Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 346 (CAL)

HANUMANMAL SURANA v. UNION OF INDIA

2002-05-20

AMITAVA LALA

body2002
A. LALA, J. ( 1 ) THIS writ petition is made by one Shri Hanumanmal Surana and four others being heirs of one Joychandmal Surana, since deceased, heirs and representatives of one Tolaram Surana since deceased one of the sons of Joychandmal Surana also since deceased being petitioner Nos. 6a to 6d. They have made their respective grievances as against 1, 4 and 5 the Secretary, Ministry of Defence and others and respondent Nos. 2 and 3, Life Insurance Corporation of India and another. From the nature of the grievances I find that the actual relief sought for by way of writ of mandamus against such respondent Nos. 2 and 3 for taking possession of the respective plot of land from 1, 4 and 5 to transfer the plot to the petitioners by executing necessary conveyance after accepting the balance consideration and deliver peaceful vacant possession thereof to them. ( 2 ) FROM the very inception of final hearing before this Court a question cropped up as to whether such relief can be granted by the writ Court or not. ( 3 ) A little background of the case is required to be discussed hereunder. One M/s. Hindusthan Co-operative Insurance Society Ltd. came to own the lands for society's development scheme commonly known as New Alipore Development Scheme. One Biral Chandra Banerjee offered to purchase the land for a consideration of Rs. 1810/- per cottah in 1945 subject to express terms and conditions. One after another the property was transferred from one to another and ultimately the present petitioners or their predecessor-in-interest claimed to be the purchasers of such plot of land. During such tenure, an Act being Life Insurance Corporation Act, 1956 came into force whereunder all the assets and liabilities appertaining to the Life Insurance business of various companies were transferred and/or vested to the Life Insurance Corporation of India being respondent No. 2 herein including Hindusthan Co-operative Society. From the original agreement I find that there is clause of assignment which is as follows:"the terms 'applicant' and 'purchaser' shall whenever wheninbefore appearing include his heirs, representatives and assigns and the words imparting singular number shall include the plural and the word imparting masculine gender shall be taken to include females. " ( 4 ) THIS plot of land was requisitioned by the Government of India, Ministry of Defence. " ( 4 ) THIS plot of land was requisitioned by the Government of India, Ministry of Defence. A writ petition was moved being Civil Order No. 1279 (W)/1996 making self-same parties as party respondents therein whereunder and order was passed on 25th August, 1987. It appears that Court held as follows:"as it appears the only plea taken by the Life Insurance Corporation was that unless the properties are derequisitioned hey cannot convey the same to the writ petitioners and deliver possession. Under these circumstances, it cannot be said that the writ petitioners have no locus standi to file this writ application. Since respondents failed to justify why they are continuing with requisition for such a long time, I direct the respondent Nos. 1, 2, 6 and 8 for releasing the said property from requisition is not already recorded and to make over possession to those who are entitled to the same. With regard to the other prayer of the writ petitioners for a direction on the Life Insurance Corporation to convey the property to the writ petitioners, I am unable to give any relief to the writ petitioners. Since it is a matter of agreement between the parties, the writ petitioners are at liberty to take legal action as may be advised in accordance with law. With direction as above this application stands disposed of without any order as to costs. " ( 5 ) AFTER the order was passed by the appropriate authority the Ministry of Defence formally intimated to the appropriate authority of the Life Insurance Corporation as well as petitioners' advocate that the land had automatically been released from requisition with effect from 10th March, 1987 in view of the appropriate provisions of the Act applicable thereunder. In such communication reference to the above order of the High Court was also given. Therefore, contents of the letter can be counted in two ways i. e. one is regarding requisition to be free prior to the order passed by this Court as well as formal compliance of the order of this Court. Be that as it may, now before this Court, Ministry of Defence of India is not the rival contesting parties. The real contesting party is the Life Insurance Corporation of India who refused to execute a document in favour of the petitioners hereunder. Be that as it may, now before this Court, Ministry of Defence of India is not the rival contesting parties. The real contesting party is the Life Insurance Corporation of India who refused to execute a document in favour of the petitioners hereunder. ( 6 ) IT appears to this Court that the petitioners are very much aggrieved because of the reason that the refugees who unauthorisedly occupied the properties were evicted by them and fencing and/or brick built wall surrounding the property was built at their cost to which the defence has fullest knowledge. In a similarly placed situation, the Life Insurance Corporation released land and/or properties in favour of the respective purchasers. But, surprisingly, such respondent has taken a contrary stand herein in executing the documents in favour of the petitioners. I find from the documents annexed to the writ petition that the