (Respondents 1/2) and by the Dy. Commissioner (Respondent 3). 1. A peculiar feature of these two affidavits is that in the Government affidavit it is stated that upon a report by the Dy. Commissioner, the two rooms of which the Dy. Commissioner did not get possession have been derequisitioned and that the Dy. Commissioner has been informed accordingly. Curiously, however, no such order of de-requisition has been annexed to the government affidavit nor has it been produced before me. More curious is that fact that the Dy. Commissioner, in his affidavit, makes no mention of anything of this nature. In the background of the prolonged story involved in this case, the affidavit of the Government, affirmed by the Deputy Secretary himself, should have been more responsible. More curious is that fact that the Dy. Commissioner, in his affidavit, makes no mention of anything of this nature. In the background of the prolonged story involved in this case, the affidavit of the Government, affirmed by the Deputy Secretary himself, should have been more responsible. Upon this pleading of the Government, the following consequences should take place, apart from anything else : (a) The Government should be directed to issue, within a reasonable time, an order de-requisitioning the rooms referred to in the Dy. Commissioner's letter at Annexure I and to allow the Petitioner to recover possession of the said two rooms. (b) The Government should fix or re-fix the proportionate rent for the requisitioned premises, consequent upon such de-requisition, and pay the arrear of such rent due to the Petitioner, within a reasonable time. (c) The Government should be directed to pay the Petitioner the costs of this litigation, inasmuch as the said decision of the Government was never communicated to the Petitioner, admittedly. II. The Petitioner is not, however, contented with this. He wants to get back the remaining portion of the premises as well, on the ground that the impugned order of requisition is mala fide, because the Dy. Commissioner has got this order issued by the Government, to help a recalcitrant tenant, namely, the Association, in its dispute with the landlord. In this connection, the Petitioner relies upon the observations of Banerjee J. in (1) Amiya prova v. Collector, 66 CWN 456. But the observations in this decision cannot be read without noticing the observations of the Supreme Court in cases under the Land Acquisition Act, because both requisitioning and acquisition are species of exercise of the power of Eminent Domain, as embodied in Axticle 31 (2) of our Constitution, and, in either case, a condition precedent is existence of a public purpose behind such proceeding. As held by the Supreme Court, an order of acquisition can be challenged as mala fide only where the real purpose for the acquisition was a private purpose or there was no purpose at all behind the action of the Government (2)Somwanti v. State of Punjab, AIR 1963 SC 151 ; (3) Agarwala v. State of West Bengal, AIR 1965 SC 995 . 7. 7. THE real question for determination, therefore, whenever, an order of requisition or acquisition is challenged as mala fide, is whether then; is a public purpose behind the proceeding,. It has been held in various cases that even where the immediate beneficiary of an order for requisition or acquisition be a private person, the order will be upheld if there is an ultimate private purpose behind it (4) State of Bombay v. Bhanji, (1955) 1 scr 777 ; (5) Barkya v. State of bombay, AIR 1960 SC 1203 (1205); (6)State of Bombay v. Nanji, (1956) SCR 18. A public purpose is involved if the purpose for which the requisition or acquisition is made results in some benefit to the public, which includes a considerable portion of the community, (5) Barkya v. State of Bombay, ibid. 8. IT has further been held that in order to support the acquisition of lands under section 4 of the Land acquisition Act for the purposes of a body, involving a public purpose, the government need not show that attempts for acquiring the land by that body by private treaty had been made and that has failed (7) Ambalal v. Ahmedabad Municipality, AIR 1968 SC 1223 (1226, para. 9). If that be so, it cannot be held that the power under section 4 cannot be exercised while negotiations with the landlord for some private arrangement are going on. It is not possible to agree with the view taken in 66 CWN 456, in view of the foregoing Supreme Court decisions,. There is no other condition precedent to the exercise of the power under section 4 except those mentioned in that section itself. The question for determination, therefore, is whether any public purpose was involved in acquiring the disputed premises for the purposes of the Bhutia Association. 9. THAT the Association for which the deputed premises has been requisitioned in an Association for the welfare of the Bhutias, and that it is engaged in doing 'social work' is admitted in the Petitioner's own letter at annexure C. This must, therefore, be held to be a 'public purpose'. The Petitioner urges in para. 2 of the Petition, however, that the said Association have no activities of its own and that is why the Government itself has withdrawn the aid which it previously used to give to the Association. The Petitioner urges in para. 2 of the Petition, however, that the said Association have no activities of its own and that is why the Government itself has withdrawn the aid which it previously used to give to the Association. In the counter-affidavit filed on behalf of the State it is averred that the association is carrying on 'welfare' work amongst the Bhutia people. It cannot, therefore, be contended that the accommodation of the Association would not be a public purpose. 10. THE Petitioner next urges that the fact that the Association has sublet a portion of the premises to another body, namely, the Tribal Women's industrial Co-operative Society, would show that there is no genuine need for the Association. It is to be noted, however, that in the petition itself, though the petitioner complained of sub-letting of one room by the Association to the tribal Women's Society in para. 8 of the petition, that room was not particularised and it was not even made clear whether that one room was in the Holy Lodge or in the Cottage. The exact date of the sub-letting is also not mentioned in the petition. But from the arrangement of paras. 8 and 9 of the petition, it may be inferred that it took place some time between 1960 and. December, 1961. But in the fresh agreement with the Association entered into by the Petitioner on December 29, 1961, (Annexure E), there was no mention of any portion having been in the possession of any sub-lessee and nothing to safeguard the interests of the Petitioner for the eviction of that third party, as at Annexure A. From annexure J., written by the Petitioner as late as March 28, 1963, also it would appear that the allegation of sub-lease in favour of the Tribal Women's Society, as a body distinct from the Association, is an afterthought, raised, for the first time, in Annexure L. The only grievance made in Annexure J was that the order of requisition comprised two rooms besides those which were in the occupation of the Association. Now that the Government has agreed to derequisition those two rooms, as specified in the counter-affidavit of the Dy. Secretary, the Petitioner should have no further grievance. 11. Now that the Government has agreed to derequisition those two rooms, as specified in the counter-affidavit of the Dy. Secretary, the Petitioner should have no further grievance. 11. THE impugned order of requisition will, therefore, be allowed to stand but subject to the condition of derequisitioning the said two rooms and the consequential directions as stated earlier in the judgment. 12. IN the result, this Rule is made absolute in part as follows : respondents 1-3 be restrained from enforcing the impugned order of requisition at Annexures F. H., until- (a) An order de-requisitioning the two rooms referred to at Annexure I and in para. 6 of the Affidavit of the Deputy secretary on behalf of Respondents 1-2 is issued; (b) A rent payable for the remaining portion of the premises during the period of requisition is settled and the petitioner is paid arrears of such rent up-to-date, after initiating the proceedings within the date specified below. As indicated earlier, Respondents 1-3 shall pay the costs of the petitioner in this Rule, assessed at five gold mohurs. After hearing Mr. M. C. Chakrabarty, learned Advocate for the respondents, who undertakes on behalf of the Government to comply with the directions contained above, it is further ordered that the respondents will camply with the two clauses of the directions just given by the 15th. January, 1970, in default of which the impugned order of requisition will stand cancelled.