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2001 DIGILAW 789 (CAL)

PODDAR UDYOG LIMITED v. STATE OF WEST BENGAL

2001-12-24

KALYAN JYOTI SENGUPTA

body2001
KALYAN JYOTI SENGUPTA, J. ( 1 ) THE Court: This writ petition is directed against the order of requisition dated 14th March 1996 whereby the First Land Acquisition Collector, Calcutta has requisitioned and further took possession of first and second floors of the building and premises situate at 18, Rabindra Sarani, Calcutta-700 001 (hereinafter referred to as the said property) measuring 37. 062 sq. ft. of floor space. It is appropriate to record that this writ petition was once heard and disposed of in favour of the writ petitioner by His Lordship The Hon'ble Mr. Justice Ajoy Nath Ray on 30th April 1998. However, on appeal, judgment and order of the learned trial Judge was set aside and the matter has been remanded for fresh hearing. ( 2 ) THE fact of the case is very simple. By and under a registered lease deed dated 23rd February 1984 one M/s. Hope (India) Limited being the predecessor-in-interest of the said property as the lessor and the Governor of West Bengal as the lessee the said property was demised in favour of the lessee for a period of sixteen years commencing from 1st April 1980. The said property was thereafter accommodated for the Urban Development Department (Town and Country Planning Branch) of Government of West Bengal. The original lessor was amalgamate with one company, viz. , Multiplex Business Limited being the successor-in-interest of the said property. The said Multiplex Business Limited changed its name as being Poddar Udyog Limited being the present writ petitioner No. 1 herein. It appears that there was dispute between the present writ petitioner and the State of West Bengal in connection with the said lease. As such a Civil Suit was filed for eviction in this Hon'ble Court being Suit No. 1 of 1994. The suit resulted in compromise on certain terms whereby it was agreed that the State of West Bengal would continue to occupy the said property inter alia on the terms and conditions stated in the said indenture except that monthly rent would be paid at the rate of Rs. 10/- per sq. ft. for the residue period of the lease with effect from April 1, 1988. Therefore, under the terms and covenant of the said deed of lease the period of lease was to expire on 31st March 1996. 10/- per sq. ft. for the residue period of the lease with effect from April 1, 1988. Therefore, under the terms and covenant of the said deed of lease the period of lease was to expire on 31st March 1996. A few months before expiry of the aforesaid date the writ petitioner demanded of the Government of West Bengal to vacate and quit the said demised property on expiry of the lease. It appears that before expiry of the lease, the First Land Acquisition Collector by the impugned order dated 14th March 1996 has requisitioned the said property and possession has been given on paper to the same department who was in possession and occupation of the said property on 22nd March 1996. ( 3 ) THE First Land Acquisition Collector has filed an affidavit to support the order of requisition. It has been simply stated in the affidavit that on receipt of requisition order dated 14th March 1996 from Land and Land Reforms Department, Requisition Branch, for requisitioning the said property for a public purpose for providing office accommodation to the Urban Development Department (Town and Country Planning Branch) of Government of West Bengal took possession of the requisitioned premises from the occupant, i. e. , the Urban Development Town and Country Planning Branch. It is alleged in the affidavit of the respondent that possession was re- delivered to the same branch. None appears on behalf of the owner despite notice being given. It is admitted position that the requisitioning department has been in possession. So, just paper possession was handed over to an officer of the aforesaid department. It is further stated in the affidavit a sum of Rs. 3,70,620/- has been deposited in favour of the First Land Acquisition Collector towards ad hoc payment on account of occupation charges. ( 4 ) REQUISITIONING department has also filed an affidavit seeking to explain the public purpose and the importance of the department. It is stated that this department is controlling various autonomous bodies which are created for development of various regions of this State and the act and activities of the aforesaid autonomous bodies are to be supervised and controlled by this department. According to the deponent of respondent No. 4 that need of the said department is for public purpose and the same has been admitted by the writ petitioner. ( 5 ) MR. According to the deponent of respondent No. 4 that need of the said department is for public purpose and the same has been admitted by the writ petitioner. ( 5 ) MR. Ranjan Deb, learned senior advocate in support of the writ petition contends that the impugned order of requisition is wholly malafide as the said property has been in possession at the time of requisition by the same department in whose favour and for whose purported need the said property has been requisitioned, in terms of the valid lease deed dated 23rd February 1984 which was due to expire on 31st March 1996. ( 6 ) HE submits further that in order to avoid contractual obligation to deliver and vacate the said property, this purported order of requisition has been passed and whereby the statutory provision has been grossly and arbitrarily abused to the utter prejudice to the right of the petitioner. He submits that factum of malafide action would appear from the order itself as the requisition order was served on Friday, March 22, 1996 at 3. 30 p. m. and possession was allegedly taken and redelivered on Monday, March 25, 1996 at 10. 45 a. m. The petitioner had no opportunity in substance to take action as the petitioner could not take any action before expiry of the lease which was subsisting and valid. He submits that a defaulting tenant cannot be protected by operation of another law. In support of his submission he has relied on a decision of a learned single Judge of this Court rendered in case of Smt. Purnima Mukherjee and Ors. v. The State of West Bengal and Ors. reported in 1990 (I) CLJ 541 . ( 7 ) MR. Saptansu Bose, learned Advocate appearing on behalf of all the respondents supports the order of requisition and contends that undisputedly the need of the department is for the public purpose. So when public purpose is established it is not for the writ Court to question the same as plethora of decisions of Supreme Court and High Courts do not permits the Court to enquire into the factual aspect of the need. He submits that mere allegation of malafide action of State will not be good enough to set aside any order of requisition and there is no particulars whatsoever to support the allegation of malafide. He submits that mere allegation of malafide action of State will not be good enough to set aside any order of requisition and there is no particulars whatsoever to support the allegation of