Under-Secretary to the Government of India, Ministry of Defence had given certain authority to them to make fencing around the vacant land to protect the same. At the interim stage, by an order of a Bench of this Court a Special Officer was appointed, who, in turn, reported to this Court that the petitioners are in actual possession of the land. The petitioner has very much relied upon a letter of the General Manager of the Life Insurance Corporation of India dated 18th October, 1965 wherefrom it appears that they have stated that there is no objection to give delivery of possession to the recorded purchasers provided Defence of India derequisitioned the plot of land and give them peaceful and vacant possession. The similar letter was also written by them on 27th/28th November, 1984. Therefore, the petitioners legitimately expects that when there is long tenure of possession of the land taking all sorts of pain, Life Insurance Corporation can not take any fictitious stand ignoring their right. ( 7 ) LIFE Insurance Corporation by the pen of the then Zonal Manager contended that such authority has not taken any arbitrary stand. The authority has only given an instance to deliver the plot of land to one of the purchasers because of the reason that the Government of India, Ministry of Defence gave vacant possession of said plot of land to them to take possession and it was handed over to such person in terms of the contract. The authority has only given an instance to deliver the plot of land to one of the purchasers because of the reason that the Government of India, Ministry of Defence gave vacant possession of said plot of land to them to take possession and it was handed over to such person in terms of the contract. But it appears that in the present case, during the subsistence of the requisition of the Ministry of Defence, Government of India, the writ petitioners were allowed to construct walls and build garage without any permission from Life Insurance Corporation of India. Therefore, if the Government of India does not give back vacant possession of land to the Life Insurance Corporation, they will not be in a position to hand over the same. The Life Insurance Corporation can only take possession in its normal, natural state in which it was originally requisitioned. The present state of the plot has lost its original identity and it has fundamentally changed due to construction and reconstruction by the petitioners, and the same is contrary to law. ( 8 ) ACCORDING to Mr. Saktinath Mukherjee, learned senior counsel, appearing on behalf of the petitioners, excepting formalities to be completed by the life Insurance Corporation no other functions are left open for the Corporation to do. The petitioners have accrued certain rights by way of assignment. Such right of assignment is arising out of agreement and there the petitioners are the assignees. Therefore, they are entitled to benefit of the contract whereunder the right of assignment has been given. ( 9 ) MR. Alok Banerjee, learned counsel, appearing on behalf of the Corporation contended that they have no formal knowledge of such right of assignment to the petitioners. Moreover, today the price of land of such locality of the City of Calcutta is tremendously high in comparison to the price in which it was originally given to one, Birol Chandro Banerjee. Therefore, if in the garb of such assignment the value has been fixed by the own whims of private individuals the same cannot be accepted by a Governmental body in the manner as proposed. Mr. Mukherjee has seriously objected with regard to the objection of the Corporation in respect of right of assignment having been available in the original clause of the agreement. Mr. Mukherjee has seriously objected with regard to the objection of the Corporation in respect of right of assignment having been available in the original clause of the agreement. He repeatedly said that broadly speaking the benefit of a contract can be assigned but not the burden subject to some exceptions of strictly personal contracts that have been mentioned as affecting the powers and duties of executors. Therefore, there is nothing wrong in the right of assignment. The original purchaser has transferred his benefit to another and in such way ultimately to the petitioners. Corporation is nobody to notify such assignment because it is not a burden according to them. ( 10 ) ACCORDING to me, it is formally a property of the body corporate of Union of India which was requisitioned by the Government of India, Ministry of Defence at a point of time. It has derequisitioned by them in favour of such body corporate. Therefore, the title of the property is lying with them. Hence, even if, for the sake of argument I hold that the petitioners are in possession how the writ Court will direct the Corporation to give title to them. In other words, such direction definitely prejudice the interest of the Corporation when the other hand, adverse possessory right, if any, of the petitioners will be established. It is a dispute between possession and title. In any event, writ Court cannot declare the property is free from all encumbrance. ( 11 ) ACCORDING to the respondents, this is a disputed question of fact cannot be said to be an ideal formality. Dispute has to be there to understand the situation. In the instant case, there is no dispute other than completion of the formalities by the Life Insurance Corporation which could not have been done due to requisition of the Ministry of Defence of India. This cannot be the dispute which can be decided in a regular suit. This is an arbitrary action arising out of an agreement. In