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2001 DIGILAW 196 (CAL)

Dilip Kumar Roy v. State of West Bengal

2001-04-06

AJOY NATH RAY, SAMARENDRA NATH BHATTACHARJEE

body2001
JUDGMENT 1. This is an appeal from a judgment and order dated the 11th September, 1989 wherein the learned Single Judge dismissed the writ application of the writ petitioners. They are the appellants before us. 2. In the petition, prayers were made with regard to an order of requisition dated the 10th January, 1986 passed under West Bengal Act 2 of 1948 being the West Bengal Land (Requisition & Acquisition) Act, 1948. It was prayed that the said order be quashed. 3. An injunction was also prayed for whereby the respondents were asked not to give any effect or further effect to the said order. The writ petitioners also prayed for restraint against interference of the peaceful possession of the writ petitioners with regard to the first floor together with the outhouse of premises No. 14, Dum Dum Cossipore Road, popularly known as "Mahendra Kanon". 4. The entirety of the said premises in question is a huge area of land of approximate area 105 cottahs. 5. Nearly 100 cottahs out of this is still vacant land. 6 There is a structure being a building on about 4/5 cottahs in respect of which the writ petitioners had made the prayer as against the first floor. 7. The writ petitioners had asked for relief against an order of requisition of the entirety of 105 cottahs, being the said order dated 10.1.86. 8. The brief facts upon which the writ petitioners felt and ventilated their grievances are as follows. 9. The ownership of the writ petitioners or their predecessor is not in dispute. The first order of requisition was suffered by them in 1965, when the requisition was made under the Defence of India Act, 1962. 10. The Act spent its force in 1968 and there was no Chinese aggression thereafter, at least none to speak much of. But, the possession of the West Bengal Government's possession over the writ petitioners' land continued unabated without any authority of law. 11. The Rent Compensation had been fixed at Rs. 1,800/- only for the entirety of 105 cottahs. 12. The compensation is so shocking and so low that we have grave doubts whether the word compensation appropriately fits the circumstances. 13. Be that as it may, the illegal possession of the respondents continued unabated although the petitioners had come to Court complaining against the same. 1,800/- only for the entirety of 105 cottahs. 12. The compensation is so shocking and so low that we have grave doubts whether the word compensation appropriately fits the circumstances. 13. Be that as it may, the illegal possession of the respondents continued unabated although the petitioners had come to Court complaining against the same. Ultimately, an order of a Division Bench of our Court, by a reasoned judgment dated 6th December, 1985 pronounced that the respondents were guilty of colourable exercise of power; that even if they had made out a case of requisition under Section 3 (1) of the West Bengal Act V of 1947, apart from the possession taken under the Defence of India Rules, even then, the case of the respondents was wholly unsustainable as the said Act V of 1947 was only far the purpose of meeting temporary needs. 14. The aboved need of the respondents was a permanent one that of building a permanent Fire Brigade Station and also ancillary requirements like staff quarters. 15. We are told that there are Four Fire Engines under a shed of 2/3 cottahs but about 100 cottahs being vacant land with trees and ponds is still an important and undeniable fact. 16. The Division Bench on 6.12.1985 opined that since March 1980, the respondents had not paid for their use and occupation. it is undisputed before us that even the pittance of Rs. 1,800/- per month had remain unpaid on 6.12 1985 as was recorded by the Division Bench. 17. The Division Bench then proceeded to order as follows :- "We, accordingly, allow this appeal, set aside the order complained of and allow the writ application. We command the respondents to release the property and put the appellants in possession of the premises. There will be an unconditional stay of our order for a period of four weeks. On the respondents making payment upto date an ad-hoc basis for the use and occupation charges to the appellants at the rate last paid the respondents would be granted two months from this date to vacate the property. Such payment by the respondents and acceptance thereof by the appellants would be without prejudice and subject to the decision by the appropriate Court and/or authority for payment of use and occupation charges/profits. Such payment by the respondents and acceptance thereof by the appellants would be without prejudice and subject to the decision by the appropriate Court and/or authority for payment of use and occupation charges/profits. This order would be also without prejudice to the right of the respondents to proceed in accordance with law for acquisition of the premises. There will be no order as to costs." 18. Thus, as per the order of the Division Bench comprising of the Hon'ble Justice Chittatosh Mookherjee and the Hon'ble Justice Shamsuddin Ahmed (as Their Lordship then were), the stay of four weeks granted by the Division Bench expired on or about 3.1.1986. 19. The admitted position before us is that on or about that date, no possession of even one cottah of land was formally handed over by the respondents to the writ petitioners. There is no record before us that even one cattail of land has been given over possession of by the respondents to the writ petitioners as yet. 20. The respondents support their continued possession in this manner. They submit that two months' time was granted by the Division Bench to vacate the property if the payment upto date on ad-hoc basis were made by the respondents. These payments they made sometime on or about 24th January, 1986. Their case is that the payments being made within two months, their continued possession was not wrongful. 21. They rely, much more importantly, on the impugned notice dated 10.1.1986 for sustaining their possession. 