malafide. In support of his submission he has relied on various decisions reported in AIR 1963 SC 151 , (1995)2 SCC 422 , (1998)1 SCC 572 , (1997)9 SCC 113 , (1997)3 SCC 398 , (1995)1 CHN 91 , AIR 1974 SC 553, AIR 1979 SC 220 and AIR 1983 Cal 61 . ( 8 ) HAVING heard respective submission and contention of the learned Advocates and having examined the materials placed before me, I am to consider in this case simple point is that whether there is any malafide action on part of the respondent authorities in passing order of requisition of the said property which is possessed and occupied pursuant to another contract by the same department for whose benefit the property is requisitioned. ( 9 ) THERE is no dispute and in fact it is settled law that once the decision of the Government for public purpose is mentioned in the order of requisition unless of course it is shown otherwise, the Court cannot question order of requisition. However, there are exceptional circumstances when the Court can examine bonafide in the action but that would be in a rare case, as I find one of such rare case in the reported decision cited by Mr. Deb wherein Justice Susanta Chatterjee (as His Lordship then was) was pleased to hold an order of requisition being malafide as the same was passed to protect a private party's interest through the operation of law. In this case the action has been taken by the Government not for the benefit of the private person but to protect the Government department who is otherwise bound by contractual obligation which is of a private nature. The said property has been under possession of the Urban Development Department (Town and Country Planning Branch) of Government of West Bengal under the deed of lease which was subsisting on the date of order of requisition. I have gone through the impugned order of requisition. It merely mentioned the premises described in the schedule are needed for public purpose for providing office accommodation to the Urban Development (Town and Country Planning Branch) of Government of West Bengal. I have gone through the impugned order of requisition. It merely mentioned the premises described in the schedule are needed for public purpose for providing office accommodation to the Urban Development (Town and Country Planning Branch) of Government of West Bengal. On the date of this order of requisition there was no need of the aforesaid department for requisition of a property, as the said department had been in possession on the self-same property. Sub-section (1) of section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act 1947 provides for requisitioning of the premises are for present need as well as need in near future. Language of the said sub-section (1) of section 3 is clear enough to come to conclusion as above. So, I reproduce the same hereunder:"section 3 (1 ). Whenever it appears to the State Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may, by order in writing, requisition such premises :" ( 10 ) SO, it appears to me that when a letter was served for vacating of the said property, the department has hastily issued the aforesaid order of requisition so much so that the said department is not evicted by due process of law. According to me that need for possession of the aforesaid department was felt by the Government to be subserved under a contractual obligation in terms of the aforesaid lease deed and for fixed period. It was, therefore, felt and decided that accommodation for the lease period of the said department would be good enough and that is why no order of requisition was previously passed. When Government has decided to take a property under the contractual obligation of a private nature the same department cannot be allowed to take advantage of statutory provision without however having discharged the contractual obligation first. Fairplay of Government action while the law being applied can be said to have been existing when there is no oblique purpose. The law cannot be pressed in to operation for protecting defaulter in discharge of lawful contractual obligation. What can be more misuse or abuse of power when Government department itself brazenly utilizes machinery of law to shield its contractual obligation of discharged. The law cannot be pressed in to operation for protecting defaulter in discharge of lawful contractual obligation. What can be more misuse or abuse of power when Government department itself brazenly utilizes machinery of law to shield its contractual obligation of discharged. ( 11 ) I have no doubt in my mind that the provision of the aforesaid Act has been resorted to in order to steer clear of the contractual obligation of the respondent department. This action before expiry of the lease by resorting to the aforesaid statute is per se malafide. The bonafide action would have been on part of the Government had it vacated the said property after expiry of period of the lease discharging its obligation and requisitioned the property. Government is supposed to be a model landlord as well as model tenant and if the Government department totally ignores or by passes its contractual obligation and sets an example in doing so then a dangerous signal of encouraging to flout the law would be sent to public. The law is equally applicable to both the litigants, viz. , private individual and the Government. The Government cannot take refuge under protection of law to subserve oblique purpose. The law has to be applied for the bonafide action and not to protect a defaulting person may be a Government or otherwise. So, this order of requisition is wholly malafide and subterfuge to protect and cover the defaulting itself as lessee and this cannot be allowed. I find support of this observation from the judgment of Justice Susanta Chatterjee (supra ). Therefore, the order of requisition is bound to be set aside. Mr. Bose's argument is not disputed but I am unable to accept the same as the records themselves glaringly suggest not only malafide in the action but sheer abuse of law without any shadow of doubt. ( 12 ) THEREFORE, I set aside the order of requisition dated 14th March 1996. Accordingly, I appoint Mr. Ramesh Sharma of Bar Library Club, practising Advocate as a Special Officer who shall take symbolic possession forthwith. He shall be paid initial remuneration assessed at 500 Gms. by the petitioner at the first instance and thereafter the same be reimbursed by the respondents. Accordingly, I appoint Mr. Ramesh Sharma of Bar Library Club, practising Advocate as a Special Officer who shall take symbolic possession forthwith. He shall be paid initial remuneration assessed at 500 Gms. by the petitioner at the first instance and thereafter the same be reimbursed by the respondents. I grant time for a period of two months to vacate and quit the said property, failing which the Special Officer shall take all lawful steps with the police for taking physical possessor of the said property. Mr. Bose has prayed for stay formally. I do not think that any stay is necessary since I have granted two months' time to vacate the premises in question. Petition allowed.