AIR 1990 SC 1031 (Mahabir Auto Stores and Ors. v. Indian Oil Corp. and Ors.) it was held that Article 14 of the Constitution can be invoked in respect of entering and not entering into contract when it is not reasonable, unfair, unequal, discriminatory and in violation of principle of natural justice. In AIR 1990 SC 1031 (Mahabir Auto Stores and Ors. v. Indian Oil Corp. and Ors.) it was held that Article 14 of the Constitution can be invoked in respect of entering and not entering into contract when it is not reasonable, unfair, unequal, discriminatory and in violation of principle of natural justice. He further relied upon AIR 1991 SC 537 (Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh and Ors.) and stated that even in contractual field principle of Article 14 applies. It would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. This scope and permissible ground of judicial review may vary but that does not justify total exclusion and applicability of Article 14. This is more so when modern trend is also to examine the reasonableness of a term of such contract where bargaining is unequal so that this is not negotiable contract but standard form of contract between unequals. ( 12 ) LEARNED counsel appearing on behalf of the respondent Corporation contended that there is no question of unequal bargaining position between the parties in the present case. It is a pure and simple private dispute which cannot be entertained by the writ Court. He has distinguished the ratio of Kumari Shrilekha Vidyarthi's case (supra) in various ways and ultimately drawn attention to the latest judgment of the Supreme Court. I find in such judgment being AIR 2002 SC 206 (State of Bihar and Ors. v. Jain Plastic and Chemicals Ltd.) it was held that a breach of contract would depend upon the facts and evidences and is not required to be decided or dealt with in a writ petition. Serious disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of the evidences which may be laid by the parties in a properly instituted Civil suit rather than by a Court exercising prerogative of issuing writs. From another judgment reported in AIR 2000 SC 2573 (Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors.) I find that a contract would not become statutory simply because it is for construction of a public utility and it has become awarded by a statute. A statute may expressly or impliedly confer power on a statutory body to enable it to discharge its functions. v. Kurien E. Kalathil and Ors.) I find that a contract would not become statutory simply because it is for construction of a public utility and it has become awarded by a statute. A statute may expressly or impliedly confer power on a statutory body to enable it to discharge its functions. Dispute arising out of terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principle to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of Contract Act. Every act of a statutory body need not necessarily be involved and a statutory power will be exercised. ( 13 ) ONE other aspect of the matter has not been taken note of by the petitioners i. e. the order of a writ Court passed in the earlier writ petition. There, the position was similarly placed with the present one. The only difference is that at present the land is substantially free from requisition and at that material point of time it was not free from requisition. But position in respect of the petitioners claim as against Life Insurance Corporation was identical with the present one. Even after recording the only plea of the Corporation is that it cannot be conveyed without derequisition by the Defence of India, no order was passed against them and ultimately it was held that such relief is a matter of agreement between the parties and petitioners are at liberty to take legal action in accordance with law. Therefore, such legal action cannot be a subsequent writ. The direction of the writ Court implies that since this is a dispute arising out of the agreement an appropriate jurisdiction of the Court is to be invoked. The mandate of a writ Court was expressly or impliedly to go for a Civil suit. Having long tenure of possession may be a good ground of adverse possession. Similarly, having so much correspondence may be a good ground for obtaining a decree for specific performance. But can it be said that writ Court will give the title of the petitioners in the way as proposed or decree the same. Having long tenure of possession may be a good ground of adverse possession. Similarly, having so much correspondence may be a good ground for obtaining a decree for specific performance. But can it be said that writ Court will give the title of the petitioners in the way as proposed or decree the same. Would it be valid title" ( 14 ) THEREFORE, I am not with the petitioners at all. Hence, I have no other alternative but to dismiss the writ petition. Interim order, if any, stands vacated. No order is passed as to costs. However, this order will not prevent the petitioners to go for a regular suit or any proceeding and in such case the same will not be hit by principles of res judicata and/or will be treated as barred by law of limitation. ( 15 ) AT the time of delivering the judgment, the learned counsel appearing for the petitioners asked for certain period of time so that before institution of the suit, the property cannot be transferred to a third party. Such time is granted for a period of two months from the date of communication of this order. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned advocates for the parties within two weeks from the date of putting the requisites. Petition dismissed