22. This notice is again one of requisition. It is of requisition under West Bengal Act II of 1948, the relevant section of which being Section 3, under which the respondents proceeded, was repealed in 1994 by the West Bengal Act XIV of 1994. 23. Thus, the respondents can never proceed to acquire the land under the said repealed provision although they had purported to make a requisition once again after the Division Bench order. 24. From the order-sheets of the writ Court, we find as follows. 25. On 27.1.1986, the writ Court passed an interim order restraining the respondents from giving effect to or any further effect to the order of 10.1.1986. 26. On 7.2.1986, wrongly appearing in the Court's order-sheet as 7.2.1985, the said interim order was continued until further orders. 27. Thus, the purported requisition of 10.1.1986 all along remain stayed. 28. 25. On 27.1.1986, the writ Court passed an interim order restraining the respondents from giving effect to or any further effect to the order of 10.1.1986. 26. On 7.2.1986, wrongly appearing in the Court's order-sheet as 7.2.1985, the said interim order was continued until further orders. 27. Thus, the purported requisition of 10.1.1986 all along remain stayed. 28. By a further interim order of the writ Court passed on 4.7.1986, the respondents were allowed to work the Fire Brigade Department on the ground floor of the premises. 29. Whether the respondents once again took possession with their right hand from their left hand on or about 27.1 1986 before the interim order was passed, it is quite clear that they could not retain such possession once the requisition order made on 10.1.1986 was unconditionally stayed. 30. Thereafter, they were entitled only to the ground floor of the structure, and to possess the same as allowed by the order of 4.7.1985. 31. They have never taken any steps to acquire the property after the order of 6.12.1985 was passed and even if they had the best of intention of acquiring under Act II of 1948 with the preliminary requisition under that Act, that intention cannot be fulfilled now because the relevant section of the Act has now gone out of the Statute Book. 32. Moreover, we of the opinion, that since the Division Bench gave the respondents liberty to proceed in accordance with law for acquisition (and not requisition) of the premises, they were compelled to choose some method of acquisition which would be legal and not in breach of the directions of the Division Bench. This liberty to proceed in accordance with law for acquisition was not time limited. They were not bound to acquire within one week of one month or two weeks or two months. This being so the requisition order of 10.1.1986, which was not an acquisition order was wholly illegal. 33. The failure to hand over the property within two months was also a failure to obey the direction of the Division Bench. 34. They were not bound to acquire within one week of one month or two weeks or two months. This being so the requisition order of 10.1.1986, which was not an acquisition order was wholly illegal. 33. The failure to hand over the property within two months was also a failure to obey the direction of the Division Bench. 34. We are of the clear opinion that the requisition order of 10.1.1986 was passed in breach of the order of the Division Bench; a requisition and continued long possession without acquisition was frowned upon by the Division Bench on 6.12.1985 ; but the Government has done exactly that again, a purported requisition and made on 10.1.1986 and they have continued in possession until today (6.4.2001) without any acquisition and without handing over possession, though the 10.1.86 order has stayed. 35. We do not have any words which would sufficiently decry this type of action on behalf of the State-Respondents who are supposed to be model litigants. 36. We are afraid and we say this with due respect that the judgment under appeal is wholly unsustainable as it failed to strike down self willed and illegal acts on the part of the State Respondents. 37. The appeal is allowed. The judgment and order under appeal is set aside. 38. The writ petition is allowed. 39. There will be orders in terms of the Prayers (a) and (b) of the writ petition. There will also be an order upon the respondents and all their concerned Officers, agents and assigns to hand over vacant and peaceful possession of the entirety of the premises mentioned in the writ petition to the writ petitioners or their authorised representatives as expeditiously as possible but in any event not later than within four weeks from the date hereof. 40. We note with disapproval once again that the State has made no payment to the writ petitioners after the last payment was made on 24.1.1986 which we have noted above. 41. In our opinion, the State is under a liability not merely to pay Rs. 1,800/- per month but to pay appropriate damages for wrongful possession of 105 cottahs of land for the entirety of the period which has elapsed uptil now, i.e., from two months after 6.12.85 until now. 42. 41. In our opinion, the State is under a liability not merely to pay Rs. 1,800/- per month but to pay appropriate damages for wrongful possession of 105 cottahs of land for the entirety of the period which has elapsed uptil now, i.e., from two months after 6.12.85 until now. 42. The payments be made or recovered in any manner as might be open to the parties in accordance with law. Application being C.A.N. No. 650/2001 is also disposed of by this same order, as no question of any agreement to hand over part possession only now arises. Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocate for the parties upon the usual undertakings. Ray, J. Bhattacharjee, J. Liberty is granted to the learned Advocate for the appellants/petitioners to inspect the file of 1st. Court (C. O. No. 934 (W)/86). Type copies of all the interim orders upto the date before the passing of the final judgment in the writ be prepared for the Court by the petitioners/appellants. Sufficient spare copies be also prepared and be kept ready.